在W 訴 婚姻登記官(高院憲法及行政訴訟2009年第120號)案中,一名 在手術後由男性變為女性的變性人反對婚姻登記官拒絕允許她與其男性伴侶註冊結婚的決定。對於不准她與男性結婚(而非不准與女性結婚)的決定,申請人辯稱婚 姻登記官錯誤詮釋《婚姻條例》(第181章)第21條和第40條中“男”和“女”與“男方”和“女方”這些字詞,或是這些條文不符合《基本法》第三十七條
及《香港人權法案》第十九條第二款所保證的婚姻權。原訟法庭在2010年10月5日的判決中裁定,按照相關條文的恰當解釋“男”和“女”與“男方”和“女
方”並不涵蓋在手術後由女性變為男性的男人和由男性變為女性的女人。就該等條文而言,這些人的性別應按其出生時的生理性別而決定。法庭又認為,相關條文並
無侵犯根據《基本法》及《香港人權法案》保證的婚姻權。2011年11月25日,上訴法庭裁定維持下級法院的裁決。申請人現正申請許可向終審法院提出上
訴。
[Chinese
Translation-中譯本]
香港終審法院
本摘要由終審法院司法助理擬備,
並非判案書的一部分。
判案書可於下述網址取閱:http://legalref.judiciary.gov.hk/Irs/common/ju/judgment.jsp
新聞摘要
W 對婚姻登記官
終院民事上訴2012年第4號
(原高等法院上訴法庭民事上訴2010年第266號)
上訴人:W
答辯人:婚姻登記官
介入人:國際法學家委員會
主審法官:終審法院首席法官馬道立、終審法院常任法官陳兆愷、終審法院常任法官李義、終審法院非常任法官包致金及終審法院非常任法官賀輔明勳爵
判決:本院以多數裁定上訴得直
判案書:由首席法官馬道立及常任法官李義頒發主要判詞、非常任法官包致金及非常任法官賀輔明勳爵表示贊同、常任法官陳兆愷持異議
聆訊日期:2013年4月15至16日
判案書日期:2013年5月13日
法律代表:
御用大律師Pannick勳爵、大律師潘熙先生及大律師鄧鈞堤先生(由韋智達律師行延聘)代表上訴人;
御用大律師Monica Carss-Frisk女士、資深大律師黃國瑛女士及資深大律師黃繼明先生(由律政司延聘)代表答辯人。
摘要:
上訴人在香港醫院管理局轄下醫院接受過「變性手術」後,現為從男身變成女身的變性人。上訴人向答辯人申請與她的男性伴侶舉行婚禮但遭到拒絕。答辯人作出該項決定的理由是上訴人並不是《婚姻條例》及《婚姻訴訟條例》中所指的「女」人。上訴人以司法覆核法律程序質疑該項決定,辯稱就婚姻而言,在法律上她應被視爲女人。上訴人提出的争辯理由為(i)根據對條文的真正和恰當解釋,《婚姻條例》第21及40條中的「女」及「女方」等詞應包括接受手術後從男身變成女身的變性人;及(ii)如不包括的話,則鑒於《基本法》第37條及/或《香港人權法案》第19(2)條所賦予的結婚權利,及/或《香港人權法案》第14條對私生活的保護,上述兩項條文均屬違憲。原訟法庭及上訴法庭均駁回上訴人的申請。終審法院以4對1的多數裁定上訴得直。
本院裁定立法機關在制定《婚姻訴訟條例》時,其立法意圖為採納英國一項法規, 該法規認可英國法院在Corbett
v Corbett案的判決。英國法院在該案裁定繁殖性交是普通法下的婚姻之基要成分,因此就婚姻而言,只有生理因素才是評定某人的性別的適當準則。《婚姻條例》涉及相同的理由而亦應給予相若的解釋。因此,就婚姻而言,答辯人將有關條文所用「女人」等字眼解釋為不包括上訴人,此擧乃屬正確。
《基本法》第37條及《香港人權法案》第19(2)條皆保護結婚的權利。儘管婚姻制度必須受法律規例所規限,該等法規不能違反或在施行上損害該項權利的特有本質。本院注意到,在今日融合多種文化的香港,婚姻作爲一種社會制度的性質已經歷意義深遠的變化,而繁殖作爲婚姻的基要成分的重要性亦大爲減低。在處理如上訴人般接受手術的變性人是否符合成為「女」人的資格而享有與男人結婚的權利的問題時,若把焦點集中於出生時已固定而無法改變的生理特徵上,便屬於違反原則的做法。某人如欲註册結婚時, 本院應考慮與評定有關其性別身份的所有情況,包括生理、心理及社會元素和有否進行「變性手術」。
本院裁定,由於《婚姻訴訟條例》及《婚姻條例》的有關條文將確定某人的性別的準則僅限於生理因素上,因此該等條文與該項受憲法保護的結婚權利相抵觸,並且未有使該項憲法權利得以恰當地施行。該等條文否定了像W般接受手術後變成女人的變性人與男人結婚的權利,實際上是完全禁止她結婚。因此,該等條文損害了W應享的結婚權利的本質。在此等情況下,本院裁定該等條文違憲。本院認爲無需考慮W根據《香港人權法案》第14條所享有的私生活權利,可否支持其受憲法保護的結婚權利的問題。
本院進一步裁定,香港社會是否對變性人結婚的權利存在共識非為相關的考慮因素,因爲以欠缺多數人的共識為由而拒絕少數人的申索,在原則上有損基本的權利。
本院以多數判決裁定本案上訴得直, 並擬就本案作出有關宣告。與訟雙方可提交書面陳詞建議修改。本院擬作出的宣告的性質如下:(i)《婚姻訴訟條例》第20(1)(d)條及《婚姻條例》第40條中的「女」及「女方」等字詞的涵義,必須解釋為包括接受手術後由男身變成女身的變性人,而該人的性別須由適當的醫療組織證明在接受「變性手術」後已經改變,這種涵義必須給予法律效力;及(ii)上訴人在法律上應被納入《婚姻條例》及《婚姻訴訟條例》的有關條文所指的「女」人的範圍内,並且有資格與男人結婚。至於接受程度較淺的治療的變性人是否亦能符合資格這問題,本院暫不作決定。本院認為這方面立法在不同層面上均極具益處,包括能確立用以決定就婚姻而言符合「女」或「男」的資格的方法。雖然法院可就確認各人所獲得的性別就婚姻而言的含義擬定驗證標準並裁決有關問題,但由立法機關制定與英國《2004年性別承認法令》相若的法例顯然可取。該項法令確立了機制,由專家小組按個別案件的情況審核性別承認的申請,並由小組批出性別承認證明書以確認成功申請人的新的性別。該項法令亦就承認新性別所衍生的其他法律後果的處理方法,提供一個實際及可取的模式。
本院確認應否制定新法例乃立法機關全權決定的事宜。除與訟雙方另作進一步陳詞外,本院建議將有關命令自判案書頒發日期起計暫緩執行12個月,以便有關當局就可能立法作出考慮。上述期間完結時,不論是否有新的法例,上訴人都有權獲得法院所宣告的濟助。
常任法官陳兆愷頒發異議判詞:
常任法官陳兆愷裁定,承認變性婚姻是根本地改變傳統的婚姻觀念,而婚姻是一種建基於社會大衆的看法的重要社會制度。海外司法管轄區的做法是透過社會諮詢從而瞭解社會對婚姻的看法有所改變後,才對有關法律作出改變,准許變性人以其手術後的性別結婚。陳法官認為,現時並無證據顯示,香港社會對婚姻的看法是否已改變至放棄或基本上改變傳統的婚姻觀念。在欠缺該種證據下,本院不應援引其詮釋憲法的權力來承認變性婚姻。若本院援引這項權力的話,便相當於就社會議題訂立新政策,這會帶來長遠後果,必需經過公眾諮詢才能作出。這並非本院的職責。
陳法官對變性人所面對的困難予以同情,並要求政府全面檢討有關法例以求在切實可行範圍内盡快就改變有關法律提出建議。
FACV No.
4 of 2012
IN THE
COURT OF FINAL APPEAL OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 4 OF 2012 (CIVIL)
(ON
APPEAL FROM CACV NO. 266 OF 2010)
_____________________
Between
:
W Appellant
-
and -
The
registrar of marriages Respondent
______________
Before :
Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Bokhary
NPJ and Lord Hoffmann NPJ
Dates of
Hearing: 15 to 16 April 2013
Date of
Judgment : 13 May 2013
_____________________
J U D G
M E N T
_____________________
Chief
Justice Ma and Mr Justice Ribeiro PJ:
1. The appellant, W, is a post-operative
male-to-female transsexual person. In
common parlance, she is a transsexual person who has undergone “sex change”
operations and now lives as and appears in all respects to be a woman. She and her male partner wish to get married.
However, the Registrar of Marriages has decided that she does not qualify as “a
woman” under the Marriage Ordinance and the Matrimonial Causes Ordinance, so
that there is no power to celebrate a marriage between her and her male partner.
2. The appellant brought judicial review
proceedings to challenge that decision, contending that she ought in law to
count as a woman for the purposes of marriage.
The challenge failed at first instance[1] and in the Court of
Appeal.[2] Lord Pannick QC, appearing
for the appellant,[3] makes it clear that it is no part of the appellant’s case
that same sex marriage should be permitted.
The contention advanced is that she is for legal purposes a woman and
entitled to marry a person of the opposite sex. We should make it clear that nothing in this
judgment is intended to address the question of same sex marriage.
3. Leave to appeal was granted by the Court of
Appeal on the basis that the following questions of great general or public
importance arise on the appeal:
Whether on a true and proper construction
of the Marriage Ordinance, Cap 181 (‘MO’), the words ‘woman’ and ‘female’ in
sections 21 and 40 of the MO include a post operative male to female
transsexual?
If the answer to Question 1 is ‘No’,
whether sections 21 and 40 of the MO are unconstitutional having regard to the
Appellant's right to marry under Article 37 of the Basic Law and/or Article
19(2) of the Hong Kong Bill of Rights ['HKBOR']) and/or her right to privacy
under Article 14 of the HKBOR?
4. The questions for the Court are therefore
whether the Registrar has misconstrued the Ordinance in coming to his
conclusion precluding the appellant from marrying her male partner. And if not, whether the Ordinance so
construed is compatible with the right to marry guaranteed by the Basic Law and
the Bill of Rights or with the right to privacy guaranteed by the Bill of
Rights. We will consider in turn the
question of statutory construction and the constitutional question. But first, we should examine the condition of
transsexualism and the appellant’s circumstances.
A. The condition of transsexualism
5. It is now well-established that
transsexualism is a condition requiring medical treatment. The World Health Organization classifies
transsexualism as a species of gender identity disorder involving:
“A desire to live and be accepted as a
member of the opposite sex, usually accompanied by a sense of discomfort with,
or inappropriateness of, one’s anatomical sex, and a wish to have surgery and
hormonal treatment to make one’s body as congruent as possible with one’s
preferred sex.”[4]
6. As Dr Ho Pui Tat[5] explained, it is possible
to regard the sexual identity of an adult individual as determinable by
reference to psychological and biological factors. The psychological aspects include gender
identity (self perception of being male or female); social sex role (living as
male or female); sex orientation (homosexual, heterosexual, asexual or
bisexual); and sex of rearing (whether brought up as male or female). The biological aspects include the genetic
(the presence or absence of the Y chromosome); the gonadal (the presence of
ovaries or testes); the hormonal (circulating hormones and end organ
sensitivity); internal genital morphology (the presence or absence of male or
female internal structures such as the prostate gland and the uterus); external
genital morphology (the structure of male or female external genitalia); and
secondary sexual characteristics (body hair, breasts and fat distribution).
7. In the vast majority of people, these indicia
are all congruent, that is, they all point in the same direction, identifying
the individual as either male or female.[6] However, people who have the
misfortune of suffering from the gender identity disorder or gender dysphoria
of transsexualism possess the chromosomal and other biological features of one
sex but profoundly and unshakeably perceive themselves to be members of the
opposite sex. They may persistently experience
acute emotional distress, feeling themselves trapped in a body which does not
correspond with what they firmly believe to be their “real” sex.
8. The aetiology of the condition is
uncertain. It has traditionally been
regarded as psychological in origin but there is a body of scientific and
medical opinion favouring the hypothesis that it may have a genetic or organic
explanation. But whatever the aetiology,
there is no doubt that in severe cases, it can give rise to much suffering and
possibly self-destructive behaviour. As
Professor Sam Winter[7] stated in his affidavit, transsexual persons:
“... consider themselves females imprisoned
in the male bodies, or vice versa, and intensely resent their own sexual organs
which constantly remind them of their biological sex. They go to great lengths
to relieve themselves of their psychological distress. For example, transsexual
men put on make-up, remove facial and pubic hair, and use oestrogen to promote
the development of female breasts. They implore doctors to perform operations to
remove their male genital organs and construct for them a vagina from their
penis. Some of them mutilate themselves in order to be rid of the gonads and
genitalia they detest. ... the inner turmoil transsexuals experience prompts
some of them to undergo prolonged and painful surgery or even take their own
lives.”
9. Professor Winter noted that their “mental and
emotional well-being is also affected by other’s perception of and judgment on
them.” The gender recognition which the
law accords to them is obviously relevant in this context.[8]
10. Professor Robyn Emerton[9] has pointed
out[10] that intrusive social pressures can cause great hardship and even lead
to tragic consequences:
“The plight of Hong Kong’s transgender
persons recently came to the fore after the suicide of Louise Chan, a young
transgender woman, on 21 September 2004. Louise first came to the public’s
attention when she was stalked and ‘outed’ by the local media in 2003
resulting, amongst other things, in the loss of her job. Two days after
Louise’s death, another transgender woman, Sasha Moon, also committed suicide.”
11. It is generally recognized that
transsexualism does not respond to psychological or psychiatric treatment. The only accepted therapy involves effecting
hormonal and surgical changes to make the patient’s body conform sexually as
closely as possible with his or her self-perception and thus to address his or
her psychological needs. As Dr Ho
Pui-tat explained, the management of persons with the relevant symptoms begins
with a full psychiatric assessment. If
the diagnosis of gender identity disorder is confirmed, the patient is usually
required to go through a “real life experience”, living in the preferred gender
for about two years while having hormones of the opposite sex administered to
produce reversible physical changes in the body and to ease the patient’s
psychological discomfort. If it appears
from this process that the patient can successfully live as a person of the
opposite sex, he or she is considered medically eligible for sex reassignment
surgery (“SRS”).
12. However, as Dr Ho noted, not all transsexual
patients choose to undertake SRS. The
level of psychological discomfort in people with gender identity disorder
differs, ranging from mild gender dysphoria to severe transsexualism. Those less severely afflicted may decline
surgery. There may also be social
constraints, for instance, a desire not to put good careers at risk by
undergoing a sex reassignment. Or the
patient may not be willing to face the painful process of surgery with what may
be an uncertain outcome, especially in the case of female to male transsexuals
where the surgery is more complex and difficult.
13. Dr Albert Yuen Wai Cheung[11] explained that
where the decision is made to proceed with SRS, the surgery comprises at least
two elements: breast and genital surgery,[12] the procedures differing for
male-to-female and female-to-male patients.
Dr Yuen described what can and cannot be achieved by surgical
intervention as follows:
“For male-to-female transsexual surgery,
breast augmentation is done for patients whom the breast enlargement after
hormone treatment is not sufficient for comfort in the social gender role.
Genital surgery includes at least orchidectomy (removal of both testes),
penectomy (removal of penis), creation of a new vagina. The new vagina enables
penetration of penis during sexual intercourse. There is preservation of erotic
sexual sensation. However, surgery cannot remove the prostate organ or provide
a functional uterus or ovaries, or otherwise establish fertility or child
bearing ability. Neither can it change the sex chromosomes of the person, which
remains that of a male (‘XY’).
For female-to-male transsexual surgery, the
female breasts would be removed. The
uterus, ovaries and vagina are removed.
Construction of some form of penis is performed. There are different ways of constructing the
penis, depending on the desire of person who would balance the risk of physical
injuries inflicted on one’s body due to the surgery with the benefits. The form of penis construction ranges from an
elongation of patient’s clitoris (metoidioplasty), raising an abdominal skin
tube flap to mimic a penis, to the micro-vascular transfer of tissue from other
parts of body to perineum to have a full construction of a penis inside which
there is a passage for urine. The best
outcome at present is that after surgery, the person can void urine while
standing and can have a rigid penis which means it is rigid all the time, as
opposed to an erected penis which is flaccid normally but becomes rigid when
sexually aroused. However, the new
penis, even fully constructed, cannot ejaculate or erect on stimulation,
although it will not affect the person’s ability to have sexual intercourse and
the person can still penetrate a vagina and have sensation in the penis and
achieve orgasm because the clitoris and its nerve endings are preserved. The person cannot be provided with prostate
(a male sex organ which secretes prostatic fluid which when combined with
sperms produced by the testes forms the semen; a female does not have such an
organ) or any functioning testes and will have no ability to produce semen, to
reproduce or otherwise to impregnate a female.
The sex chromosomes also remain those of a female (‘XX’).”
14. It can thus be seen that SRS involves very
extensive and irreversible changes to a person’s physical state.
B. The treatment of transsexuals in Hong Kong
generally
15. In Hong Kong, medical facilities for treating
transsexuals were first established in 1980.
The first documented instance of SRS performed locally occurred in
1981. From 1 October 2007 to 30
September 2009, there were 86 patients diagnosed with gender identity
disorder. From January 2006 to September
2009, 18 patients underwent SRS in hospitals managed by the Hospital
Authority. The practice is to confine
SRS to persons who are at least 21 years old.
The whole treatment, including SRS, is publicly funded. It has been suggested that “many more have
undergone surgery privately, both in Hong Kong and, more commonly,
overseas.”[13] In the present case, W
had the first of her operations (an orchidectomy) in Thailand.
16. After completion of the course of treatment,
a letter certifying that the patient’s gender has been changed is issued by the
Hospital Authority and signed by the consultant surgeon in charge. The practice, as Dr Albert Yuen Wai Cheung
explained, is for such a letter to be issued only where a person has had the
original genital organs removed and has had some form of the genital organs of
the opposite sex constructed.
17. It is the practice of the Director of
Immigration, who functions as the Commissioner of Registration under the
Registration of Persons Ordinance,[14] to accept such a letter as a basis for
issuing the patient with a replacement identity card[15] and passport[16]
reflecting his or her changed gender.
