Beijing: A transgender woman in Hong Kong
has challenged a ban against marrying her male partner,
sparking off a heated debate over a law that permitted
transgenders to marry only from same sex.
A Hong Kong court today began reviewing a government
move to restrict a transgender woman from marrying her male
partner in the first such case in the city's legal system.
The transgender, a local resident in her 20s who,
under court order can be only identified as "W", was born male
and has undergone sex-change surgery.
She was denied from marrying her boyfriend by the
marriage registry of Hong Kong, a special administrative
regions of China, on the ground that it amounted to marrying
from the same sex according to her attorney, Michael Vidler.
Vidler said the application by W to marry her male
partner was rejected by the marriage registry on the ground
that her birth certificate listed her as male.
"She is a woman and she should be entitled to the same
rights as a woman," Vidler was quoted by China Daily today as
saying.
According to Vidler and others a post-operative female
transsexual living in Hong Kong is lawfully entitled to marry,
but only to a woman, even though the local law prohibits
same-sex marriage.
The origins of the impasse date five years back when W
first began to undergo sex change surgery and therapy, which
she recently, and successfully, completed.
In fact, the Hong Kong government officially
recognised the procedure, authorising the change in her
identity card and school certificates.
But problem arose when W and her boyfriend submitted a
marriage application that was rejected out of hand, Vidler
said.
"This case in a place that bans same-sex marriages,
offers no shortage of irony. We're not looking for her to
marry another woman. She wants to assert her right to marry a
male partner. We're not suggesting same sex marriage," he
said.
Senior counsel Philip Dykes, arguing in defence of W,
said the court should review the term "female" in the context
of the Marriage Ordinance, while including the term
"post-operative transsexual woman" - or, alternatively, to
find the Marriage Ordinance in breach of the right to marry as
enshrined in the Basic Law.
Dykes also pointed out that the relevant section under
the Basic Law was itself ambiguous.
"W feels, lives, believes, behaves and has her body
attuned as a woman - but most importantly, she is a woman
psychologically", he said, adding that W's transformation is
irreversible.
Dykes further cited a list of Common Law precedents
for such marital unions, including practices in Japan, South
Korea, Singapore and Indonesia - as well as on the Chinese
mainland.
In addition, most European countries and several US
states also permit such marriages.
Queen's Counsel Monica Carss-Frisk, speaking for the
government, said that "the court is being asked to legislate
rather than interpret," adding the original intentions behind
the marriage law drafts should be kept in mind when
reinterpreting terms for contemporary times.
There also exists difficulty in interpretation,
especially when deciding where to draw the line.
If the door was opened for post-operative transsexual
women, what about pre-operative transsexuals or others living
like women who were not born women, Carss-Frisk asked. Given
that there is a substantial link between marriage and
procreation, it was up to government to preserve that link,
she said.
"There are far-reaching implications to a raft of
issues such as inheritance and children. There is no evidence
that contemporary use of the words man and woman encompass the
transgendered," she said.
The court was expected to give a ruling after
conducting more hearings.
PTI
First Published: Tuesday, August 10, 2010, 16:43