A transsexual woman in Hong Kong won a groundbreaking court appeal yesterday allowing her to marry her boyfriend and forcing the government to re-write the territory’s marriage laws.
The woman in her 30s, known in the Court of Final Appeal as “W” under anonymity rules, successfully overturned earlier verdicts that said marriage is only allowed between couples who were of the opposite sex at birth.
W, who underwent sex realignment surgery more than five years ago, argued that her post-operative gender is recognized by the law and that previous rulings violated her constitutional rights.
The territory’s Registrar of Marriages had said that she could not wed her boyfriend because her birth certificate — which cannot be altered under Hong Kong law — said she was male.
“It is contrary to principle to focus merely on biological features fixed at the time of birth,” the court said in a written judgement by the panel of five judges.
It added that existing laws “impair the very essence of W’s right to marry.”
The court said the nature of marriage as a social institution had “undergone far-reaching changes” in multi-cultural present-day Hong Kong.
“The effect of this decision is that W will be allowed to marry, and should be allowed to marry her boyfriend,” lawyer for W, Michael Vidler, told reporters.
“This is a case about sexual minorities being recognized and that their rights are just as important as everyone else’s,” Vidler said of what he called a “landmark decision.”
W, who was not in court yesterday, said in a statement read by Vidler: “I have lived my life as a woman and been treated as a woman in all respects except as regards to my right to marry. This decision rights that wrong.”
“I am very happy that the court of appeal now recognizes my desire to marry my boyfriend one day and that that desire is no different to that of any other women who seek the same here in Hong Kong,” W said.
“This is a victory for all women in Hong Kong,” she said.
The court will suspend the decision for 12 months allowing time for the government to amend the territory’s marriage laws.
Human rights activists welcomed the ruling saying that it was a step in the right direction in recognizing the rights of people from sexual minorities. The judiciary’s decision may affect the willingness of the government to “accept changes in light of modern gender issues or rights of minorities,” Hong Kong Human Rights Monitor director Law Yuk-kai (羅沃啟) said.
The decision “enables a person of sexual minority to recover and enjoy the rights to form a family at their own free will,” he said.