The Commissioner also accepts certificates where the SRS has been
conducted privately, whether locally or overseas.[17] However, the practice is to refuse to alter
the sex recorded in birth certificates on the basis that the document states
historical fact which cannot be altered on the basis of a surgical sex
reassignment. And, as occurred in the
present case, a post-operative transsexual person is regarded as ineligible to
marry someone of the gender opposite to his or her acquired gender.
18. Hong Kong’s position on marriage presently
differs from the position adopted in many other countries where, by law or as a
matter of administrative practice, post-operative transsexuals are able to
marry in their acquired gender. From the
evidence and submissions received, including from the International Commission
of Jurists,[18] it appears that in the Asia-Pacific region, such marriages are
permitted on the Mainland and in Canada, India, Singapore, Japan, South Korea,
Indonesia, Australia and New Zealand. In
Europe, most states have for some years recognized such a right to marry and,
after the decision of the European Court of Human Rights (“ECtHR”) in Goodwin v
United Kingdom,[19] discussed below, all 47 states which are members of the
Council of Europe are required to give such marriages full recognition. Ms Monica Carss-Frisk QC, appearing for the
Registrar,[20] has helpfully provided a list of 41 countries which are approved
for the purposes of the United Kingdom’s Gender Recognition Act 2004 (“GRA
2004”) and whose certification of a change of gender is therefore accepted in
the United Kingdom.[21] Those countries
include the United States, covering the District of Columbia and all of the
States except for Idaho, Ohio, Tennessee and Texas.
C. The case of the appellant
19. The appellant is a Hong Kong permanent
resident in her thirties. She was
registered as male at birth, a biologically correct classification. Until 2008, her identity card also stated that
she was male. However, from an early age, she perceived herself as female. She was diagnosed as suffering from gender
identity disorder and underwent a psychiatric assessment and hormonal treatment
between 2005 and 2008. In January 2007,
she had an orchidectomy performed in Thailand.
She changed her name to a more feminine one by deed poll in that
year. Her “real life experience” under
professional supervision was deemed successful and in 2008, she successfully
underwent SRS at hospitals managed by the Hospital Authority involving removal
of her penis and the construction of an artificial vagina enabling her to
engage in sexual intercourse with a man.
She was thereafter issued with a Hospital Authority letter certifying
that her “gender should now be changed to female”. She subsequently successfully applied for her
acquired gender to be shown in her educational records and, in August 2008, was
issued with a new identity card stating her new name and giving her sex as
female. She has also been issued with a
passport containing similar particulars.
20. On 17 November 2008, her solicitors wrote to
the Registrar seeking confirmation that she was able to marry her male partner.
The Registrar’s negative response, containing the decision under challenge, was
in the following terms:
“Marriages in Hong Kong are governed by the
Marriage Ordinance, Cap. 181, Laws of Hong Kong. Section 40 of the said
Ordinance provides that every marriage under the Ordinance is a formal ceremony
recognized by law as involving the voluntary union for life of one man and one
woman to the exclusion of all others. According to our legal advice, the
biological sexual constitution of an individual is fixed at birth and cannot be
changed, either by the natural development of organs of the opposite sex, or by
medical or surgical means. The Registrar of Marriages is not empowered to
celebrate the marriage between persons of the same biological sex. For the
purpose of marriage, only an individual's sex at birth counts and any operative
intervention is ignored.”
D. The relevant statutory provisions
21. Section 40 of the Marriage Ordinance
(“MO”),[22] referred to by the Registrar provides as follows:
(1)
Every marriage under this Ordinance shall be a Christian marriage or the
civil equivalent of a Christian marriage.
(2)
The expression ‘Christian marriage or the civil equivalent of a
Christian marriage’ implies a formal ceremony recognized by the law as
involving the voluntary union for life of one man and one woman to the
exclusion of all others.
22. Also important is section 20(1)(d) of the
Matrimonial Causes Ordinance (“MCO”)[23] which states:
A marriage which takes place after 30 June
1972 shall be void on any of the following grounds only ... (d) that the
parties are not respectively male and female.
23. It is also relevant to note that in Hong
Kong, a marriage which has not been consummated owing to the incapacity of
either party to consummate it is voidable.[24]
24. It will be necessary later to examine the
abovementioned provisions in the light of the constitutional right to marry
conferred by Article 37 of the Basic Law (“Article 37”) and Article 19(2) of
the Bill of Rights (“Article 19(2)”), set out in Section F.1 of this judgment.
E. The question of statutory construction
25. It is common ground that under the law of
Hong Kong, a marriage is the voluntary union for life of one man and one woman
to the exclusion of all others, as MO section 40 provides. Everyone also agrees that “marriage” in
Article 37 and “marry” in Article 19(2) bear the same meaning. The question is: Who qualifies as a “woman”
for the purposes of marriage? In
particular, does a post-operative male-to-female transsexual person such as W
count as a “woman” for those purposes?
26. That question has only arisen as a legal
issue in relation to transsexuals after gender reassignment treatment became
possible.[25] In the United Kingdom, it
first received a judicial answer in 1970 in the important case of Corbett v Corbett
(otherwise Ashley)[26] which involved a post-operative male-to-female
transsexual known as April Ashley. Ormrod J held, for reasons considered below,
that the answer was “No”. He therefore
granted a decree of nullity declaring that the marriage which the parties had
celebrated was void ab initio.
27. When Ormrod J issued his judgment, there was
no explicit statutory provision in England and Wales making it a requirement
that a marriage be between a man and a woman.
But in the following year, the United Kingdom Parliament enacted section
1(c) of the Nullity of Marriage Act 1971 which provided that a marriage taking
place after the Act’s commencement is void if “the parties are not respectively
male and female”. The Hong Kong
legislature followed suit and enacted section 20(1)(d) of the MCO set out
above, coming into effect on 1 July 1972.
Our section is in terms materially identical to the English provision
and it was obviously intended to adopt the measure locally, making it relevant
to examine the origins of the 1971 provision and in particular, its
relationship with Ormrod J’s decision in the Corbett case. Section 1(c) of the 1971 Act was subsequently
re‑enacted in the United Kingdom as section
11(c) of the Matrimonial Causes Act 1973 in materially identical terms.
E.1 What Corbett decided
28. Ormrod J had to decide whether the
transsexual woman in question was in law a woman for the purposes of
marriage. To do this, his Lordship had
to ascertain the legal criteria for providing an answer. To identify those criteria, his approach was
first to decide what, in his view, were the essential features of the
institution of marriage. He then deduced
from such essentials, what he considered to be the appropriate criteria and
applied them to arrive at his conclusion, after an extensive examination of the
evidence.
29. The starting-point as to the essential nature
of marriage at common law is the judgment of Lord Penzance in Hyde v Hyde,[27]
where his Lordship stated as follows:
“Marriage has been well said to be
something more than a contract, either religious or civil - to be an
institution. It creates mutual rights and obligations, as all contracts do;
but, beyond that, it confers a status. The position or status of “husband” and
“wife” is a recognised one throughout Christendom: the laws of all Christian
nations throw about that status a variety of legal incidents during the lives
of the parties, and induce definite rights upon their offspring.
What, then, is the nature of this
institution as understood in Christendom? Its incidents vary in different
countries; but what are its essential elements and invariable features? If it be of common acceptance and existence,
it must needs (however varied in different countries in its minor incidents)
have some prevailing identity and universal basis. I conceive that marriage, as understood in
Christendom, may for this purpose be defined as the voluntary union for life of
one man and one woman, to the exclusion of all others.”
30. Building on this, Ormrod J focussed on the
fact that “marriage is essentially a relationship between man and woman”,[28]
deducing from this basic characteristic the proposition that the ability to
engage in heterosexual intercourse is a determining constituent of that
relationship:
“...sex is clearly an essential determinant
of the relationship called marriage because it is and always has been
recognised as the union of man and woman. It is the institution on which the
family is built, and in which the capacity for natural hetero-sexual
intercourse is an essential element. It has, of course, many other
characteristics, of which companionship and mutual support is an important one,
but the characteristics which distinguish it from all other relationships can
only be met by two persons of opposite sex.”[29]
31. In emphasising that marriage so viewed is
“the institution on which the family is built”, Ormrod J plainly regarded such
sexual intercourse as essential because it was the basis for the procreation of
children. As Lord Nicholls of Birkenhead
was later to point out, this was very much in line with the notion of a
Christian marriage. As Lord Nicholls
explained:
“There was a time when the reproductive
functions of male and female were regarded as the primary raison d’être of
marriage. The Church of England Book of Common Prayer of 1662 declared that the
first cause for which matrimony was ordained was the ‘procreation of children’.
For centuries this was proclaimed at innumerable marriage services.”[30]
32. Reviewing the medical evidence on how “the
sexual condition of an individual” was assessed, Ormrod J recognised four
possible criteria, namely:
“(i) Chromosomal factors; (ii) Gonadal
factors (ie, the presence or absence of testes or ovaries); (iii) Genital
factors (including internal sex organs); (iv) Psychological factors; ...” [31]
33. His Lordship added that there was some
support for a fifth possible criterion, namely:
“(v) Hormonal factors or secondary sexual
characteristics (such as distribution of hair, breast development, physique
etc, which are thought to reflect the balance between the male and female sex
hormones in the body).”[32]
34. However, since he regarded procreative
intercourse as the essential constituent of a marriage at common law, his
Lordship considered it appropriate to adopt only the first three of those five
possible factors as the relevant criteria. Ormrod J put this as follows:
“Having regard to the essentially
hetero-sexual character of the relationship which is called marriage, the
criteria must, in my judgment, be biological, for even the most extreme degree
of transsexualism in a male or the most severe hormonal imbalance which can
exist in a person with male chromosomes, male gonads and male genitalia cannot
reproduce a person who is naturally capable of performing the essential role of
a woman in marriage. In other words, the law should adopt in the first place,
the first three of the doctors' criteria, i.e., the chromosomal, gonadal and
genital tests, and if all three are congruent, determine the sex for the
purpose of marriage accordingly, and ignore any operative intervention.”[33]
35. His Lordship therefore identified the
biological factors as the only appropriate criteria for assessing the sex of an
individual for the purposes of marriage.
Moreover, he made it clear that he regarded such biological criteria as
fixed at the time of birth. Psychological
criteria would be disregarded since none would be manifest in a newborn
baby. So would the fact of the
individual’s subsequent psychological development, treatment and surgery:
“It is common ground between all the
medical witnesses that the biological sexual constitution of an individual is
fixed at birth (at the latest), and cannot be changed, either by the natural
development of organs of the opposite sex, or by medical or surgical means. The
respondent’s operation, therefore, cannot affect her true sex. The only cases
where the term ‘change of sex’ is appropriate are those in which a mistake as
to sex is made at birth and subsequently revealed by further medical
investigation.”
36. He concluded on this basis that the
transsexual person in question:
“... is not a woman for the purposes of
marriage but is a biological male and has been so since birth. It follows that
the so-called marriage of September 10, 1963, is void.”[34]
37. Corbett received the approval of the House of
Lords in Bellinger v Bellinger,[35] where Lord Nicholls stated that Ormrod J’s
decision represented the “present state of English law regarding the sex of
transsexual people”, noting that:
“... in this context, the law should adopt
the chromosomal, gonadal and genital tests. If all three are congruent, that
should determine a person's sex for the purpose of marriage. Any operative
intervention should be ignored. The biological sexual constitution of an
individual is fixed at birth, at the latest, and cannot be changed either by
the natural development of organs of the opposite sex or by medical or surgical
means.”
38. Given the importance that the Corbett line of
cases attaches to procreation as an essential of marriage it is perhaps of some
interest to note that a contrary view had been taken by Viscount Jowitt LC in
Baxter v Baxter,[36] a case on non-consummation, which was not referred to in
either Corbett or Bellinger. His
Lordship stated:
“... the insistence of procreation of
children as one of the principal ends, if not the principal end, of marriage
requires examination. It is indisputable that the institution of marriage
generally is not necessary for the procreation of children; nor does it appear
to be a principal end of marriage as understood in Christendom, which, as Lord
Penzance said in Hyde v Hyde, ‘may for this purpose be defined as “the
voluntary union for life of one man and one woman, to the exclusion of all
others.” As regards the phraseology of the marriage service in the Prayer Book,
this House in the recent case of Weatherley v Weatherley,[37] pointed out the
dangers of too strict a reliance upon these words. In any view of Christian
marriage the essence of the matter, as it seems to me, is that the children, if
there be any, should be born into a family, as that word is understood in
Christendom generally, and in the case of a marriage between spouses of a
particular faith that they should be brought up and nurtured in that faith. But
this is not the same thing as saying that a marriage is not consummated unless
children are procreated or that procreation of children is the principal end of
marriage. Counsel were unable to cite any authority where the procreation of
children was held to be the test in a nullity suit. On the contrary, it was
admitted that the sterility of the husband or the barrenness of the wife was
irrelevant.”
39. However, especially in the light of the House
of Lords decision in Bellinger and of the legislative history considered in the
following section of this judgment, the Corbett decision must be acknowledged
to be authoritative in English law regarding the common law incapacity of a
post-operative male-to-female transsexual to marry in her acquired gender.
E.2 The Corbett decision and the Nullity of
Marriage Act 1971
40. In our view, the 1971 Act was needed because,
as we have pointed out, Ormrod J had had to proceed without any explicit
statutory basis. After his Lordship
concluded that the marriage was invalid, he dealt with the parties’ contentions
regarding relief. The petitioner invited
him to make a bare declaration that there had not been a marriage at all to
show disapproval at what was submitted to be a “meretricious” marriage. If that course had been taken, there would
have been no power to grant ancillary relief.
The respondent, on the other hand, submitted that the Court should grant
a decree of nullity which would permit ancillary relief orders to be made.[38]
41. In order to rule on that issue Ormrod J
decided that it was necessary to ask “whether or not the ecclesiastical courts
would have entertained such a case as the present and granted a ‘declaratory
sentence’ on proof that the ‘wife’ was a man”.[39] He decided that in the
absence of contrary authority, those courts would have entertained such a case,
noting that even if the marriage was considered “meretricious”, they would have
granted declaratory sentences. His
Lordship held that he had no discretion other than to grant a nullity
decree.[40]
42. It would obviously be quite unsatisfactory to
require courts faced with like questions to undertake such an exercise. Ascertaining what the ecclesiastical courts
would have done requires considerable legal archaeology (jurisdiction having
been transferred from the ecclesiastical courts to the High Court by section 2
of the Matrimonial Causes Act 1857) and the degree of guidance which the
case-law of the ecclesiastical courts could give is doubtful since those courts
would never have had to consider matters such as the implications of sex
reassignment surgery.
43. What the Nullity of Marriage Act 1971 did was
to put cases like Corbett on a statutory footing by providing in its section
1(c), that a marriage was void on the ground that “the parties are not
respectively male and female”. This gave
the Court statutory powers to make ancillary relief orders under sections 15
and 19 of the Matrimonial Causes Act 1965.
The 1971 Act also gave the Court jurisdiction to act where the husband
was not domiciled in England.[41] It was therefore no longer necessary to
investigate what the position would have been in the ecclesiastical courts.
44. Examination of the origin and purpose of the
1971 Act, passed some 16 months after the Corbett decision, gives substance to
the suggestion that the United Kingdom Parliament thereby intended to confer
legislative recognition on that decision.
It must have been aware of the issues and the lack of a statutory
framework for dealing with them. In providing
such a framework, and by specifically legislating that a marriage is void if
the parties are not respectively male and female, reflecting Ormrod J’s holding
that the marriage was void ab initio, the legislative intent must have been to
endorse that decision. That such was the
intent was the view expressed by the English Court of Appeal in Bellinger v
Bellinger[42] and J v C;[43] and by the Full Court of the Australian Family
Court in AG (CTH) v “Kevin and Jennifer”.[44]
E.3 The adoption of Corbett’s rationale by the
Hong Kong legislature
45. Ms Carss-Frisk QC submits that the Judge[45]
and the Court of Appeal were right to hold that in enacting MCO section
20(1)(d) which reproduces in materially identical terms section 1(c) of the
1971 Act, the legislative intent in Hong Kong was likewise to endorse Ormrod
J’s decision in Corbett.
46. Fok JA points[46] out that the Explanatory
Memorandum to the Matrimonial Causes (Amendment) (No 2) Bill states:
“Clause 12 replaces section 20 of the
principal Ordinance with a new section 20 which sets out the grounds on which a
marriage may be declared null and void. These correspond to those set out under
the Nullity of Marriage Act 1971.”
47. His Lordship concluded that the Hong Kong
legislature :
“... consciously and expressly adopted the
relevant provision of the Nullity of Marriage Act 1971 and thereby must have
intended the law in Hong Kong to be the same as that in England, where Corbett
was expressly adopted legislatively, and must have intended the same
legislative intention behind the Nullity of Marriage Act 1971 when enacting
section 20(1)(d) of the MCO.”[47]
48. Save that we consider Corbett to have been
implicitly rather than expressly adopted by the English legislature, we
respectfully agree. In our view, as a
matter purely of statutory construction (constitutional considerations being
considered later), the legislative intent underlying MCO section 20(1)(d) –
and, because of its similar content, MO section 40 – is plainly that the
Corbett approach as described above applies.
Marriage is the voluntary union for life of one man and one woman to the
exclusion of all others and where the court has to decide whether a particular
individual counts as a “woman” for those purposes, in Hong Kong no less than in
England and Wales, the statutory intent is that Ormrod J’s criteria and
approach should be adopted.
49. It follows that if this Court was concerned
solely with the question of statutory construction, it would have no
alternative but to hold that W cannot be treated as a “woman” for the purposes
of marriage. The question then is
whether a different result is reached under the Basic Law and the Bill of
Rights. However, before leaving the
statutory construction issue, we wish to deal briefly with certain other
arguments which were raised in the present context.
