X. Transsexual marriage
Transsexual persons are those who have changed from one sex to another. Normally transsexuals change their gender by undergoing a sex reassignment surgery. Following surgery, they will receive a new identity card with the new acquired gender.
Prior to the latest Court of Final Appeal (CFA) decision in W v Registrar of Marriages , the law did not recognize a transsexual’s right to marriage.
W v Registrar of Marriages case
In this case, a post-operation male-to-female transsexual known as “W” was refused marriage to a man by the Registrar of Marriage, for the reason that “W” was biologically a male and hence not fit for the purpose of marriage to a man. “W” challenged the decision through judicial review: (i) challenging the interpretation of “female” under sections 21 and 40 of the Marriage Ordinance , and (ii) challenging the constitutionality of the Marriage Ordinance —claiming an infringement of her right to marry guaranteed by Basic Law Article 37 and Hong Kong Bill of Rights Article 19(2) . Both the Court of First Instance and the Court of Appeal ruled against W – however, the Court of First Instance suggested the government to conduct a public consultation on gender identity, sexual orientation and the specific problems and difficulties faced by transsexual people, including their right to marry.
In the latest and final decision of the Court of Final Appeal in 2013, the CFA declared that the meaning of “woman” and “female” includes a post-operation male-to-female transsexual person whose gender has been certified by an appropriate medical authority as having changed after sex reassignment surgery. Accordingly, the Court held that under the law “W” is entitled to be included as “a woman” under the relevant provisions of the Marriage Ordinance, and therefore is eligible to marry a man.