Traditionally, society has labelled gender as either “female” or “male”, which is assigned when a person is born. While some individuals identify themselves as “female” and some “male”, it is not uncommon where people identify themselves as a gender which is different to what they were born with. Other than identifying as “non-binary”, such change is defined as “transsexuality”. For transgender individuals, it could be unclear what the criteria are when it comes to determining the “legal gender” of a person for the purposes of marriage and what steps must be taken to enter into a legally recognised marriage under the current matrimonial laws. This essay will compare and contrast the legal status of transgender marriage across Hong Kong and other common law jurisdictions, in particular the UK, the US and Australia.
Interpretation of Male and Female
The Corbett principle had been commonly adopted across the common law jurisdictions: in Hong Kong, the landmark case W v Registrar of Marriages concerning transgender marriage followed the Corbett decision, such that the meaning of marriage can only be interpreted as a voluntary union between a biological man and a biological woman to the exclusion of all others; in the UK, the principle has also been adopted consistently . Littleton v Prange had demonstrated that US courts are willing to rely purely on biological criteria when determining a person’s sex.
It is still the common approach for courts in these jurisdictions to ignore the ample evidence and advances in social, medical and psychological understandings of transsexuality since the Corbett decision.
Nevertheless, courts in some jurisdictions have been on the move in respect of the determining factors. In Australia, Re Kevin was acclaimed as the first case to accurately assimilate medical, psychological and social understandings of transsexuality in the recognition of transgender sex claims. The court had heavily criticised Corbett’s line of reasoning, forcefully rejecting the conclusion that congruent biological factors alone determine a person’s true sex. It had also arguably dispensed with the requirement of “full” sex reassignment surgery, heterosexual capacity and genital appearance , meaning that female-to-male post-operative transgender persons have a greater chance of achieving legal recognition.
The Hong Kong case W v Registrar of Marriages had held that post-operative transsexual individuals should be entitled to marry in their acquired gender. The existing construction of section 40 of the Marriage Ordinance (“MO”) and section 21 of the Matrimonial Clauses Ordinance (“MCO”) had, however, not taken into account the full meaning of sex and excluded transgender individuals, having infringed upon the very essence of a transgender woman’s constitutional right to marry under Article 37 of the Basic Law and/or Article 19(2) of the Hong Kong Bill of Rights and were rendered unconstitutional.
In Goodwin v United Kingdom , the European Court of Human Right (“ECHR”) held that
transsexuals’ right to marry is infringed if they are not allowed to marry the opposite sex, given that “the applicant lives as a woman, is in a relationship with a man and would only wish to marry a man, she has no alternatives.”
Australian courts also recognise that, on a similar analogy to the right to private life, the right to marriage shall not be infringed. In Re Kevin, it was held that a finding of the applicant was a man at the time of marriage for the purposes of the Marriage Act and confirmation of his capacity to marry, was clearly consistent with international law and humanity; any contrary findings would mean considerable injustice for no apparent purpose.
The common law jurisdictions have held common view that absence of majority consensus is not a reason for denying recognition of the right of minority, any infringement to transsexuals’ right to marriage would be unconstitutional and should be stringently prevented.
Just like Hong Kong, jurisdictions only have judicial but not statutory recognition over transgender marriages. Recognitions are founded in statutes concerning only post-operative transgender persons without specifically stipulating their relevance to transgender marriages. For instance, Legislation in Australia allows unmarried, post-operative transgender persons to apply to have their birth certificates changed to reflect their reassigned sex.
Upon the rulings in W, the Administration tried to implement the CFA’s order by introducing the Marriage (Amendment) Bill 2014 (“the Bill”), but this short-lived Bill was voted down by the Legislative Council (“LegCo”) in October 2014. The proposed section 40B providing the presumption that, in the absence of contrary evidence, a person’s sex as shown on his/her identity card or his/her valid travel document at the time of marriage shall be presumed to be his/her sex to a marriage, had been staunchly rejected.
In the US, there are also no legislative guidelines to decide on the legality of transgender marriages, and the case Littleton reiterated that had the legislature intended to allow transgender persons to marry as members of their reassigned sex, it would have specifically stated so.
Despite the widespread common practice adopted by the jurisdictions above, the UK had moved a pre-eminent step that it statutorily entitled transgender persons to marry under the Gender Recognition Act 2004, in which application may be made by a person to the Gender Recognition Panel for gender recognition certificate on the basis of living in the other gender. If the application is allowed, marriage is allowed as it is marriage just a typical one.
Transgender marriage has been unveiled undiscovered aspects of the legal and social understandings in relation to sex continually, and each new case paves the way for disruption and change of meaning. Nevertheless, the incremental changes expected in the legal system, coupled with the activists’ activities in other aspects of society, portend a more positive future for transgender people.