E.4 Ordinary meaning
50. It has been stated in a number of cases that
whether someone is a “woman” in the context under discussion depends on the
“ordinary meaning” of the word.[48] What is generally meant by that is that
there is no technical or special meaning to be adopted, a proposition with
which we readily agree. However, the
reference to “ordinary meaning” must not obscure the crucial importance of
context and purpose when construing the relevant provisions. One is not concerned with asking whether a
post-operative transsexual woman is “a woman” in some abstract or general
sense, but whether she is “a woman” for the purposes of the law of marriage and
so has capacity to marry a man. This was
recognized by Ormrod J who stressed that he was “not concerned to determine the
‘legal sex’ of the respondent at large” but only in the context of a
marriage.[49]
51. It is perfectly possible that as a matter of
law, someone in W’s position may qualify as a woman for some, but not all
purposes. Thus, in Hong Kong, W is
recognized as a woman for the purpose of being issued with a new identity card
and a new passport. W is required to use
the women’s facilities in public toilets and swimming pool changing rooms. If she had the misfortune of being sent to
prison, she would be sent to a women’s prison.
Lord Pannick QC may well have been correct is submitting that a host of
other gender-specific statutory provisions could be applied without difficulty
to W on the basis that she is presently a woman, whereas before sex
reassignment, they would have applied to W as a man. That is not to suggest that possibly
difficult legal issues do not arise in consequence of an individual’s sex
reassignment. Some of those issues are
touched on later. The point is that
context and purpose are crucial when one comes to construe the legislation
because the right to marry may give rise to special impeding considerations
which do not exist in other contexts.
52. It is for these reasons that we do not
propose to address in any detail a second strand of the statutory construction
argument which was advanced on behalf of the Registrar. That involved the textual argument that a
post-operative male-to-female transsexual person cannot marry a man because she
is not a “woman” within the ordinary meaning of that term. The argument relied on the absence of
evidence that the current ordinary usage of “man”, “woman”, “male” and “female”
encompasses transsexuals; on the dictionary meanings of such words; and on the
existence of negative attitudes towards transsexuals in Hong Kong. While Ms Carss-Frisk accepted that the Hong
Kong statutory provisions were “always speaking”, meaning that they ought to be
continuously updated to allow for changes since enactment, she submitted that
there was no evidence to support any need for such updating.
53. Our approach to construction has not
proceeded on the basis of some textual “ordinary meaning” but on the
legislative intent made evident by their enactment history in the light of the
Corbett decision. That approach, in our view, leaves no room for a debate on
“ordinary meaning” nor on whether the “always speaking” provisions deserve an
updated meaning.
E.5 Non-consummation
54. It is sometimes suggested that the Corbett
approach of regarding procreation as the essential ingredient of marriage finds
support in provisions which render a marriage voidable for
non-consummation. The absence of such a
ground is also sometimes relied on as a basis for distinguishing Corbett.[50] Non-consummation is such a ground in Hong Kong,
and this argument was relied on by the Registrar. As Miss Carss-Frisk puts it, the argument is
that there is an inextricable relationship between consummation and a valid
marriage which shows that procreation “remains an important feature and purpose
of a marriage”.[51] This was the view taken, for instance, in B v B, a New York
decision.[52]
55. Since we have accepted, without reference to
non-consummation, that it was central to Ormrod J’s decision that he saw
procreative sexual intercourse as essential to marriage, it would be
superfluous to devote much time to this argument. We will content ourselves with saying that we
are not convinced that the existence of non-consummation as a ground for
voidability has any necessary connection with procreation as an essential
purpose of marriage. The test for
consummation has traditionally been regarded as full coital penetration but
without any requirement of emission,[53] far less of conception.[54] Moreover, there is in any event authority to
support the view that consummation can be achieved where the woman has had a
surgically constructed vagina, suggesting that there is no legal impediment to
consummating a marriage with a post-operative transsexual woman who is able to
engage in sexual intercourse.[55] We are
therefore not persuaded that the existence or otherwise of non-consummation as
a ground for avoiding a marriage is of any present relevance.
E.6 Leaving it to the legislature
56. An important submission made by the
Registrar, and one that was regarded as decisive for the refusal by their
Lordships in Bellinger to adopt a construction differing from that of Ormrod J,
is the submission that departing from the law as established by Corbett would
involve such a major change with such far-reaching ramifications that it is a
matter which should be left to the legislature.
It was however the case that Bellinger was decided in the knowledge that
comprehensive legislation was about to be introduced by the government. Lord Nicholls put this as follows:
“This would represent a major change in the
law, having far reaching ramifications. It raises issues whose solution calls
for extensive enquiry and the widest public consultation and discussion.
Questions of social policy and administrative feasibility arise at several
points, and their interaction has to be evaluated and balanced. The issues are
altogether ill-suited for determination by courts and court procedures. They
are pre-eminently a matter for Parliament, the more especially when the government,
in unequivocal terms, has already announced its intention to introduce
comprehensive primary legislation on this difficult and sensitive subject.”[56]
57. In view of the decision we have reached on
the construction question, it is unnecessary presently to deal with this
argument. However, it features prominently in the constitutional debate, and
will be addressed in that context.
F. The constitutional question
F.1 The provisions relied on
58. The constitutional provisions relied on by
the appellant are primarily Article 37 of the Basic Law and Article 19(2) of
the Hong Kong Bill of Rights:
Article 37
The
freedom of marriage of Hong Kong residents and their right to raise a family
freely shall be protected by law.
Article 19(2)
The right of men and women of marriageable
age to marry and to found a family shall be recognized.
59. Since the case-law of the European Court of
Human Rights (“ECtHR”) has been much referred to, the Hong Kong provisions may
be compared with Article 12 of the European Convention on Human Rights (“ECHR”)
which is in much the same terms:
Men and women of marriageable age have the
right to marry and to found a family, according to the national laws governing
the exercise of this right.
60. Lord Pannick QC also prays in aid the right
to privacy guaranteed by Article 14(1) of the Bill of Rights as a provision in
support of his main argument based on the right to marry:
Bill of Rights Article 14(1)
No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation.
F.2 The Court’s approach to the constitutional
question
61. The right to marry is accordingly addressed
both in our statute-law and in our constitutional instruments. While we accept that the definition of
marriage is the same under both regimes, the question for the Court is whether
the scope of the constitutionally recognized right to marry differs from the
scope of such right under statute, construed in the manner discussed
above. If the statutory right excludes
from the institution of marriage persons whose right to marry would be
recognized under the Basic Law or Bill of Rights, it would fall to the Court to
declare the statutory provision to such extent unconstitutional and to decide
upon the appropriate constitutional remedy.
It would in particular have to decide whether the validity of the
infringing provisions can be preserved by giving them a remedial
interpretation.
62. The power to provide a remedial
interpretation or to grant other forms of constitutional remedy was explained
in the judgment of Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai,[57] and
summarised in HKSAR v Ng Po On,[58] in the following terms:
“Lam Kwong Wai reiterates that the Basic
Law impliedly confers upon the courts of the Region power to apply a remedial
interpretation to provisions which may otherwise be struck down as
constitutionally invalid with a view, if possible, to preserving their
validity. A remedial interpretation is capable of going beyond ordinary common
law interpretation and may involve the use of judicial techniques such as
reading down and reading in. The remedial techniques open to the Court also
include the severance or striking out of parts or the whole of the offending
provision (as held in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at 265).
The Court recognizes that such remedial
techniques necessarily have their limits.
The Court cannot take up a curative measure which is so fundamentally at
odds with the intent of the legislation in question that adoption of such a
measure properly calls for legislative deliberation.”
F.3 The nature of the constitutional right to
marry
63. Article 37 speaks of the “freedom of marriage
of Hong Kong residents” and Article 19(2) lays down “the right of men and women
of marriageable age to marry”. We do not
consider that there is any difference of substance between the two
formulations. It makes no difference
that the terms “freedom” and “right” are used respectively. They both enjoin rejection of any unduly
restrictive or exclusionary approach to the right to marry. Nor does it make any difference that Article
19(2) refers to the right as one enjoyed by “men and women” whereas Article 37
speaks of its enjoyment by “Hong Kong residents”. It is common ground that a marriage for
constitutional as for common law purposes is the voluntary union for life of
one man and one woman to the exclusion of all others.
64. Both Article 37 and Article 19(2) also
guarantee the right to raise or found a family.
The ECtHR has held in relation to ECHR Article 12, that:
“...Article 12 secures the fundamental
right of a man and woman to marry and to found a family. The second aspect is
not however a condition of the first and the inability of any couple to
conceive or parent a child cannot be regarded as per se removing their right to
enjoy the first limb of this provision.”[59]
In our
view, the same plainly applies in Hong Kong.
65. It is in the nature of the institution of
marriage that it must be subject to legal regulation, for instance, as to
marriage having to be monogamous and between a man and a woman; as to what the
marriageable age is and what are the permitted degrees of consanguinity. However, such legal rules must be consistent
with the constitutional right to marry and must not operate so as to impair the
very essence of that right. The
Strasbourg Court has consistently so held.
Thus, in Goodwin, it stated:
“The exercise of the right to marry gives
rise to social, personal and legal consequences. It is subject to the national
laws of the Contracting States but the limitations thereby introduced must not
restrict or reduce the right in such a way or to such an extent that the very
essence of the right is impaired.”[60]
66. This has also been recognized by the House of
Lords. In R (Baiai) v Secretary of State
for Home Department,[61] Lord Bingham of Cornhill stated:
“The Strasbourg jurisprudence requires the
right to marry to be treated as a strong right which may be regulated by
national law both as to procedure and substance but may not be subjected to
conditions which impair the essence of the right.”
67. His Lordship explained what he meant when he
called the right to marry “a strong right” as follows:
“If by ‘absolute’ is meant that anyone
within the jurisdiction is free to marry any other person irrespective of age,
gender, consanguinity, affinity or any existing marriage, then plainly the
right protected by article 12 is not absolute. But equally plainly, in my
opinion, it is a strong right. It follows and gives teeth to article 16 of the
Universal Declaration of Human Rights 1948 and anticipates article 23(2) of the
International Covenant on Civil and Political Rights 1966. In contrast with
articles 8, 9, 10 and 11 of the Convention, it contains no second paragraph
permitting interferences with or limitations of the right in question which are
prescribed by law and necessary in a democratic society for one or other of a
number of specified purposes. The right is subject only to national laws
governing its exercise.”[62]
68. This is equally applicable in Hong Kong in
respect of the right to marry protected by Article 37 and Article 19(2). The legal rules governing the exercise of
that right must be compatible with those Articles and must not impair the
essence of the right.
F.4 Goodwin and Bellinger
69. It is instructive to consider the evolution
of the United Kingdom’s position under the ECHR in the case-law of the ECtHR as
recognized by the House of Lords. In
Rees v United Kingdom,[63] a 1986 decision involving a post-operative
transsexual man who had been refused alteration of his birth certificate to
show that he was male, the ECtHR approach to the right to marry under ECHR
Article 12 was not far-removed from that of Ormrod J in Corbett. While it emphasised that restrictions on the
right could not be such as to impair its very essence, the ECtHR stated:
“In
the court's opinion, the right to marry guaranteed by Article 12 refers to the
traditional marriage between persons of opposite biological sex. This appears
also from the wording of the Article which makes it clear that Article 12 is
mainly concerned to protect marriage as the basis of the family.”[64]
70. It refused relief[65] holding that:
“... there is at present little common
ground between the Contracting States in this area and ..., generally speaking,
the law appears to be in a transitional stage. Accordingly, this is an area in
which the Contracting Parties enjoy a wide margin of appreciation.”[66]
71. Four years later, in its decision in Cossey v
United Kingdom,[67] the Strasbourg Court had to deal with the complaint of a
post-operative male-to-female transsexual regarding her inability under English
law to enter into a valid marriage with a man.
Miss Cossey:
“...challenged ... the adoption in English
law of exclusively biological criteria for determining a person’s sex for the
purposes of marriage ... and the Court’s endorsement of that situation in the
Rees judgment, despite the absence from Article 12 of any indication of the
criteria to be applied for this purpose.”[68]
72. The ECtHR did not accept that complaint.
Continuing to treat her as biologically male, the Court stated:
“As to the applicant’s inability to marry a
woman, this does not stem from any legal impediment and in this respect it
cannot be said that the right to marry has been impaired as a consequence of
the provisions of domestic law.”[69]
73. Like the Court in Rees, the ECtHR held that
her inability to marry a man under English law was “in conformity with the
concept of marriage to which the right guaranteed by Article 12
refers”.[70] It resisted the argument
that it should change its approach stating:
“Although some Contracting States would now
regard as valid a marriage between a person in Miss Cossey’s situation and a
man, the developments which have occurred to date ... cannot be said to
evidence any general abandonment of the traditional concept of marriage. In
these circumstances, the Court does not consider that it is open to it to take
a new approach to the interpretation of Article 12 ... on the point at issue.
It finds, furthermore, that attachment to the traditional concept of marriage
provides sufficient reason for the continued adoption of biological criteria
for determining a person’s sex for the purposes of marriage, this being a
matter encompassed within the power of the Contracting States to regulate by
national law the exercise of the right to marry.” §46
74. Eight years later, in Sheffield and Horsham v
UK,[71] the Strasbourg Court had to deal with a challenge by a male-to-female
transsexual person (who had previously been married as a male and who had a
child by that marriage) against her post-operative inability to marry a man
under English law. The Court re-iterated
the approach to Article 12 adopted in Rees and Cossey and held that it was
still not satisfied that there was a common European approach, especially with
regard to:
“… the problems created by the recognition
in law of post-operative gender status. In particular, the survey does not
indicate that there is as yet any common approach as to how to address the
repercussions which the legal recognition of a change of sex may entail for
other areas of law such as marriage, filiation, privacy or data protection, or
the circumstances in which a transsexual may be compelled by law to reveal his
or her pre-operative gender.”[72]
75. It was therefore the case that over a period
spanning some twelve years, three challenges to the United Kingdom’s adherence
to the Corbett approach failed. The
ECtHR held that confining the sexual criteria for the right to marry to the
individual’s biological characteristics fixed at the time of birth involved no
violation of Article 12. It was a matter
which fell within the United Kingdom’s margin of appreciation since there was
no common European approach as to what such criteria should be and also no
common approach as to how the repercussions of recognizing a post-operative
change of gender should be handled.
However, in each of those cases, the Court noted that questions
regarding the rights of transsexual persons arose in an area of legal, social
and scientific change, acknowledging the need to keep the position under
review. Thus, in Sheffield and Horsham v
UK,[73] referring to its decision in Rees,it stated:
“The Court however expressed itself
conscious of the problems faced by transsexuals, recalled the principle that
the Convention had to be interpreted and applied in light of current
circumstances and stated that the need for appropriate legal measures should be
kept under review having regard particularly to scientific and societal
developments.”
76. That the time for change had finally arrived
was eventually acknowledged four years later by the ECtHR sitting as a Grand
Chamber in Goodwin v UK.[74] The
applicant was a post-operative male-to-female transsexual who complained that
although she currently enjoyed a full physical relationship with a man, she and
her partner could not marry because the law treated her as a man. The United Kingdom Government argued that:
“... if any change in this important or
sensitive area were to be made, it should come from the United Kingdom’s own
courts acting within the margin of appreciation which this Court has always
afforded. It also referred to the fact that any change brought the possibility
of unwanted consequences, submitting that legal recognition would potentially
invalidate existing marriages and leave transsexuals and their partners in
same-sex marriages. Itemphasised the importance of proper and careful review of
any changes in this area and the need for transitional provisions.”[75]
77. The Court dealt in turn with each of the main
points upon which its previous decisions against permitting transsexuals to
marry in their acquired gender rested.
(a)
Regarding its earlier view that excluding transsexuals was consonant
with the wording of Article 12 as protecting marriage as the basis of the
family, it now held (as noted in Section F.3 above) that the right to found a
family was not a condition of the right to marry and therefore not an
impediment.[76]
(b)
In the light of medical advances and social developments, it revised its
view as to the adequacy of purely biological criteria for determining sexual
identity. In discussing the applicant’s
Article 8 complaint, it said:
“While it also remains the case that a
transsexual cannot acquire all the biological characteristics of the assigned
sex, the Court notes that with increasingly sophisticated surgery and types of
hormonal treatments, the principal unchanging biological aspect of gender
identity is the chromosomal element. ... It is not apparent to the Court that
the chromosomal element, amongst all the others, must inevitably take on
decisive significance for the purposes of legal attribution of gender identity
for transsexuals.”[77]
(c)
And in the context of the right to marry under Article 12, the Court
stated:
“The Court is not persuaded that at the
date of this case it can still be assumed that these terms must refer to a
determination of gender by purely biological criteria. There have been major
social changes in the institution of marriage since the adoption of the
Convention as well as dramatic changes brought about by developments in
medicine and science in the field of transsexuality. The Court has found above,
under Article 8 of the Convention, that a test of congruent biological factors
can no longer be decisive in denying legal recognition to the change of gender
of a post-operative transsexual. There are other important factors—the
acceptance of the condition of gender identity disorder by the medical
professions and health authorities within Contracting States, the provision of
treatment including surgery to assimilate the individual as closely as possible
to the gender in which they perceive that they properly belong and the
assumption by the transsexual of the social role of the assigned gender.”[78]
(d)
The Court had in its earlier decisions emphasised the absence of a
common European approach as the basis for according a wide margin of
appreciation to Contracting States which refused post-operative legal
recognition to transsexuals. It now pointed out that the lack of common
approach, as noted in Sheffield and Horsham, related more to the handling of
the repercussions of legal recognition of a newly acquired gender, which it
described as “hardly surprising” given that the states had widely diverse legal
systems and traditions. It therefore
decided to attach:
“...less importance to the lack of evidence
of a common European approach to the resolution of the legal and practical
problems posed, than to the clear and uncontested evidence of a continuing
international trend in favour not only of increased social acceptance of transsexuals
but of legal recognition of the new sexual identity of post-operative
transsexuals.”[79]
(e)
It also reversed its previously expressed view that the restriction did
not impair the essence of the right since there was no legal impediment against
a post-operative male-to-female transsexual marrying a woman, stating as
follows:
“The Court has therefore considered whether
the allocation of sex in national law to that registered at birth is a
limitation impairing the very essence of the right to marry in this case. In
that regard, it finds that it is artificial to assert that post-operative
transsexuals have not been deprived of the right to marry as, according to law,
they remain able to marry a person of their former opposite sex. The applicant
in this case lives as a woman, is in a relationship with a man and would only
wish to marry a man. She has no possibility of doing so. In the Court's view,
she may therefore claim that the very essence of her right to marry has been
infringed.”[80]
(f)
Moreover, since the exclusion of post-operative transsexual persons
impaired the very essence of the right, the need for change could no longer be
left within the margin of appreciation of Contracting States. To so hold:
“...would be tantamount to finding that the
range of options open to a Contracting State included an effective bar on any
exercise of the right to marry. The margin of appreciation cannot extend so
far. While it is for the Contracting State to determine inter alia the
conditions under which a person claiming legal recognition as a transsexual
establishes that gender re-assignment has been properly effected or under which
past marriages cease to be valid and the formalities applicable to future
marriages (including, for example, the information to be furnished to intended
spouses), the Court finds no justification for barring the transsexual from
enjoying the right to marry under any circumstances.”[81]
(g)
The Court had earlier pointed out that it did not underestimate
“... the difficulties posed or the
important repercussions which any major change in the system will inevitably
have, not only in the field of birth registration, but also in the areas of
access to records, family law, affiliation, inheritance, criminal justice,
employment, social security and insurance.”[82]
Its view, however, was that such
difficulties were far from insuperable and that:
“...society may reasonably be expected to
tolerate a certain inconvenience to enable individuals to live in dignity and
worth in accordance with the sexual identity chosen by them at great personal
cost.”[83]
78. The ECtHR’s decision in Goodwin was accepted
by the United Kingdom Government and prompted it to announce that it would
bring forward primary legislation allowing “transsexual people who can
demonstrate that they have taken decisive steps towards living fully and
permanently in the acquired gender to marry in that gender” and also dealing
with other issues arising from legal recognition of acquired gender.[84]
79. While the House of Lords in Bellinger held to
the view that as a matter of statutory construction in domestic law, the
Corbett biological criteria, fixed at the time of birth, remained determinative
of who qualified as a “man” and a “woman” for the purposes of marriage, their
Lordships accepted that the law so construed was incompatible with ECHR
Articles 8 and 12. Lord Nicholls (with
whom the other members of the House of Lords agreed) acknowledged this and held
that a declaration of incompatibility with Articles 8 and 12 should be made:
“The question is whether non-recognition of
gender reassignment for the purposes of marriage is compatible with articles 8
and 12. The answer to this question is clear: it is not compatible. The
European Court of Human Rights so found in July 2002 in Goodwin, and the
Government has so accepted. ...
If a
provision of primary legislation is shown to be incompatible with a Convention
right the court, in the exercise of its discretion, may make a declaration of
incompatibility under section 4 of the Human Rights Act 1998. In exercising
this discretion the court will have regard to all the circumstances. In the
present case the government has not sought to question the decision of the
European Court of Human Rights in Goodwin 35 EHRR 447. Indeed, it is committed
to giving effect to that decision. Nevertheless, when proceedings are already
before the House, it is desirable that in a case of such sensitivity this
House, as the court of final appeal in this country, should formally record
that the present state of statute law is incompatible with the Convention. I
would therefore make a declaration of incompatibility as sought.”[85]
80. We have in this judgment similarly held that
as a matter of construction, the statutory intent underlying MCO section
20(1)(d), and by extension MO section 40, was to adopt the Corbett approach
when section 1(c) of the Nullity of Marriage Act 1971 was reproduced in our
statute book. We turn next to consider the constitutionality of those sections
so construed.
F.5 The Registrar’s main arguments
81. The Registrar argues in the first place that
at the times when the relevant constitutional instruments were promulgated (the
ECHR in 1950, the International Covenant on Civil and Political Rights
(“ICCPR”) – upon which Article 19(2) is founded – in 1966, the Joint
Declaration in 1984, and the Basic Law in 1990), the framers should be assumed
to have adopted a traditional approach to the nature of marriage and to the
question of who qualifies as a “woman” for the purposes of the right to marry,
along lines similar to those adopted by Ormrod J in Corbett.
82. The argument is that there is at present no
reason to give “woman” a different meaning, especially in the absence of
evidence that there has developed either a social consensus in Hong Kong or an
international consensus among State Parties to the ICCPR in favour of
permitting a transsexual woman like W to marry a man. On this basis, the Registrar submits that the
Court should hold that there is no inconsistency between the capacity to marry
under our domestic statutes construed along Corbett lines and the right to
marry as laid down in Article 37 or Article 19(2).
83. Secondly, the Registrar reiterates that for
the purposes of interpreting the constitution no less than of construing the
Ordinances, the repercussions of legally recognizing the acquired gender of
someone like W for the purposes of marriage are so far-reaching and complex
that the Court should in any event refrain from intervening in a piecemeal
fashion, whether by way of a remedial interpretation or otherwise, and should
instead leave any changes to be made systematically by the legislature.
F.6 Changes to the institution of marriage
84. We are not persuaded that as at the dates
when the various constitutional documents were promulgated, the framers would necessarily
have accepted the approach adopted in Corbett.
In any event, even if the hypothesis that they would have done so is
reasonable, it is clear (as this Court has held) that the Basic Law (and the
ICCPR as given constitutional effect by the Bill of Rights and Article 39 of
the Basic Law) are living instruments intended to meet changing needs and
circumstances.[86] This is also true of
the ECHR, as recognized by the ECtHR in Tyrer v UK[87] and A, B and C v Ireland.[88] Thus, in Cossey v United Kingdom,[89] the
Strasbourg Court acknowledged that departure from a position previously adopted
may be warranted “in order to ensure that the interpretation of the Convention
reflects societal changes and remains in line with present-day conditions.” When the position in Hong Kong in 2013 is
examined, it is in our view clear that there have been significant changes
which call into question the concept of marriage adopted as a premise by Ormrod
J and also the criteria which he deduced therefrom.
85. As noted above,[90] the concept of marriage
adopted in Corbett was derived from the classic description of a Christian
marriage in Hyde v Hyde with an emphasis on procreative sexual intercourse
being an essential purpose of the matrimonial union. While the legal definition
of marriage referred to above remains the same, there have in many developed
nations and in Hong Kong clearly been far-reaching changes to the nature of
marriage as a social institution. This
was cogently expressed by Thorpe LJ in his dissenting judgment in Bellinger in
the Court of Appeal:
“...the world that engendered those classic
definitions has long since gone. We live in a multi-racial, multi-faith
society. The intervening 130 years have seen huge social and scientific
changes. Adults live longer, infant mortality has been largely conquered,
effective contraception is available to men and women as is sterilisation for
men and women within marriage. Illegitimacy with its stigma has been legislated
away: gone is any social condemnation of cohabitation in advance of or in place
of marriage. Then marriage was terminated by death: for the vast majority of
the population divorce was not an option. For those within whose reach it lay,
it carried a considerable social stigma that did not evaporate until relatively
recent times. Now more marriages are terminated by divorce than death. Divorce
could be said without undue cynicism to be available on demand. These last
changes are all reflected in the statistics establishing the relative decline in
marriage and consequentially in the number of children born within marriage.
Marriage has become a state into which and from which people choose to enter
and exit. Thus I would now redefine marriage as a contract for which the
parties elect but which is regulated by the state, both in its formation and in
its termination by divorce, because it affects status upon which depend a
variety of entitlements, benefits and obligations.”[91]
86. It has of course never been a legal
requirement that two individuals should be able to or wish to procreate
children together as a condition of their getting married. People who are past child-bearing or
child-begetting age, people who use contraceptives or have had themselves sterilised,
and people who simply do not wish to have children, can get married, like
anyone else. Developments such as those
referred to by Thorpe LJ go further.
They indicate how, taking such changes as a whole, the institution of
marriage has evolved so that in contemporary society, the importance attributed
by Ormrod J to procreation as the essential constituent of a Christian marriage
has much diminished. Men and women who
decide to share their lives together now exercise far greater choice in
deciding whether to marry at all, whether to have children, how their property
should be dealt with and indeed, whether they should remain together as a
couple. While many in society will still
no doubt regard procreation as of great importance to a marriage, many others
will take a different view. Many people
now marry without having children, while many others have children without
getting married, neither group attracting social opprobrium.
87. In AG (CTH) v “Kevin and Jennifer”,[92] the
Full Court of the Australian Family Court dealt with an argument which
similarly sought to deduce biological criteria for sexual identity on the basis
that procreation is an essential purpose of marriage:
“The
real point of the Attorney-General's submission was to support an argument that
pro-creation is one of the essential purposes of marriage. It was argued that
it follows from this that the biological characteristics of a person are
central to determining a person's status as a man or a woman. It was put that
the historical importance of the sexual relationship in marriage remains and
that it is because of this significance that the law continues to look to the
physical attributes, and not the psychological or social attributes, of a
person. It is therefore said that because of Kevin's biological inability to
procreate, the marriage to Jennifer could not be a valid marriage.”[93]
88. That argument was rejected, their Honours
stating:
“Like the trial judge, we reject the
argument that one of the principal purposes of marriage is procreation. Many
people procreate outside marriage and many people who are married neither
procreate, nor contemplate doing so. A significant number of married persons cannot
procreate either at the time of the marriage or subsequently -- an obvious
example being a post-menopausal woman.”[94]
89. The developments mentioned above compel
re-examination of the premise – that procreative sexual intercourse is an
essential constituent of marriage – from which the Corbett biological criteria
were deduced. In present-day multi-cultural Hong Kong where people profess many
different religious faiths or none at all and where the social conditions
described by Thorpe LJ by and large prevail, procreation is no longer (if it
ever was) regarded as essential to marriage.
There is certainly no justification for regarding the ability to engage
in procreative sexual intercourse as a sine qua non of marriage and thus as the
premise for deducing purely biological criteria for ascertaining a person’s sex
for marriage purposes.
F.7 The Corbett criteria re-considered
90. If one leaves aside that premise, it is not
easy to see any justification for confining the criteria for deciding who counts
as “a woman” for marriage purposes to biological criteria fixed at birth, and
ignoring the psychological, post-operative and social dimensions of the
transsexual person’s sexual identity viewed at the time of the proposed
marriage. Such a selective choice of
criteria is particularly hard to justify in the light of significant medical
advances in the treatment of transsexualism and important changes in the
understanding of and social attitudes towards transsexual persons which have
occurred over the last 40 odd years.
F.7a
Medical advances and changed societal attitudes
91. When the applicant in Corbett had her SRS in
1960, such surgery was not readily available in the United Kingdom. She had to have it performed in Casablanca by
a Dr Georges Burou who pioneered that surgical procedure. In B v B,[95] the New York Court noted that
in the 15 years before 1974, Dr Burou had performed some 700 male-to-female
operations. When Ormrod J decided the
Corbett case in 1970, it appears that SRS was not yet regarded by the medical
community as the accepted therapy for severe cases of transsexualism. His Lordship noted that transsexuals “do not
appear to respond favourably to any known form of psychological treatment” and
commented that “consequently, some serious minded and responsible doctors are
inclining to the view that such operations may provide the only way of
relieving the psychological distress.”[96]
92. Today, transsexualism is everywhere
recognized as a condition requiring medical treatment, with diagnostic criteria
approved by the World Health Organization.
The therapeutic regimen spanning several years, involving psychiatric
assessment, hormonal treatment, monitored “real life experience” and ultimately
SRS, is not only readily available and well-developed, but is often provided by
health authorities at public expense.[97]
93. This is true of Hong Kong where, as noted
above, the first documented SRS procedure was performed in 1981. In 1986, the Government set up the Gender
Identity Team in the Psychiatric Unit of Queen Mary Hospital and, in 2005,
treatment was made available to gender identity disorder patients throughout
Hong Kong in line with the Hospital Authority’s district hospital clustering
concept. And as Andrew Cheung J recorded
in the present case:
“In 2005, the Government set up a ‘Gender
Identity and Sexual Orientation Unit’ to handle gender identity and sexual
orientation issues and to liaise with relevant non-government organisations in
relation to the same. Amongst other things, the Unit is responsible for
maintaining an enquiry and complaint hotline, keeping statistics and details of
the enquiries and complaints for future reference, conducting research on
gender identity and sexual orientation issues, and organising further promotional
activities to promote equal opportunities on the ground of sexual orientation.
It also serves as the secretariat of the Sexual Minorities Forum, a forum set
up by the Government for policy review and formulation purposes. It provides a
channel for non-government organisations and the Government to exchange views
on human rights and other issues concerning sexual minorities (including
transsexual persons) in Hong Kong.”[98]
94. As we have noted, on completion of SRS, the
Hospital Authority issues the patient with a letter certifying that the
patient’s gender has been changed, enabling the patient to be issued with a new
identity card and passport which reflect that change and which permit his or
her acquired gender to be recognized for many other purposes. Present day practice shows how, in the 40 odd
years since Corbett, official policies and societal attitudes have evolved,
with post-operative transsexuals now being recognized as persons of their
acquired gender for a whole range of purposes. This is of course not to suggest
that transsexual men and women no longer face prejudice and hostile treatment
in the tabloid press and elsewhere in society. Considerable advances have
nonetheless been made.
95. The position of W in the midst of such changes
may be considered. From an early age she
has psychologically held the unchangeable perception of herself as a woman and
then made a long and painful transition which involving surgical removal of the
original male genital and gonadal organs; hormonal or surgical creation of
female breasts; surgical construction of an artificial vagina which permits
sexual intercourse with a man; learning to live in society as a woman; and
obtaining official recognition as a female for the purposes mentioned above, although
retaining male XY chromosomes. Having
had access to surgical, hormonal and psychiatric treatment of undoubtedly
greater sophistication than available in Corbett’s time, she may now properly
be described as an individual who is psychologically, medically and socially a
woman living and having a physical relationship with a man, although a woman
who is unable to bear children. Of the
three biological criteria applied in Corbett with exclusionary effect, the male
genital and gonadal factors have been permanently eliminated and only the male
chromosomal criterion remains.
96. We think it would be quite wrong to exclude
such a transsexual person from the right to marry in her acquired gender by
characterising her as a “pseudo-type of woman”, a term used by Nestadt J in W v
W, a South African case decided in 1976.[99]
97. We share the view expressed by the ECtHR in
Goodwin[100]that it is not at all apparent that this chromosomal element,
amongst all the others, should take on decisive significance in the legal
attribution of gender identity for transsexuals for the purposes of
marriage. We respectfully agree with
Thorpe LJ’s view in his dissenting judgment in Bellinger,[101] that confining
the test to physiological factors is manifestly incomplete, especially so where
those factors are, after sex reassignment treatment, further confined to the
chromosomal element. As Lockhart J put
it:
“Sex is not merely a matter of chromosomes,
although chromosomes are a very relevant consideration. Sex is also partly a
psychological question (a question of self perception) and partly a social
question (how society perceives the individual).” [102]
F.7b The
importance of psychological and social factors as criteria
98. The importance of the psychological and
social dimensions of a transsexual person’s sexual identity is now far better
understood than in Corbett’s time. It is
evident from Ormrod J’s judgment that the psychological forces driving the
transsexual to seek sex reassignment were then given little weight. The
following passage is revealing:
“Socially, by which I mean the manner in
which the respondent is living in the community, she is living as, and passing
as a woman, more or less successfully. Her outward appearance at first sight
was convincingly feminine but on closer and longer examination in the witness box
it was much less so. The voice, manner, gestures and attitudes became
increasingly reminiscent of the accomplished female impersonator. The evidence
of the medical inspectors and of the other doctors who had an opportunity
during the trial of examining the respondent clinically is that the body in its
post-operative condition looks more like a female than a male as a result of
very skilful surgery. Professor Dewhurst, after this examination, put his
opinion in these words: ‘the pastiche of femininity was convincing.’ That, in
my judgment, is an accurate description of the respondent.”[103]
99. To liken a post-operative transsexual woman
to a “female impersonator” and to describe her as representing a “pastiche of
femininity” (just as much as describing her as a “pseudo-type of woman”)
suggests an element of artifice and betrays a failure to recognize the
fundamental importance and potency of the individual’s psychological compulsion
as a determinant of her sexual identity, a compulsion which is widely acknowledged
today.
100. As Lord Nicholls recognized in
Bellinger:[104]
“...Much suffering is involved for those
afflicted with gender identity disorder. Mrs Bellinger and others similarly
placed do not undergo prolonged and painful surgery unless their turmoil is
such that they cannot otherwise live with themselves. Non-recognition of their
reassigned gender can cause them acute distress.”
101. And as the ECtHR noted in Goodwin:
“...given the numerous and painful
interventions involved in such surgery and the level of commitment and
conviction required to achieve a change in social gender role, ... it [cannot]
be suggested that there is anything arbitrary or capricious in the decision
taken by a person to undergo gender re-assignment.”[105]
102. That transsexual persons are willing to endure
such a long and painful ordeal to acquire a body which conforms as far as
possible with their self-perception and to struggle for social recognition in
their acquired gender is clear evidence of the fundamental importance of the
psychological factor as a determinant of their sexual identity. For the law to exclude that factor as a
criterion is quite unjustifiable.
F.7c The
inadequacy of the Corbett criteria
103. It follows from the foregoing discussion that,
in our view, the Corbett criteria which underlie the construction of MCO
section 20(1)(d) and MO section 40 must be regarded as too restrictive and
should no longer be accepted. In
addressing the question whether an individual like W qualifies as “a woman” so
as to be entitled to marry a man, the Court ought in principle to consider all
the circumstances – biological, psychological and social – relevant to
assessing that individual’s sexual identity at the time of the proposed
marriage. We can see no good reason for
the Court to adopt criteria which are fixed at the time of the relevant
person’s birth and regarded as immutable.
That is to adopt a blinkered view, looking only at circumstances
existing at a time when the psychological element – which is so important to
the sexual identity of transsexuals – was not manifest, and when the surgical
and social transformation of the individual had not yet taken place. It is
contrary to principle that the Court, in making the important determination of
whether a transsexual person has in law the right to marry, should be prevented
from taking account of all the available evidence.
104. In AG (CTH) v “Kevin and Jennifer”,[106] the
Full Court expressed a similar view:
“We have difficulty in understanding how
the Corbett test can continue to be applied in face of the evidence, not only
as to brain sex,[107] but also as to the importance of psyche in determining
sex and gender. The fact that these issues cannot be physically determined at
birth seems to us to present a strong argument: first, that a child's sex
cannot be finally determined at birth; and second, that any determination at
that stage is not and should not be immutable.”
105. The inadequacy of the Corbett criteria was
central to the ECtHR’s decision in Goodwin to hold that the English statute was
incompatible with Article 12[108] of the ECHR, an incompatibility which the
House of Lords accepted in Bellinger. As
we noted above,[109] the ECtHR stated:
“The
Court is not persuaded that at the date of this case it can still be assumed
that these terms must refer to a determination of gender by purely biological
criteria. There have been major social changes in the institution of marriage
since the adoption of the Convention as well as dramatic changes brought about
by developments in medicine and science in the field of transsexuality. The
Court has found above, under Article 8 of the Convention, that a test of
congruent biological factors can no longer be decisive in denying legal
recognition to the change of gender of a post-operative transsexual. There are
other important factors—the acceptance of the condition of gender identity
disorder by the medical professions and health authorities within Contracting
States, the provision of treatment including surgery to assimilate the
individual as closely as possible to the gender in which they perceive that
they properly belong and the assumption by the transsexual of the social role
of the assigned gender.”[110]
106. To apply statutory criteria which are
incomplete and which do not permit a full assessment of the sexual identity of
an individual for the purposes of determining whether such person has the right
to marry is inconsistent with, and constitutes a failure to give proper effect
to, the constitutional right guaranteed by Article 37 and Article 19(2).
107. We have in Section A of this judgment, set
out the factors which, Dr Ho Pui Tat identified as relevant to assessing the
sexual identity of an adult individual.
In our view, all of those factors ought properly to be taken into
account as they exist at the time of the marriage or proposed marriage when
ascertaining whether the individual concerned has the right to marry in his or
her acquired gender. In Section H below,
we address the question of what, after taking account of all such criteria, the
determining test of who counts as “a woman” for marriage purposes should
be. But before turning to that question,
there is a further reason why the relevant statutory provisions, construed as
endorsing the Corbett criteria, are unconstitutional.
F.8 Impairing the very essence of the right
108. As indicated above,[111] while the right to
marry is necessarily subject to legal rules regulating its exercise, such rules
must be consistent with, and must not operate to impair the very essence of,
the constitutional right. [112]
109. The existing statutory provisions, construed
as aforesaid, preclude W from marrying a man.
In the light of the irreversible surgery which she has undergone to
eliminate the original male genital and gonadal organs; and in the light of her
implacable rejection of her male sexual identity, there is no question of her
enjoying in any meaningful sense the right to marry by being able to marry a
woman. The applicant in Goodwin v UK was
in the same position and, as we have noted, the Grand Chamber decided that she
had been denied the essence of the right to marry. It held:
“...that it is artificial to assert that
post-operative transsexuals have not been deprived of the right to marry as,
according to law, they remain able to marry a person of their former opposite
sex. The applicant in this case lives as a woman, is in a relationship with a
man and would only wish to marry a man. She has no possibility of doing so. In
the Court’s view, she may therefore claim that the very essence of her right to
marry has been infringed.”[113]
110. As the New Zealand Court in AG v Otahuhu
Family Court,[114] pointed out, “Once a transsexual has undergone surgery, he
or she is no longer able to operate in his or her original sex.” And as the Australian Court recognized, after
surgery rendering “the patient’s psychic association with the female sex ...
strongly supported by anatomical changes”, it is “impossible to go back”.[115]
111. All this applies to W and we conclude that
MCO section 20(1)(d) and MO section 40, construed as endorsing the Corbett
criteria, operate to prevent W from
marrying at all. They are therefore
provisions which unconstitutionally impair the very essence of the right to
marry guaranteed by Article 37 and Article 19(2).
112. In the light of the aforesaid conclusions, it
is unnecessary to embark upon a discussion of the extent, if any, to which W’s
right to privacy under Article 14 under the Bill of Rights may support her
constitutional right to marry.
F.9 Consensus
113. An argument which we should mention is one
which was pressed by the Registrar. The
submission is that, by analogy with the reluctance of the ECtHR, prior to its
decision in Goodwin, to declare the United Kingdom’s position on transsexual
marriage a violation of the right to marry protected by ECHR Article 12 because
of the lack of a European consensus on the issue, this Court should be equally
reticent to declare the relevant statutory provisions unconstitutional unless
persuaded that there is a general consensus among the people of Hong Kong in
favour of permitting such individuals to marry in their acquired gender. It is submitted that there is no evidence
either of such social consensus or of an international consensus among
countries which are signatories to the ICCPR.
114. We do not accept that argument, even assuming
that such consensus can somehow be guaged.
In the first place, we do not consider that the practice of the ECtHR in
seeking a European consensus when considering the margin of appreciation has
any bearing on the Court’s role in interpreting the HKSAR’s constitution in a
case like the present. In R (Al Skeini)
v Defence Secretary,[116]Lord Rodger of Earlsferry’s explanation of the ECtHR’s
practice by reference to the very nature and make-up of that Court highlights
the very different situation of this Court (and of States Parties to the
ICCPR). His Lordship put it thus:
“The essentially regional nature of the
Convention is relevant to the way that the court operates. It has judges
elected from all the contracting states, not from anywhere else. The judges
purport to interpret and apply the various rights in the Convention in
accordance with what they conceive to be developments in prevailing attitudes
in the contracting states. This is obvious from the court's jurisprudence on
such matters as the death penalty, sex discrimination, homosexuality and
transsexuals. The result is a body of law which may reflect the values of the
contracting states, but which most certainly does not reflect those in many
other parts of the world.”
115. There is, moreover, a more fundamental
objection to the consensus argument. As
we stated in Section F.6 above, we of course accept that the Basic Law and the
Bill of Rights are living instruments intended to meet changing needs and
circumstances. However, it is one thing to have regard to such changes as a
basis for accepting a more generous interpretation of a fundamental right and
quite another to point to the absence of a majority consensus as a reason for
denying recognition of minority rights.
Thus, as we pointed out, in its case-law leading up to its Goodwin
decision, the ECtHR acknowledged that a departure from a position previously
adopted – involving the upholding of the
United Kingdom’s then denial of the right to marry – may be warranted “in order
to ensure that the interpretation of the Convention reflects societal changes
and remains in line with present-day conditions.” Such a departure involved expanding the reach
of the right on the basis of societal changes.
116. Reliance on the absence of a majority
consensus as a reason for rejecting a minority’s claim is inimical in principle
to fundamental rights. The Chief Justice
of Ireland, Murray CJ, made the point extra-judicially in the following terms:
“...The use of consensus as an interpretive
tool is inherently problematic, not only because of any perceived inconsistency
in the application of the doctrine by the [ECtHR], but fundamentally because
the very application of a doctrine of consensus by a court required to
adjudicate on fundamental rights begs important questions of legitimacy. How
can resort to the will of the majority dictate the decisions of a court whose
role is to interpret universal and indivisible human rights, especially
minority rights?...”[117]
G. Conclusion as to construction and
constitutionality
117. For the reasons discussed, we conclude that
the Registrar did not misconstrue MO section 40 or MCO section 20(1)(d). The statutory intention behind enactment of
MCO section 20(1)(d) was to reproduce in our statute book section 1(c) of the
Nullity of Marriage Act 1971, later re-enacted as section 11(c) of the
Matrimonial Causes Act 1973, and thereby to import into Hong Kong the
endorsement which the United Kingdom Parliament gave to the Corbett criteria
for determining who was “a woman” for the purposes of marriage. Since MO section 40 (which does not have an
English equivalent) covers materially the same ground as MCO section 20(1)(d),
the Registrar’s approach was in accordance with the true construction of both
of those provisions.
118. However, the Corbett criteria are incomplete
in that they are limited to a person’s biological features existing at the time
of birth and treated as immutable. They
ignore the psychological and social elements of a person’s sexual identity and
ignore any sex reassignment treatment that has occurred. As such, they do not permit a full and
appropriate assessment of the sexual identity of a person to be made for the
purposes of determining whether he or she has the right to marry. In adopting such restrictive criteria, the
provisions are inconsistent with and fail to give proper effect to the
constitutional right to marry. They are
therefore unconstitutional.
119. Additionally, they are unconstitutional since
they impair the very essence of the right to marry. Viewing the realities of W’s position, by denying
a post-operative transsexual woman like her the right to marry a man, the
statutory provisions in question deny her the right to marry at all. They are therefore unconstitutional for this
additional reason.
H. Relief
H.1 Further submissions
120. Because of the possible ramifications of the
judgment in other areas of the law, both parties have requested the Court to
afford them the opportunity to make further submissions as to the exact terms
of the declaration to be granted and whether it should have immediate effect in
the event that the Court finds in favour of the appellant. We agree that such course is advisable. We should nonetheless indicate (i) what
relief we consider the appellant to be entitled to in any event; (ii) which
areas we think may helpfully be considered for consequential legislation and
how some of the main issues might be approached; and (iii) what would follow in
the event that no legislation is enacted.
H.2 The relief to which W would be entitled in
any event
121. It is well-established that where the Court
concludes that a piece of legislation is unconstitutional, it has a duty either
to declare it invalid or, as noted above,[118] to provide a remedial
interpretation rendering the provision consistent with the constitution.[119] This was stated in Ng Ka Ling v Director of
Immigration,[120] as follows:
“In exercising their judicial power
conferred by the Basic Law, the courts of the Region have a duty to enforce and
interpret that Law. They undoubtedly have the jurisdiction to examine whether
legislation enacted by the legislature of the Region or acts of the executive
authorities of the Region are consistent with the Basic Law and, if found to be
inconsistent, to hold them to be invalid. The exercise of this jurisdiction is
a matter of obligation, not of discretion so that if inconsistency is established,
the courts are bound to hold that a law or executive act is invalid at least to
the extent of the inconsistency.”
122. In this context, while we accept (as we
explain below) that the legislature may potentially play a highly valuable and
constructive role in making provision for certain legal consequences that flow
from our ruling of unconstitutionality, we cannot accept the argument that the
Court should “leave it to the legislature” and should not itself decide upon
the constitutional validity of the provisions as (correctly) construed by the
Registrar.
123. It follows that while we are prepared to
await further submissions from the parties before finalising the Orders to be
made and would be amenable to suspending the operation of such Orders for an
appropriate period to give time for the enactment of legislation,[121] we hold
that it is necessary in principle that a remedial interpretation should be
given to MCO section 20(1)(d) and MO section 40. It is a remedial interpretation which
requires the references to “woman” and “female” to be read as capable of
accommodating post-operative male-to-female transsexual persons for marriage
purposes and as allowing account to be taken of the full range of criteria for
assessing sexual identity, viewed at the date of the marriage or proposed
marriage.
124. On that basis, we hold that a transsexual in
W’s situation, that is, one who has gone through full SRS, should in principle
be granted a declaration that, consistently with Article 37 of the Basic Law
and Article 19(2) of the Bill of Rights, she is in law entitled to be included
as “a woman” within the meaning of MO section 40 and MCO section 20(1)(d) and
therefore eligible to marry a man. We
would not seek to lay down a rule that only those who have had full gender
reassignment surgery involving both excising and reconstructive genital
surgery, qualify. We leave open the
question whether transsexual persons who have undergone less extensive
treatment might also qualify.
125. In adopting that approach, we are of course
conscious of the need, acknowledged in Section F.7c above, to address the
question of what, upon applying the full range of criteria for assessing a
person’s sexual identity, the test or means for determining who counts as “a
woman” for marriage purposes should be.
That question is shortly to be addressed. However, in our view, a transsexual person
who, as Dr Albert Yuen Wai Cheung explained, has been issued with a certificate
that his or her gender has been changed on the basis that the original genital
organs have been removed and some form of the genital organs of the opposite
sex have been constructed, ought in any event to qualify as a person entitled
to marry in his or her acquired gender.
126. We consider this a result which should be
reached as a matter of constitutional principle. As the ECtHR stated in Goodwin: “...the very
essence of the Convention is respect for human dignity and human freedom.”
[122] We agree with the observation of Lord Nicholls in Bellinger[123] that recognising
such an individual’s change of gender is necessary to avoid:
“... condemning post-operative transsexual
people to live in what was aptly described by the European Court of Human
Rights in the Goodwin case 35 EHRR 447 as an intermediate zone, not quite one
gender or the other.”
H.3 Areas which would benefit from legislative
intervention
127. As previously mentioned, it is likely that in
most cases, no difficulty will be encountered in applying gender-specific
statutory and other legal provisions to a person whose gender change has been
legally recognized. To take a relatively trivial example, a transsexual woman
who previously used the men’s toilet and changing facilities will now use such
facilities reserved for women without breaking any laws[124] regulating their
use.
128. But we of course recognize that possibly
difficult issues could arise in certain areas and it is with a view to allowing
an opportunity for the Government and the legislature to consider enacting
legislation to deal with such areas that we are prepared to suspend operation
of the Orders to be made by the Court.
We also recognize that in addressing such potential problems, it is
necessary to strike a balance between the rights of transsexual persons and the
rights of others who may be affected by recognition of the gender change. The necessary balance was considered
extra-judicially by Lord Reed as follows:
“... for the law to ignore transsexualism,
either on the basis that it is an aberration which should be disregarded, or on
the basis that sex roles should be regarded as legally irrelevant, is not an
option. The law needs to respond to society as it is. Transsexuals exist in our
society, and that society is divided on the basis of sex. If a society accepts
that transsexualism is a serious and distressing medical problem, and allows
those who suffer from it to undergo drastic treatment in order to adopt a new
gender and thereby improve their quality of life, then reason and common
humanity alike suggest that it should allow such persons to function as fully
as possible in their new gender. The key words are ‘as fully as possible’: what
is possible has to be decided having regard to the interests of others (so far
as they are affected) and of society as a whole (so far as that is engaged),
and considering whether there are compelling reasons, in the particular context
in question, for setting limits to the legal recognition of the new
gender.”[125]
H.4 The test for who qualifies as “a woman” for
marriage purposes
129. The first area in which legislative
intervention would, in our view, be highly beneficial involves establishing the
means for deciding who qualifies as “a woman” or “a man” for marriage and other
purposes.
130. Two main approaches to deciding that question
in the context of marriage have emerged.
The first involves the formulation by judges of some test – usually
involving the drawing of a line at some point in the sex reassignment process –
for marking the stage at which a gender change is recognized. The second approach involves establishing a
gender recognition procedure whereby each case is examined with a view to
certification by an expert panel without necessarily adopting any bright line
test. The latter approach can obviously
only be achieved by legislation.
131. The first approach often involves the court
drawing the line at the point where surgery is performed. This is understandable since the preceding
hormonal and psychiatric treatments are generally reversible, while sex reassignment
surgery is not. However, there are
stages of such surgery to be considered: Is it enough that the individual’s
original genital organs have been removed?
Must the surgery extend to the construction of some form of the genital
organs of the acquired gender? Must
those organs be such as to permit sexual intercourse in the acquired gender?
132. A few examples of how judges have responded
to such questions may be mentioned. In
the Australian case of Secretary, Dept of Social Security v “SRA”[126] the line
was drawn between pre- and post-operative transsexuals, with Black CJ regarding
“post-operative” cases as comprising only those where both removal and
reconstruction of external genitalia have taken place:
“Where through medical intervention a
person born with the external genital features of a male has lost those
features and has assumed, speaking generally, the external genital features of
a woman and has the psychological sex of a woman, so that the genital features
and the psychological sex are in harmony, that person may be said, according to
ordinary English usage today, to have undergone a sex change.”
133. The majority in the Court of Appeal in
Bellinger,[127]recorded that a similar test had been adopted in German
legislation which, after laying down certain preconditions, required the person
to have “undergone an operation by which clear resemblance to the other sex has
been achieved.”
134. In MT v JT,[128] a more demanding test was
adopted by a New Jersey Court. The
post-operative individual was required to have “sexual capacity” in his or her
acquired gender, meaning “the physical ability and the psychological and
emotional orientation to engage in sexual intercourse as either a male or a
female.” Drawing the line at that point
excluded a female-to-male transsexual who had had a hysterectomy and mastectomy
but who had not received any male organs and was incapable of performing
sexually as a male.[129]
135. Such an outcome may be thought to be somewhat
harsh, especially as it affects female-to-male transsexuals. This was recognized in the New Zealand case
of AG v Otahuhu Family Court,[130] where the suggestion was made that less
exacting tests might perhaps be adopted in some contexts while retaining the more demanding tests for
the purposes of marriage:
“... there may need to be different
criteria in respect of different circumstances, involving the sex reassignment
of any one individual. ... A pre-operative transsexual who nevertheless dresses
and behaves in the assigned sex may be accepted in that sex for employment and
social purposes, and for documents such as driving licences. It may not be
appropriate for such a person whose genitals do not correspond with the sex of
assignment to be able to marry in that sex.”
136. Some form of line-drawing is probably the
only feasible approach if it is left to judges to determine what the test
should be. While we have no reason to think that those jurisdictions which have
followed that route have experienced any particular difficulties, it is an
approach which has evident disadvantages.
It would be highly undesirable to formulate different tests for
different purposes (as suggested in the Otahuhu case) so that a person would
only sometimes be recognized as an individual of his or her acquired
gender. That is, indeed, to some extent the
unsatisfactory position we have in Hong Kong at present. On the other hand, a bright line test applied
universally is inevitably likely to produce hard cases in certain circumstances
unless special provision is made.
Moreover, as Lord Nicholls points out,[131] drawing the line at the
point where full SRS has been undertaken may have an undesirable coercive
effect on persons who would not otherwise be inclined to undergo the surgery.
137. It is with such disadvantages in mind that we
have refrained, at least at this stage, from attempting any judicial
line-drawing of our own, contenting ourselves with declaring that a person in
W’s post-operative situation does qualify and leaving it open whether and to
what extent others who have undergone less extensive surgical or medical
intervention may also qualify.
138. The second approach, involving legislative
intervention, would in our view, be distinctly preferable. The legislature could set up machinery for an
expert panel to vet gender recognition claims on a case-by-case basis and also
to deal with some of the other legal issues mentioned below. A compelling model may readily be found in
the United Kingdom’s Gender Recognition Act 2004 (“GRA 2004”) which, it will be
recalled, was being prepared when Bellinger was decided in the House of Lords. The approach of the Act was then described by
Lord Nicholls as “primary legislation which will allow transsexual people who
can demonstrate they have taken decisive steps towards living fully and
permanently in the acquired gender to marry in that gender”.[132]
139. True to that description, the GRA 2004 does
not lay down a bright line test for when a transsexual person does or does not
qualify for recognition in his or her acquired gender. Instead, the Act sets up a panel with legal
and medical members which hears applications for gender recognition and
requires the panel to grant a gender recognition certificate :
“... if satisfied that the applicant—
(a) has or has had gender dysphoria,
(b) has lived in the acquired gender
throughout the period of two years ending with the date on which the
application is made,
(c) intends to continue to live in the
acquired gender until death, and
(d)
complies with the requirements imposed by and under section 3 [which
lays down the requirements regarding medical evidence and certain other
supporting documents].”
140. If a full gender recognition certificate[133]
is issued, the person’s gender becomes for all purposes the acquired gender,
save that this does not “affect things done, or events occurring, before the
certificate is issued; but it does operate for the interpretation of enactments
passed, and instruments and other documents made, before the certificate is
issued (as well as those passed or made afterwards)”.[134]
H.5 Other areas of the law where legislative
intervention would be beneficial
141. As the GRA 2004 indicates, several other
areas exist where legislative regulation would be particularly valuable. One prominent issue involves the impact of a
legally recognized gender change on an existing marriage. For example, a male-to-female transsexual may
be married to a woman before undergoing sex reassignment treatment qualifying
her for legal recognition in her acquired gender as a woman. What impact would that have on the marriage
and on the existing wife’s rights (and, if there are children, on the
children’s rights)? Does the transsexual
woman retain the rights and duties of a husband and father? If the couple wish to end the marriage, does
the gender change provide a ground for doing so? No doubt the courts could work out the
answers to such questions as they arise by applying existing legal provisions,
but it would obviously be far preferable to have a legislative solution worked
out in advance.
142. By way of illustration, the GRA 2004,
provides in various ways for such a situation. If the applicant is married, the
gender recognition panel can only grant an interim certificate and a full
certificate can only subsequently be issued where the marriage is annulled or
dissolved. The Act makes the issue of an interim gender recognition certificate
a ground for treating the existing marriage as voidable, enabling the parties
to annul the marriage and giving the Family Court full powers to deal with
ancillary relief. It makes it clear that
the change in gender does not affect the status of the person as father or
mother of a child.
143. Perusal of the GRA 2004 indicates that
legislative intervention would also be beneficial in areas which include (apart
from marriage and parenting) entitlement to benefits and pensions,
discrimination, succession, the position of trustees administering trusts,
sport, the application of gender-specific offences and recognition of foreign
gender change and marriage. In respect
of all these areas, the Act provides a practical model for possible approaches
to dealing with legal issues which could arise.
144. Furthermore, as that Act illustrates,
questions of disclosure could beneficially be dealt with by legislation. Again, simply by way of illustration, it
protects information concerning a person’s gender before it became the acquired
gender subject to rules and procedures as to when such information may be
disclosed.
145. Plainly, in any legislative scheme, cases may
arise where certain legal ramifications of recognizing a person’s acquired
gender have not been foreseen. To cater
for such eventuality, the GRA 2004 empowers a responsible minister to make
orders modifying the operation of any enactment or subordinate legislation in
relation to persons whose gender has changed.[135] The court’s are of course
accustomed to dealing with such issues.
146. The object of this discussion is simply to
draw attention to the sorts of questions which may arise in consequence of this
Court’s decision as to unconstitutionality and to indicate how legislation
would be beneficial in addressing such issues.
It is fortunate that existing models which are readily adaptable to Hong
Kong exist so that the task of providing a legislative framework is less
daunting that it might otherwise be. But
it is of course entirely a matter for the legislature to decide whether such
legislation should be enacted.
H.6 If there is no legislation
147. If such legislation does not eventuate, it
would fall to the Courts, applying constitutional principles, statutory
provisions and the rules of common law, to decide questions regarding the
implications of recognizing an individual’s acquired gender for marriage
purposes as and when any disputed questions arise. That would not, in our view, pose insuperable
difficulties.
148. In respect of the present appeal, we have
indicated in Section H.2 above, the nature of the relief which we consider W
entitled to in principle. Assuming that
having taken account of further submissions from the parties, the Court grants
W a declaration along the lines indicated below and suspends its operation for
an appropriate period, such declaration would in principle come into effect in
any event at the expiry of that period.
At that stage, supporting consequential legislation may or may not be in
place but W’s entitlement to appropriate relief should not be affected.
H.7 Conclusion
149. We would accordingly direct that the parties
be at liberty to lodge within 21 days from the date of this judgment,
submissions in writing in respect of the appropriate Orders to be made in the
light of the Court’s judgment and also submissions on costs, with liberty to
file written submissions in reply, if any, within 14 days thereafter.
150. Subject to any modifications which the Court
may consider warranted in the light of such submissions and subject to the
question of costs, we would make the following Orders, namely:
(a)
That the appeal be allowed;
(b)
That a Declaration be granted that, consistently with Article 37 of the
Basic Law and Article 19(2) of the Hong Kong Bill of Rights, section 20(1)(d)
of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance
must be read and given effect so as to include within the meaning of the words
“woman” and “female” a post-operative male-to-female transsexual person whose
gender has been certified by an appropriate medical authority to have changed
as a result of sex reassignment surgery;
(c)
That a Declaration be granted that the appellant is in law entitled to
be included as “a woman” within the meaning of section 20(1)(d) of the
Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance and is
accordingly eligible to marry a man;
(d)
That the Declarations in paragraphs (b) and (c) shall not come into
effect until the expiry of 12 months from the date of this Order.
Mr
Justice Chan PJ:
151. I would, with respect, reject the appellant’s
arguments on both the statutory construction issue and the constitutional issue
and dismiss her appeal.
152. For the reasons which I shall seek to explain
below, I am not persuaded that there is justification for extending the meaning
of “marriage” in art 37 of the Basic Law to include a transsexual marriage.
However, I can see a strong case for a comprehensive review of the relevant
legislation with a view to propose changes in the law concerning the problems
facing transsexuals as soon as practicable.
The
statutory construction issue
153. On the statutory construction issue, I agree,
for the reasons given by the courts below and the reasons discussed in the
joint judgment of Chief Justice Ma and Mr Justice Ribeiro PJ, that the
appellant’s argument cannot be accepted. In my view, it is clearly the
intention of the legislation to adopt the approach in Corbett v Corbett [1971]
P 83 for the purpose of marriage and that “man” and “woman” in s.40 of the
Marriage Ordinance, Cap 181 and also s.20(1)(d) of the Matrimonial Causes
Ordinance, Cap 179, mean a biological man and a biological woman. As a matter
of statutory construction, these words are not capable of being given an
extended meaning to cover a transsexual man or woman.
The
constitutional issue
154. On the constitutional issue, it is the
appellant’s case that she has a right to marry under art 37 of the Basic Law
(art 37) and art 19(2) of the Bill of Rights (art 19(2)). She accepts that
“marriage” under these constitutional provisions refers to a union between a
man and a woman. However, it is argued that she is a woman and should be
recognized as such for the purpose of marriage as provided in these
constitutional provisions and that if s.40 is interpreted as not permitting her
to marry on the ground that she is not a biological woman and cannot marry a
biological man, this provision (together with s.20(1)(d)) is incompatible with
art 37 and art 19(2). She asks the Court either to strike down or apply an
appropriate remedial interpretation to these legislative provisions.
The
relevant articles
155. Art 37 provides: “The freedom of marriage of
Hong Kong residents and their right to raise a family freely shall be protected
by law.” Art 19(2) of the Bill of Rights
provides: “The right of men and women of marriageable age to marry and to found
a family shall be recognized.”
156. For the purpose of the arguments in this
case, it is accepted that art 19(2) by expressly referring to men and women
does not add anything to the appellant’s argument on art 37. In the discussion
which follows, for the sake of clarity, I shall mainly deal with art 37.
157. The appellant also relies on art 14 of the
BOR which protects her right to privacy. However, as indicated by counsel, art
14 is not argued as a separate ground but is relied on in support of the right
to marry argument.
The
right to marry under art 37
158. The appellant’s contention that she has a
right to marry under art 37 raises the prior question of what is the nature of
the right to marry under this provision. As A Cheung J (now Cheung CJHC) and
the Court of Appeal pointed out, this is not a case of restriction on the right
to marry; it is a case of what that right entails. Since it is not disputed
that “marriage” in art 37 refers to a union between a man and a woman, the
dispute turns on the meaning of “man” and “woman” for the purpose of this
article. In effect, the question raised is whether on the true construction of
art 37, “man” and “woman”, the parties to a marriage, can be given a meaning to
include a transsexual man or transsexual woman.
159. The meaning contended for by the appellant of
“man” and “woman” is different from the ordinary meaning of these words. It
amounts to a radical change to the traditional concept of marriage. It also
represents a departure from the domestic law as it was and still is which must
have been intended to be the basis of art 37 when it was first enacted.
The
ordinary meanings of man and woman
160. The ordinary meanings of “man” and “woman”
for the purpose of marriage refer respectively to a biological man and a
biological woman capable of producing children. This accords with the common
understanding of these words and is also reflected in their meanings in the
dictionary. These words do not include a post-operative transsexual man and
woman, as submitted by the appellant.
161. There is no evidence that in Hong Kong, these
words have acquired any new contemporary meanings which are different from what
is commonly understood by these words. Neither were the House of Lords in
Bellinger v Bellinger [2003] 2 AC 467 able to discern evidence of such a change
in contemporary usage in the UK (#62). But contrast the situation in Australia
as discussed by the Full Court of the Family Court in Kevin and Jennifer [2001]
Fam CA 1074 in which it was held that there was evidence that the contemporary
meaning of these words in Australia has changed. Obviously, the situation
varies in each country, depending on its social and cultural conditions.
The
concept of marriage
162. The meaning contended for by the appellant
will also have an extremely important effect on the concept of marriage.
Marriage has been generally recognized as the basis of the family and the
family is an essential unit of society. Although there are men and women who do
not go through marriage, it is still regarded as an important social institution.
It has a long history and in many countries, also a religious and cultural
background. As Lord Nicholls remarked in Bellinger#46, marriage “is deeply
embedded as a relationship between two persons of the opposite sex.” People
such as Catholics and Christians, and if I may add, traditional Chinese, marry
for the purpose of procreation, although there are people who marry for other
purposes, such as mutual help and companionship.
163. Because there are people who get married and
set up their families, society finds it necessary to have a marriage
institution which is regulated by the law. The marriage institution confers
legal status from which follows practical and legal consequences affecting many
areas of life (Lord Nicholls in Bellinger #28). See also Lord Hope in #58.
Marriage confers legal status not only on the married couple, but also on their
children and their relatives. It is difficult and unrealistic to consider
marriage to be entirely unconnected with procreation.
164. There is no evidence that social attitudes in
Hong Kong on the institution of marriage have changed to the extent that this
concept of marriage has been abandoned or generally and substantially weakened.
As I shall seek to demonstrate later, the traditional concept of marriage was
one of the main bases on which the European Court of Human Rights (ECHR) in the
cases prior to Goodwin v UK (2002) 35 EHRR 18, held that there was no violation
of the right to marry by limiting the institution of marriage to exclude
transsexual men and women; and it was the change in this concept in Europe and
the UK as perceived by that court which persuaded it to come to a different
conclusion in Goodwin.
The
state of domestic legislation
165. When the Basic Law was drafted in the 1980s
and promulgated in 1990, the meaning of marriage in art 37 must have been
informed by the state of the domestic legislation at the time. (See the
relevance of the state of domestic law as part of the context for
interpretation of a constitutional provision in Chong Fung Yuen v Director of
Immigration (2001) 4 HKCFAR 211.) The right to marry under that article was
clearly intended to refer to the right to marry of a man and woman as it was
then understood. The case law and statute law have adopted the Corbett approach,
i.e. applying only the biological criteria, in deciding whether a party to a
marriage is a man or woman. That was the basis of the right to marry intended
to be protected under art 37 when it was drafted/adopted and promulgated.
166. It is submitted, however, that a
constitutional instrument is a living instrument and the meaning of its
provisions should be adapted to meet changing needs and circumstances. (Ng Ka
Ling v Director of Immigration (1999) 2 HKCFAR 4, p.28D). Lord Pannick QC for
the appellant argues that an updated interpretation should be given to art 37
because of changed circumstances: first, the Corbett approach can no longer be
relied on as the only criteria and secondly, international jurisprudence shows
that there have been developments regarding the recognition of transsexual
marriages in many countries.
167. The Corbett approach has been heavily
criticized for decades in numerous cases as being outdated and inadequate in
the light of the advancement made in medical science which suggests that the
psychological factor may become an important or even overriding consideration
later in life, say, at the time of marriage. However, this latter factor is
also regarded as not entirely satisfactory because there is no certainty as to
the stage at which psychological changes have become a dominant or decisive
factor in determining whether the party has become a person of the sex of his
or her choice for the purpose of marriage. This will have to depend on the
condition of the individual concerned.
168. One would readily acknowledge the force of
the criticisms on the Corbett approach and its shortcomings. They have been
discussed at length in the joint judgment of Ma CJ and Ribeiro PJ and I do not
propose to repeat them. (See, for instance, the comments made by Thorpe LJ in
his dissenting judgment in the Court of Appeal in Bellinger (#155)). Even if
the Corbett approach can no longer be regarded as satisfactory, whether the law
should be changed and how it could be improved should, as Lord Nicholls and
Lord Hope emphasized in Bellinger, be left to the legislature.
169. In the present case, we are of course dealing
with a different question: the interpretation of art 37 – whether legislation
adopting the Corbett approach is incompatible with this article. And this
brings us to Lord Pannick’s the second main point: whether art 37 should be
given an updated interpretation in the light of changed circumstances.
170. Until the present case, the position has
always been that the right to marry protected under art 37 is understood to
refer to the right to marry under the current legislation which was based on
the Corbett approach. While a constitutional provision can be given an updated
meaning if the circumstances so require, there must be strong and compelling
reasons for the Court now to depart from what has been generally understood to
be the law on a matter as fundamental as the marriage institution which has its
basis in the social attitudes of the community. A firm line has to be drawn
between giving an updated interpretation to a constitutional provision to meet
the needs of changing circumstances on the one hand and making a new policy on
a social issue on the other. The latter is not the business of the court. For
the former function, the court must be satisfied that there is sufficient
evidence to show that the present circumstances in Hong Kong are such as to
require the court to construe art 37 differently from the law which formed the
basis on which this article was drafted/adopted. In my view, in the absence of such evidence,
the Court should not invoke its power of constitutional interpretation to make
such a radical change.
The
international jurisprudence
171. Lord Pannick submits that circumstances have
changed in Europe and internationally which strongly indicate that a different
approach should now be taken in Hong Kong to include a transsexual man and
woman for the purpose of marriage. Counsel has referred us to a number of
decisions in other jurisdictions in support of his submission. He has also
drawn the Court’s attention to legislative changes in many countries in this
area of the law, such as Australia, New Zealand, Singapore, Canada and most of
the states in the United States. With respect, I would approach these
authorities and legislative changes with caution since the social conditions in
different countries are obviously not the same. The background to these changes
and the extent of such changes in each country are not entirely clear. It is
important to note that the discussions in these cases also show that there was
divergence of opinions over the proper treatment of transsexuals in different
countries.
172. Counsel relies in particular on Goodwin in
which the ECHR, departing from its previous decisions, held that the UK was in
breach of art 12 of the European Convention (which is similar to art 37) by
refusing to allow the post-operative transsexual complainant to get married
under the UK marriage legislation. (It is accepted that the jurisprudence on
similar provisions in the ICCPR is of less significance to the present case.)
It is submitted that Goodwin is of great persuasive authority for the present
case and should be followed.
Pre-Goodwin
decisions
173. Goodwin did not follow Rees v UK (1987) 9
EHRR 56; Cossey v UK (1990) 13 EHRR 622; andSheffield and Horsham v UK,(1998)
27 EHRR 163. In these 3 cases, the ECHR was asked to adjudicate on the
complaints by post-operative transsexuals against the UK Government for
violating their right to respect for private life and/or the right to marry
(art 8 and 12 of the European Convention). It was alleged by the complainant in
each case that the UK Government had refused to alter the register of birth or
issue a new birth certificate to reflect their sex change or prohibited him or
her to marry. In all these cases, the ECHR held that there was no violation of
both articles.
174. An examination of the reasons given by the
ECHR in these cases clearly shows that in considering the right to marry under
art 12 of the European Convention, the court held that the traditional concept
of marriage was of crucial importance. In Rees, the ECHR emphasized that “the
right to marry guaranteed by Article 12 refers to the traditional marriage
between persons of opposite biological sex” (#49) (my emphasis). It took the
view that restricting the right to marry to persons of opposite biological sex
cannot be said to have the effect of reducing the right to such an extent as to
impair the very essence of the right (#50). This reasoning was adopted without
question in Cossey (#43 to 47) and again in Sheffield (#66 to 68).
175. In Cossey, the ECHR made two further points.
First, in relation to the inability of a transsexual person to marry a man or a
woman, the court’s answer (which was based on the same reasoning) was this
(#45):
“As to the applicant’s (a male to female
post-operative transsexual) inability to marry a woman, this does not stem from
any legal impediment and in this respect it cannot be said that the right to
marry has been impaired as a consequence of the provisions of domestic law.
As to her inability to marry a man, the
criteria adopted by English law are in this respect in conformity with the
concept of marriage to which the right guaranteed by Article 12 refers.”
176. Secondly, the court recognized the
developments in some Contracting States in allowing the marriage of a
transsexual person. However, it found that such developments “cannot be said to
evidence any general abandonment of the traditional concept of marriage” (my
emphasis) and added that “in these circumstances, the Court does not consider
that it is open to it to take a new approach to the interpretation of Article
12” (#46) (my emphasis). Clearly, the traditional concept of marriage was
considered as a significant if not decisive factor.
Developments
before Goodwin
177. As noted above, in Cossey, the ECHR
recognized that there were developments in some member states regarding
transsexual marriages and in Sheffield, the court noticed “a clear trend” among
European countries moving towards acknowledgement of gender reassignment. It
also acknowledged that “transsexualism raises complex scientific, legal, moral
and social issues, in respect of which there is no generally shared approach
among the Contracting States” (#58). However, the court found no “common
approach as to how to address the repercussions which the legal recognition of
a change of sex may entail for other areas of law such as marriage.”(#57) In
both Cossey and Sheffield, the ECHR did not find the evidence sufficient to
justify a departure from its previous decisions. However, it is clear that the
developments in Europe had gathered momentum after these cases.
178. In the UK, prompted by Sheffield, the
Government took steps to review the problems facing transsexuals in the UK. In
April 1999, it set up an Interdepartmental Working Group on Transsexual People
(Working Group) to conduct a comprehensive study and review of the medical
condition, current practice in other countries and the state of the English
law. In April 2000, the Working Group produced a report which was presented to
Parliament and copies were sent to the public. It proposed different options
including the granting of full legal recognition of the reassigned gender
subject to certain criteria and procedures. It suggested that the Government
should seek public consultation before making any decision to move forward with
its proposals. Yet no further progress was made on these proposals and this had
drawn further criticisms from the Court of Appeal in Bellinger (#96).
179. The ECHR was understandably concerned with
the developments in its member states. These developments would reflect any
change in the social attitudes of European countries towards the institution of
marriage which must be an important factor in construing the nature of the
right to marry. As the court said in Goodwin, it “must have regard to the
changing conditions within the respondent State and within Contracting States
generally and respond, for example, to any evolving convergence as to the
standards to be achieved” and it was necessary “to maintain a dynamic and
evolutive approach” (#74).
The
decision in Goodwin
180. In Goodwin, the ECHR, having examined further
evidence of the developments in Europe (including the results of Liberty’s 1998
study) and the advancement of medical science, was persuaded that it should
change its previous view on both art 8 and art 12.
181. In that case, the applicant (a male to female
transsexual) complained that despite the warnings by the ECHR, the UK
Government had, in breach of her right to respect for private life under art 8,
failed to take constructive steps to address the problems she was facing. She
alleged that she had suffered discrimination, humiliating experiences and
abuses. It was held that the UK Government could no longer rely on the margin
of appreciation (#93).
182. It is necessary to examine the court’s
reasons for holding that there was a violation of the right to marry under art
12. It is important to note the following reasons (#100). First, it could no
longer be assumed that the determination of gender for the purpose of marriage
must be made by purely biological criteria. Second, there had been major social
changes in the institution of marriage. Third, there were dramatic changes
brought about by developments in medicine and science in the field of
transsexuality. Fourth, there was greater social acceptance by the medical
profession and the health authorities of transsexuals who could now assume a
proper social role. The court drew support in coming to this conclusion from
the removal of the reference to “man and woman” in art 9 of the newly adopted
Charter of Fundamental Rights which arguably might suggest that this was a
further step moving away from the traditional concept of marriage.
183. With regard to the first reason, I do not
think this is anything new: the Corbett approach has been criticized as
inadequate for many years. As to the third reason, I do not think medical
science in the field of transsexualism has made any significant development
since the decision in Sheffield in 1998 and in any event, the more recent
medical views are either inconclusive or uncertain.
184. In my view, it was the evidence (which was
accepted by the court) of the “major social change” in the institution of
marriage and the “greater social acceptance of transsexuals” in its member
states which had persuaded the ECHR to change its mind. Because of this major
social change in the institution of marriage, the court was no longer able to
place emphasis (as it did in previous cases) on the traditional concept of
marriage as a basis for holding there was no violation of the right to marry.
The greater social acceptance of transsexuals also reflected a significant
change in the social attitudes among European countries towards transsexuals.
This was seen as a material factor. It is also important to note that the court
attached considerable weight to the Report of the UK Working Group and its
recommendations for change. The UK was then obviously ready to move forward.
185. In the light of these major changes, the ECHR
was then able to conclude (contrary to what it said in Cossey quoted in
paragraph 175 above) that the national legislative limitation based on Corbett
resulting in the inability of a transsexual to marry did have the effect of
impairing the very essence of the right to marry:
“In that regard, it finds that it is
artificial to assert that post-operative transsexuals have not been deprived of
the right to marry as, according to law, they remain able to marry a person of
their former opposite sex. The applicant in this case lives as a woman, is in a
relationship with a man and would only wish to marry a man. She has no
possibility of doing so. In the Court’s view, she may therefore claim that the
very essence of her right to marry has been infringed.” (#101)
186. The above analysis clearly demonstrates that
the catalyst for the reversal of opinion by the ECHR was the clear evidence of
a shifting away from the traditional concept of marriage and a greater social
acceptance of transsexualism within Europe and in the UK. In the light of these
changes, it makes ample sense to construe art 12 as to confer upon transsexuals
the same right to marry as enjoyed by biological men and women which the court
had prior to that case consistently declined to extend to them.
Giving
extended meaning to art 37?
187. While the situations overseas are clearly
relevant and must be taken into account in the interpretation of art 37, one
must bear in mind that the culture and social conditions in each place are not
the same. For the purpose of the interpretation and application of the Basic
Law, I think the principal consideration must be the circumstances in Hong
Kong, just as the ECHR was more concerned with the situations among its member
states.
188. In my view, the present position in Hong Kong
is quite different from that in Europe and the UK when Goodwin was decided.
While there was evidence of the changing attitudes in both Europe and the UK, I
do not think there is sufficient evidence to show that the circumstances in
Hong Kong are such as to justify the Court giving an interpretation to art 37
to include transsexual men and women for the purpose of marriage. As pointed
out earlier, there is no evidence showing that for the purpose of marriage, the
ordinary meanings of man and woman in Hong Kong have changed to accommodate a
transsexual man and woman. More importantly, there is no evidence that the
social attitudes in Hong Kong towards the traditional concept of marriage and
the marriage institution have fundamentally altered. Nor is there evidence on
the degree of social acceptance of transsexualism.
189. It must be recalled that in Cossey, the ECHR
appeared to take the view that in the absence of evidence of a general
abandonment of the traditional concept of marriage, it was not open to it to
take a new approach to the interpretation of art 12 and in Sheffield, the
emergence of a “clear trend towards acknowledgement of gender reassignment” was
not considered by the ECHR to be sufficient to require a new interpretation of
that article. I am far from satisfied that the present situation in Hong Kong has
even reached that stage.
190. I would therefore agree with the conclusion
of the judge and the Court of Appeal in rejecting the argument on the
constitutional issue although I would hesitate in relying on the lack of
“consensus”. Evidence of changing circumstances, especially changes in the
social attitudes on controversial issues, is a very material factor in support
of an updated interpretation. It is not the same as evidence of a consensus.
Consensus is seldom relevant to interpretation and may never be achievable on
these issues.
191. The Court’s power to give an updated
interpretation to meet changing needs and circumstances must be exercised with
great caution, especially where such interpretation has far reaching
ramifications. I am not persuaded that a case has been made out in the present
case to give such an interpretation to art 37.
192. More fundamentally, giving recognition to the
reassigned gender for the purpose of marriage involves a change of social
policy. In my view, the court’s power to give an updated interpretation is to
react to changing circumstances and reflect changing social attitudes. The role
of the court is to give effect to a change in an existing social policy, not to
introduce any new social policy. The former is a judicial process but the
latter is a matter for the democratic process. Social policy issues should not
be decided by the court. As Lord Slynn said in Fitzpatrick v Sterling Housing
Association Ltd [2001]1 AC 27, 33:
“When considering social issues in particular,
judges must not substitute their own views to fill gaps. They must consider
whether the new facts ‘fall within the parliamentary intention’”.
193. Furthermore, recognition of transsexuals for
the purpose of marriage involves a major change in the law on the institution
of marriage which calls for a comprehensive study and wide public consultation;
it is only one aspect of the whole picture which needs to be investigated (Lord
Nicholls in Bellinger #37).
Need for
comprehensive review
194. I am mindful of the problems facing
transsexuals. If their reassigned gender is not recognized, this may cause them
great distress. The Government is already prepared to fund the treatment and
surgery of transsexuals and to issue new identity cards for those who have
acquired a new gender. There is no logical reason why full recognition should
not be extended to enable them to marry in their reassigned gender. I can see
the force of the reasoning of Ellis J in AG v Otahuhu Family Court [1995] 1
NZLR 603, 607:
“If
society allows such persons to undergo therapy and surgery in order to fulfill
that desire, then it ought also to allow such persons to function as fully as
possible in their reassigned sex, and this must include the capacity to marry.”
195. Equally forceful is the argument of Judge
Martens in his dissenting judgment in Cossey (#2.7)
“The principle which is basic in human
rights and which underlies the various specific rights spelled out in the
Convention is respect for human dignity and human freedom. Human dignity and
human freedom imply that a man should be free to shape himself and his fate in
the way that he deems best fits his personality. A transsexual does use those
very fundamental rights. He is prepared to shape himself and his fate. In doing
so he goes through long, dangerous and painful medical treatment to have his
sexual organs, as far as is humanly feasible, adapted to the sex he is
convinced he belongs to… He demands to be recognized and to be treated by the
law as a member of the sex he has won; he demands to be treated, without
discrimination, on the same footing as all other females, or, as the case may
be, males. This is a request which the law should refuse to grant only if it
truly has compelling reasons.”
196. However, as I have discussed above, the
consequence of legal recognition of transsexuals for the purpose of marriage is
more than making changes for individual transsexual persons; it involves making
changes to an important social institution.
197. In my view, there is a strong case for a
comprehensive review of the relevant legislation with a view to propose changes
in the law concerning the problems facing transsexuals as soon as practicable.
Mr
Justice Bokhary NPJ:
198. Can a person who has undergone sex
reassignment surgery marry as a person of the reassigned sex? In other words, can a post-operative
transsexual marry in the reassigned capacity?
I pause to mention that “sex reassignment” and “gender reassignment” are
interchangeable expressions. The
reassignment is of anatomic sex, not of what are sometimes referred to as
biological factors.
199. The appellant W has undergone male-to-female
sex reassignment surgery. She is in a
relationship with a man. They wish to
marry each other. So far, the courts
(being the High Court at first instance and the Court of Appeal on intermediate
appeal) have held that they cannot do so.
The question has now reached us on final appeal.
Transsexualism
and sex reassignment surgery as a treatment for it
200. Transsexualism is defined by the World Health
Organization as “a desire to live and be accepted as a member of the opposite
sex, usually accompanied by a sense of discomfort with, or inappropriateness
of, one’s anatomic sex, and a wish to have surgery and hormonal treatment to
make one’s body as congruent as possible with one’s preferred sex”. The evidence in this case shows that
transsexualism is regarded as a medical condition for which sex reassignment
surgery is an effective and appropriate treatment. And it was the medical
condition which W, born male, was in prior to undergoing male-to-female sex
reassignment surgery.
201. Following long periods of psychiatric and
social assessment at the Castle Peak Hospital and “real life experience” living
as a woman with professional supervision and therapy from that hospital, W
underwent sex reassignment surgery in July 2008. The surgery was performed at the Ruttonjee
& Tang Shiu Kin Hospitals which have issued a certificate stating that W’s
gender is now female. Having funded her
male-to-female sex reassignment surgery, the Hong Kong Government has issued to
her a replacement identity card in which her sex is stated to be female.
202. One of the things said by the respondent the
Registrar of Marriages is that it may not be easy to draw the line on what
amounts to sex reassignment. I accept
that there may be instances where the line may not be easy to draw. But I do not accept that the matter is
attended by any such uncertainty as forces one to treat the expression “sex
reassignment” as meaningless or prevents one from pronouncing on the effect in
law of sex reassignment. Without
attempting an exhaustive statement of what amounts to sex reassignment by
surgery, I hold that anyone who has been certified by an appropriate medical
authority as someone whose sex has been reassigned by surgery is to be seen in
the eyes of Hong Kong law as a person of the reassigned sex. W has been so certified as female.
Increasing
international trend towards recognition
203. The humanitarian considerations underlying
claims of persons in W’s position were acknowledged by Lord Nicholls of
Birkenhead in Bellinger v Bellinger [2003] 2 AC 467 at para. 34. There he spoke, insightfully as always, of
the suffering that drives them to endure prolonged and painful surgery for
relief from the turmoil in which they find themselves and of the acute distress
that non-recognition of their reassigned gender can cause them. There is, he went on to note at para. 35, an increasing international trend towards
recognizing gender reassignment and not condemning post-operative transsexual
people to live in an intermediate zone, not quite one gender or the other. In all of these matters, I respectfully echo
what Lord Nicholls has said. As to the
plight of transsexual people in Hong Kong and the tragedy which has overtaken
some of them, the valuable writings of Professor Robyn Emerton are there to be
read. This country China, of which Hong Kong is a part, will be fully within
the international trend to which Lord Nicholls referred if we in Hong Kong
uphold the right of a post-operative transsexual to marry in the reassigned
capacity. I say that because such a
right is recognized in the Mainland.
The
statutes
204. There are two statutes to be
interpreted. They are the Marriage
Ordinance, Cap. 181, and the Matrimonial Causes Ordinance, Cap. 179.
205. In so far as the Marriage Ordinance defines
“marriage”, it does so by s 40. That
section begins by saying, in subsection (1), that “[e]very marriage under the
Ordinance shall be a Christian marriage or the civil equivalent of a Christian
marriage”. And the section then goes on
to say, in subsection (2), that “[t]he expression ‘Christian marriage or the
civil equivalent of a Christian marriage’ implies a formal ceremony recognized
by the law as involving the voluntary union for life of one man and one woman
to the exclusion of all others”. A
religion having been mentioned, it should be stressed that the question before
the Court is one of secular law, and does not involve how things are regarded
according to any religion.
206. The form of a marriage ceremony before the
Registrar of Marriages, a deputy of that office-holder or a civil celebrant is
provided for by s 21 of the Marriage Ordinance.
This section refers to the “male party” and the “female party”.
207. Turning to the other statute calling for
interpretation, namely the Matrimonial Causes Ordinance, the provision to be
interpreted is s 20(1)(d) by which it is laid down that a marriage that takes
place after 30 June 1972 shall be void if “the parties are not respectively
male and female”.
208. Neither the Marriage Ordinance nor the
Matrimonial Causes Ordinance defines the words “man”, “woman”, “male” or
“female”.
Right to
marry
209. Our constitution guarantees to persons here
the right to marry and freedom from arbitrary or unlawful interference with
privacy. That is done by the rights and
freedoms that the Basic Law enumerates and therefore entrenches and those
contained in the Bill of Rights which art. 39 of the Basic Law entrenches by
incorporation. The right to marry is to
be found in art. 37 of the Basic Law and art. 19(2) of the Bill of Rights. Freedom from arbitrary or unlawful
interference with privacy is to be found in art. 14 of the Bill of Rights.
Is a
post-operative transsexual a person of the reassigned sex in the eyes of the
family legislation of Hong Kong?
210. Is a person who has undergone male-to-female
sex reassignment surgery a “woman” and a “female” in the eyes of the family
legislation of Hong Kong? W contends for
an answer in the affirmative. If that
answer is the right one, she can marry as she wishes. The respondent the Registrar of Marriages
contends for an answer in the negative, which is the answer given by the courts
below whose view W attacks and the Registrar of Marriages defends. Since the sex reassignment surgery which W
underwent was male-to-female, the foregoing way is the one in which the
question has been put in argument. But
the answer would of course be the same whether the sex reassignment surgery is
of the male-to-female kind or the female-to-male kind. So the question of statutory interpretation
involved comes, as fully stated, to this: is a post-operative transsexual a
person of the reassigned sex in the eyes of the family legislation of Hong
Kong?
If not
211. If the answer has to be “No”, then the
question of whether the legislation concerned is constitutional or
unconstitutional would arise for decision.
212. It is argued on W’s behalf, with the contrary
being argued on behalf of the Registrar of Marriages, that it would be
unconstitutional for Hong Kong legislation to prohibit a post-operative
transsexual from marrying in the reassigned capacity.
213. If W were to fail on the question of
statutory interpretation but succeed on the question as to constitutionality,
the legislation would have to be struck down.
In the event of a striking-down, the Court’s obvious course would be to
resort to the power of suspension identified, explained and exercised in Koo
Sze Yiu v. Chief Executive (2006) 9 HKCFAR 441.
Doing that the Court would suspend the striking-down order for an
appropriate period so as to afford an opportunity for the passing of corrective
legislation. Such legislation would
enable a person who has undergone sex reassignment surgery to marry in the
reassigned capacity.
214. None of that is to say that the constitution
only enters the picture if and when the question of statutory interpretation is
answered against W. The constitution is
a constant presence in the law. It can
crucially affect how legislation is interpreted. The courts will strive to give legislation
such a reading as would bring it in line with the constitution. It is only if it is impossible to do so that
the legislation concerned would be struck down, for striking-down is a course
of last resort.
Remedial
interpretation
215. If I had to confine the legislation concerned
to an ordinary rather than a remedial interpretation, I would find it difficult
to read the words of gender therein as including gender acquired by sex
reassignment surgery. And if a
non-inclusive reading would produce unconstitutionality, then the only possible
alternative to striking-down would be an inclusive reading. That alternative would be available if it can
be regarded as interpretation, albeit of a remedial kind, rather than something
which goes beyond interpretation of any kind.
216. In Goodwin v United Kingdom (2002) 35 EHRR
447 the European Court of Human Rights, upholding the right of a post-operative
transsexual to marry in the reassigned capacity, said (at para. 100) that
“a test of congruent biological factors can
no longer be decisive in denying legal recognition to the change of gender of a
post-operative transsexual. There are other important factors – the acceptance
of the condition of gender identity disorder by the medical professions and
health authorities within Contracting States, the provision of treatment
including surgery to assimilate the individual as closely as possible to the
gender in which they perceive that they properly belong and the assumption by
the transsexual of the social role of the assigned gender.”
That was said of course with reference to
the European Convention on Human Rights and the Contracting States
thereto. But I see the position in the
same way in regard to Hong Kong and our constitution.
217. The Registrar of Marriages says that
procreation is an important aspect of marriage.
So it is. It may well be by far
the most important aspect of marriage.
But the ability to procreate is not a condition of the right to
marry. Nor is the wish to procreate.
218. As to the question of consummation raised by
the Registrar of Marriages, I do not accept that what a post-operative
transsexual and a person of a sex opposite to the reassigned one are capable of
doing cannot amount to consummation as a matter of law. Consummation is nonetheless consummation even
though only made possible by surgery and incapable of leading to
procreation. Although I do not require
any authority to convince me of that, I should mention that I happen to find
myself in agreement with the whole of what the English Court of Appeal said in
SY v SY (orse W) [1963] P 37 including the part which was treated by Ormrod J
in Corbett v Corbett (orse Ashley) [1971] P 83 as unpersuasive dicta. Whether or not what the learned judge
considered dicta was in truth, as Lord Pannick QC for W submitted, an
alternative ratio does not matter to my decision.
Protection
of minorities
219. The Registrar of Marriages also raises the
question of societal consensus in Hong Kong, saying that there is no evidence
before the Court of any such consensus in favour of a post-operative
transsexual marrying in the reassigned capacity. That is so, but nor is there any evidence of
any such consensus against such a course.
On a matter like this, it is doubtful that gathering and presenting
reliable evidence of any societal consensus one way or the other would be at
all easy.
220. Moreover, it is to be borne in mind that the
present exercise is not to be confused with developing the law to meet new
expectations. What is involved is a
constitutionally guaranteed human right. One of the functions – perhaps by far
the most important one – of constitutionally guaranteed human rights is to
protect minorities. Why is there any
need to guarantee a right to marry?
After all, no society is likely to put impediments in the way of the
majority entering into marriages as they like.
The greatest and most urgent need for constitutional protection is apt
to be found among those who form a minority, especially a misunderstood minority.
Striking
down and declarations of incompatibility contrasted
221. In Bellinger v Bellinger it was by way of a
declaration of incompatibility rather than by way of statutory interpretation
that the House of Lords came to the aid of post-operative transsexuals. Rather than reading the legislation there
concerned to permit a post-operative transsexual to marry in the reassigned
capacity, their Lordships declared that the legislation, by reason of its not
permitting that, was incompatible with the right to marry and the right to
respect for private life. For at least
two reasons, it is perfectly understandable why their Lordships intervened by
way of a declaration of incompatibility rather than by way of statutory
interpretation (even though s 3(1) of the Human Rights Act 1998 provides that
“[s]o far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with
Convention rights”).
222. First of all, the British Government had
already announced its intention to bring forward primary legislation which
would allow transsexual people who can demonstrate that they have taken
decisive steps towards living fully and permanently in the acquired gender to
marry in that gender. This announcement
was said by Lord Nicholls (at para. 26) to have “an important bearing on the
outcome” of the appeal.
223. Secondly, a declaration of incompatibility
under the Human Rights Act is by no means exactly the same thing as a
striking-down order under an entrenched constitution. And as it seems to me, a remedial
interpretation can, at least sometimes, amount to a considerably more radical
course than a declaration of incompatibility.
I say so for these reasons. A
declaration of incompatibility may well result in corrective legislation.
Indeed, it may result in such legislation very quickly. But, unlike a striking-down order, it does not nullify the legislation against which
it was made. Nor does it impose any
legal duty to introduce or pass corrective legislation at all let alone
quickly. By a declaration of
incompatibility the judiciary alerts the political branches of government to
legislation which cannot be given a reading compatible with Convention rights,
but ultimately still leaves the matter in the hands of those branches of
government. A striking-down order, on
the other hand, is truly a course of last resort in the fullest sense. It is a more radical course than a remedial
interpretation – even where a period of Koo suspension is granted to afford an
opportunity for corrective legislation.
Right to
marry in the reassigned capacity
224. Neither the appellant W, the respondent the
Registrar of Marriages nor the intervener the International Commission of
Jurists has addressed us on the question of same-sex marriage. I proceed in this case on the footing that
the right to marry guaranteed by our constitution is a right to marry a person
of the opposite sex. Such a right is undoubtedly a human right. To say that it has no application to
post-operative transsexuals is to deny their humanity. So it does apply to them. In what way?
To say that what it guarantees is a right to marry in the
pre-reassignment capacity would run counter to the purpose of sex reassignment
surgery as a treatment for transsexualism.
It is inconceivable that a human right would operate in such an inhumane
way. What is left? Quite simply and obviously, the right to
marry in the reassigned capacity.
Yes, by
way of remedial interpretation
225. I hold that the right to marry guaranteed by
our constitution extends to the right of a post-operative transsexual to marry
in the reassigned capacity. This means,
without any need to rely on freedom from arbitrary or unlawful interference
with privacy, that the legislation concerned would be unconstitutional unless
the words of gender therein are read to include gender acquired by sex
reassignment surgery. If those words can
be so read, they should be so read. In
my view, they can be so read. And, by
way of remedial interpretation, I so read them.
Conclusion
226. In the result, holding that the words of
gender in the legislation concerned include gender acquired by sex reassignment
surgery and that such legislation therefore permits a post-operative
transsexual to marry in the reassigned capacity, I would allow the appeal in
the terms proposed by Chief Justice Ma and Mr Justice Ribeiro PJ. My view of the law, while strongly held, does
not involve any disrespect for the opposite view ably advanced by Ms Monica
Carss-Frisk QC for the Registrar of Marriages and accepted by so good a judge
as Mr Justice Chan PJ. And I certainly
think that much room for legislative reform still remains.
227. I wish to acknowledge the very considerable
assistance which I have derived from the arguments prepared and presented by
counsel and solicitors for W and the Registrar of Marriages respectively, and
from the written submissions provided by the International Commission of
Jurists.
228. Finally, I wish to make it clear that I have
used the expression “post-operative transsexual” because it is the one used by
courts here and abroad when dealing with cases like this one. But that is not to say that a person who has
undergone sex reassignment surgery as a treatment for transsexualism is still
to be regarded as a transsexual. In
truth, such a person is a person of the sex brought about by such treatment.
Lord
Hoffmann NPJ:
229. I agree with the joint judgment of the Chief
Justice and Mr Justice Ribeiro PJ.
Chief
Justice:
230. By a majority, Mr Justice Chan PJ dissenting,
the appeal is allowed. In accordance
with what is stated in Section H of the Joint Judgment of myself and Mr Justice
Ribeiro PJ, the precise orders to be made by the Court will be finalised after
receiving the parties’ further submissions as provided for in paragraph 149 of
that Judgment.
(Geoffrey
Ma)
Chief
Justice
(Patrick
Chan)
Permanent
Judge
(RAV
Ribeiro)
Permanent
Judge
(Kemal
Bokhary)
Non-Permanent
Judge
(Lord
Hoffmann)
Non-Permanent
Judge
Lord
Pannick QC, Mr Hectar Pun and Mr Earl Deng instructed by Vidler & Co and
assigned by the Legal Aid Department for the appellant
Ms
Monica Carss-Frisk QC, Ms Lisa KY Wong SC and Mr Stewart K.M. Wong SC
instructed by the Department of Justice for the respondent
International
Commission of Jurists, the Intervener, submissions on paper
[1] Andrew Cheung J (now Chief Judge of the High
Court), HCAL 120/2009 (5 October 2010).
[2] Tang VP, Hartmann and Fok JJA, CACV
266/2010 (25 November 2011).
[3] With Mr Hectar Pun and Mr Earl Deng.
[4] International Statistical Classification
of Disease and Related Health Problems (version 10), F64.
[5] Associate Consultant in Psychiatry who
has had extensive experience treating transsexuals in Kwai Chung Hospital, a
hospital operated by the Hospital Authority, affirmation made on 28 January
2010.
[6] We are not concerned in this judgment with
addressing the rare condition of persons born inter-sexed, that is, with both
male and female biological features. See
W v W (Physical Inter-sex) [2001] Fam 111.
[7] Associate Dean, Faculty of Education,
University of Hong Kong, who has researched and taught in the field of
transsexualism since the year 2000 and also provided clinical services to
transsexuals in Hong Kong, affidavit sworn on 19 July 2010.
[8] In an influential dissenting judgment in
Cossey v United Kingdom (1990) 13 EHRR 622, Judge Martens pointed out that:
“... (medical) experts in this field have time and again stated that for a
transsexual the ‘rebirth’ he seeks to achieve with the assistance of medical
science is only successfully completed when his newly acquired sexual identity
is fully and in all respects recognised by law.
This urge for full legal recognition is part of the transsexual’s
plight. That explains why so many transsexuals, after having suffered the
medical ordeals they have to endure, still muster the courage to start and keep
up the often long and humiliating fight for a new legal identity.” (At §2.4)
[9] Research Assistant Professor, Faculty of
Law, University of Hong Kong.
[10]
Robyn Emerton, “Time For Change – A Call for the Legal Recognition of
Transsexual and Other Transgender Persons in Hong Kong” (2004) 34 HKLJ 515 at
516-517. See also Prof Emerton’s other
articles on transsexuals in Hong Kong: “Neither Here nor There: The Current
Status of Transsexual and Other Transgender Persons Under Hong Kong Law” (2004)
34 HKLJ 245; and “Finding a voice, fighting for rights: the emergence of the
transgender movement in Hong Kong”, (2006) Inter Asia Cultural Studies, Vol 7,
No 2.
[11]
Consultant surgeon and Chief of Surgical Service of Ruttonjee Hospital of the
Hospital Authority, who has been performing sex reassignment surgery since
1987, affirmation made on 28 January 2010.
[12]
Other surgical procedures may be involved, for instance, the shortening of
vocal chords in the case of a male-to-female transsexual, see, eg, Goodwin v UK
(2002) 35 EHRR 18 at §13.
[13]
Prof Emerton, op cit, (2004) 34 HKLJ 515 at 516; Prof Winter, “Country Report:
Hong Kong social and cultural issues”,
http://web.hku.hk/~sjwinter/TransgenderASIA/.
[14] Cap
177.
[15]
Pursuant to regulation 14(1) of the Registration of Persons Regulations (Cap
177).
[16]
Under the Hong Kong Special Administrative Region Passports Ordinance (Cap
539), section 5.
[17]
Affirmation of Yu Kin Keung, Assistant Secretary for Security (28 January 2010)
§16.
[18] Who
were permitted to lodge written submissions for the purposes of this
appeal. They had lodged submissions
before Andrew Cheung J dated 5 August 2010.
[19]
(2002) 35 EHRR 18.
[20]
With Ms Lisa K Y Wong SC and Mr Steward K M Wong SC.
[21] The
GRA 2004 introduces a certification scheme for the legal recognition of changed
genders. It permits applications for a
gender recognition certificate on the basis of having changed gender under the
law of a country or territory outside the United Kingdom approved by the
Secretary of State. The list identifies
the countries which have received approval pursuant to the Gender Recognition
(Approved Countries and Territories) Order 2005, SI 2005 No 874.
[22] Cap
181.
[23] Cap
179.
[24] MCO,
section 20(2)(a): “A marriage which takes place after 30 Jun 1972 shall,
subject to subsection (3) [which is not presently material], be voidable on any
of the following grounds only – that the marriage has not been consummated
owing to the incapacity of either party to consummate it”.
[25] It
appears that the first published case of SRS involved a man in Denmark in
1951. See Gender Identity Team, Queen
Mary Hospital, Transsexualism: Service and Problems in Hong Kong, The Hong Kong
Practitioner, 1989.
[26]
[1971] P 83.
[27]
(1866) LR 1 P & D 130 at 133, cited to Ormrod J but not expressly referred
to by him.
[28] At
106.
[29] At
105-106.
[30]
Bellinger v Bellinger [2003] 2 AC 467 at §46.
[31] At
100.
[32]
Ibid.
[33] At
106.
[34]
Ibid.
[35]
[2003] 2 AC 467 at §11, although it was recognized that Corbett had been
criticised by scientists and courts alike: §§13-17 and 18.
[36]
[1948] AC 274 at 286.
[37]
[1947] AC 628 at 633.
[38] At
109.
[39]
Ibid.
[40] At
109-110.
[41] By
the combined effect of section 7(2) of the 1971 act and section 40(1)(a) of the
Matrimonial Causes Act 1965.
[42]
[2002] Fam 150 at §16 per the majority .
[43]
[2007] Fam 1 at §29.
[44]
(2003) 172 FLR 300 at §292.
[45]
Judge at §§117-118.
[46]
Court of Appeal §54.
[47]
Court of Appeal §55.
[48] Eg,
Secretary, Dept of Social Security v “SRA” (1993) 43 FCR 299; and Bellinger v
Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 at §62.
[49] At
106.
[50] Eg,
AG v Otahuhu Family Court [1995] 1 NZLR 603 at 612; AG (CTH) v “Kevin and
Jennifer” (2003) 172 FLR 300 at §§153, 170 and 293.
[51]
Respondent’s Case §42(2)(d).
[52] 355
NYS 2d 712 (1974) at 717 per Louis B Heller J: “That the law provides that
physical incapacity for sexual relationship is ground for annulling a marriage
sufficiently indicates the public policy that the marriage relationship exists
with the result and for the purpose of begetting offspring (Mirizio v Mirizio,
242 N Y 74, 81).”
[53] R v
R (Orse F) [1952] 1 All ER 1194.
[54]
Baxter v Baxter [1948] AC 274.
[55] S Y
v S Y (otherwise W) [1963] P 37.
[56]
Bellinger v Bellinger [2003] 2 AC 467 at §37.
[57]
(2006) 9 HKCFAR 574 at §§61-79.
[58]
(2008) 11 HKCFAR 91 at §§46-47.
[59]
Goodwin v UK (2002) 35 EHRR 18 at §98; Schalk and Kopf v Austria (2011) 53 EHRR
20 at §56.
[60]
Goodwin v UK (2002) 35 EHRR 18 at §99.
See also Rees v United Kingdom (1986) 9 EHRR 56 at §50; Sheffield and
Horsham v UK (1998) 27 EHRR 163 at §66 and Schalk and Kopf v Austria (2011) 53
EHRR 20 at §49.
[61]
[2009] AC 287 at §16
[62] At
§13.
[63]
(1986) 9 EHRR 56.
[64] At
§49.
[65]
Under Article 8 (the right to respect for private life) and Article 12 (the
right to marry).
[66] At
§37.
[67]
(1990) 13 EHRR 622.
[68] At
§44.
[69] At
§45.
[70]
Ibid.
[71]
(1998) 27 EHRR 163.
[72] At
§57.
[73]
(1998) 27 EHRR 163 at §43.
[74]
(2002) 35 EHRR 18.
[75] At
§96.
[76] At
§98.
[77] At
§82.
[78] At
§100. The Court also pointed to the
absence of a reference to men and women in wording of the relevant provisions
of the then recently adopted European Union Charter of Fundamental Rights.
[79] At
§85.
[80] At
§101.
[81] At
§103.
[82] At
§91.
[83]
Ibid.
[84]
Bellinger v Bellinger [2003] 2 AC 467 at §27.
[85] At
§§53 and 55.
[86] Ng
Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at 28.
[87]
(1979-80) 2 EHRR 1 at §31.
[88]
(2011) 53 EHRR 13 at §234.
[89]
(1990) 13 EHRR 622 at §35.
[90]
Section E.1 above.
[91]
Bellinger v Bellinger [2002] Fam 150 at §128.
[92]
(2003) 172 FLR 300.
[93] At
§152.
[94] At
§153.
[95] 355
NYS 2d 712 (1974) at 717.
[96] At
98.
[97] In
the United Kingdom, by 1974, SRS was available on the National Health Service:
Rees v United Kingdom (1986) 9 EHRR 56 at §14.
[98]
Judge at §34.
[99] SA 308 at 314, in a passage
highlighted in the Registrar’s written case.
[100] Goodwin v UK (2002) 35 EHRR 18 at §82.
[101] [2002] Fam 150 at §132.
[102]
Sitting in the Australian Federal Court, General Division, NSW District
Registry, in Secretary, Dept of Social Security v “SRA” (1993) 43 FCR 299 at
325.
[103] [1971] P83 at 104.
[104]
Bellinger v Bellinger [2003] 2 AC 467 at §34.
[105] Goodwin v UK (2002) 35 EHRR 18 at §81.
[106] (2003) 172 FLR 300 at §295.
[107] Such evidence was not provided or accepted
either in the present case or in most of the other authorities cited. However, the point made is still apposite.
[108] And Article 8.
[109] Section F.4.
[110] At §100.
The Court also pointed to the absence of a reference to men and women in
wording of the relevant provisions of the then recently adopted European Union
Charter of Fundamental Rights.
[111] Section F.3.
[112] Goodwin v UK (2002) 35 EHRR 18 at §99; Rees
v United Kingdom (1986) 9 EHRR 56 at §50; Sheffield and Horsham v UK (1998) 27
EHRR 163 at §66; Schalk and Kopf v Austria (2011) 53 EHRR 20 at §49; and
Bellinger v Bellinger [2009] AC 287 at §16.
[113] At §101.
[114] [1995] 1 NZLR 603 at 607.
[115] Secretary, Dept of Social Security v “SRA”
(1993) 43 FCR 299 at 317.
[116] [2008] AC 153 at §78.
[117] John L Murray, Chief Justice of Ireland,
“Consensus: concordance, or hegemony of the majority?” in Dialogue Between
Judges 2008, Strasbourg, European Court of Human Rights.
[118] See Section F.2.
[119] As to remedies, see also section 6 of the
Hong Kong Bill of Rights Ordinance (Cap 383).
[120] (1999) 2 HKCFAR 4 at 25.
[121] The power to suspend was acknowledged in Koo
Sze Yiu v Chief Executive of the HKSAR (2006) 9 HKCFAR 441.
[122] At §90.
[123] At §35.
[124] Eg, Public Conveniences (Conduct and
Behaviour) Regulations (Cap 132) reg 7; Public Swimming Pools Regulation (Cap
132), reg 7.
[125] “Splitting the Difference: Transsexuals and
European Human Rights Law” (lecture given to Anglo-German Family Law Judicial
Conference in Edinburgh, September 2000), §50, cited in Bellinger v Bellinger
[2002] Fam 150 at §159.
[126] (1993) 43 FCR 299 at 305, per Black CJ:
“...I consider that whilst a pre-operative male-to-female transsexual cannot
come within the category of eligibility for a wife's pension under the Act, the
respondent in this case would have come within that category had she
successfully undergone the surgery that has been recommended for her.”
[127] Bellinger v Bellinger [2002] Fam 150 at
§103.
[128] 355 A 2d 204 (1976) Superior Court of New
Jersey, Appellate Division, Handler JAD.
[129] Citing the example of B v B 78 Misc.2d 112,
355 N.Y.S.2d 712 (Sup.Ct.1974).
[130] [1995] 1 NZLR 603 at 616-617; in submissions
of counsel generally adopted by the Court (at 604).
[131] Bellinger v Bellinger [2003] 2 AC 467 at
§41.
[132] Ibid at §26.
[133] As opposed to an interim certificate
referred to in Section H.5 below.
[134] GRA 2004, section 9.
[135] Section 23.
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