W v The Registrar of Marriages

In W v The Registrar of Marriages (FACV 4/2012), a post-operative male-to-female transsexual challenged

the Registrar of Marriages’ refusal to allow her to register a marriage with her male partner. Insofar as
she was prohibited from marrying a man (as opposed to a woman), the applicant argued that the
Registrar had misinterpreted the words “man” and “woman” and “male” and “female” in section
20(1)(d) of the Matrimonial Causes Ordinance (Cap 179) (MCO) and section 40 of the Marriage
Ordinance (Cap 181) (MO), or, alternatively, that those provisions were inconsistent with Article 37 of the
Basic Law and Article 19(2) of the Hong Kong Bill of Rights guaranteeing the right to marry. The Court of
First Instance and the Court of Appeal ruled in favour of the Registrar of Marriages, holding that on a
proper interpretation of the relevant provisions, “man” and “woman” and “male” and “female” did not
cover post-operative transsexuals. Rather, their sex was to be determined for the purposes of those
provisions according to their biological sex at birth. The courts further concluded that the relevant
provisions did not infringe the right to marry guaranteed under Article 37 of the Basic Law and Article
19(2) of the Hong Kong Bill of Rights.

Upon further appeal by the applicant, the Court of Final Appeal by its judgment dated 13 May 2013
unanimously upheld the lower courts’ ruling on the construction ground, but by a majority allowed the
appeal on the constitutional ground. By order dated 16 July 2013, the Court of Final Appeal granted
declarations that (i) section 20(1)(d) of the MCO and section 40 of the MO 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 whose gender has been certified by an appropriate medical authority to have
changed as a result of sex reassignment surgery; (ii) the applicant is in law entitled to be included as “a
woman” within the aforesaid provisions and is accordingly eligible to marry a man; and (iii) the said
declarations be suspended for 12 months from the date of the said order in order to allow time for the
Government and the legislature to put in place a constitutionally compliant scheme which is capable of
addressing the position of the broader classes of persons potentially affected by the judgment.

Background[]
The applicant of the case was only identified as W and assigned male at birth. However, W was
subsequently diagnosed with gender dysphoria. W started receiving medical treatments since 2005.
After having successfully undergone sex reassignment surgery in 2008, she was issued with a new
identity card and a passport reflecting her sex as female. In November 2008, W hired a lawyer to
confirm with the Registry of Marriages whether or not she could marry her boyfriend. W was denied.

The Registrar denied W to marry her boyfriend because her assigned sex was recorded as male on
her birth certificate. Hong Kong does not allow same sex marriage. The Government contended it
only accepted one's sex as originally assigned on the birth certificate for marriages purposes,
regardless of one's current identity card or passport.

Subsequently, W believed the Registrar's refusal had violated her constitutional right to marry as well
as her right to privacy and brought the case to court for judicial review. In the Court of First Instance,
Justice Andrew Cheung (as Cheung PJ then was) upheld the Registrar's decision, and the Court of
Appeal dismissed an appeal; thus W appealed her case to the Court of Final Appeal. On 13 May
2013, the Court of Final Appeal overturned the Register's decision and held that W could marry her
boyfriend. The Court of Final Appeal, however, issued a stay to put the decision of letting W to marry
her boyfriend on hold for a year to allow time for the Government to amend the law.

(Court of Final Appeal judgment paragraphs 2, 19, 20, 58, 60)

Important facts
The Court of Final Appeal observed the following facts.

• Transsexualism (gender identity disorder and gender dysphoria) is a medical condition

identified by the Hong Kong government as well as WHO under ICD-10.
• In the medical field, one's sexual identity consists of a list of both biological and
psychological identity
• The only accepted therapy for transsexualism involves a series of hormonal treatments
as well as sex reassignment surgery.
• Sex reassignment surgery is irreversible, publicly funded, and managed by the Hospital
Authority.
• The Hospital Authority will issue a 'sex changed certificate' after sex reassignment
surgery.
• The Immigration Department will issue a new identity card and a passport to individuals
with 'sex changed certificates' issued by the Hospital Authority or by overseas
government agencies.
(Court of Final Appeal judgement paragraphs 5, 6, 11, 14-17)

Major issues
The Court of Final Appeal was presented with two issues to solve in the case:

• Issue 1
Has the Registrar for Marriages misunderstood the Marriage Ordinance in coming to the conclusion
precluding Ms W from marrying her male partner?

• Issue 2
If the Registrar was correct, is the Marriage Ordinance as it is understood compatible with the right
to marry or to privacy guaranteed by the Basic Law and the Bill of Rights Ordinance?

(Court of Final Appeal judgement paragraph 4)

Related statues and precedent cases

Provisions Title Script

(1) Every marriage under this Ordinance shall be a

Marriages under this
Marriage Christian marriage or the civil equivalent of a Christian
Ordinance are
Ordinance marriage.
Christian or equivalent
Section 40[2]
thereto
(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.

Matrimonial (1) A marriage which takes place after 30 June 1972

Causes Grounds for decree of shall be void on any of the following grounds only: ...
Ordinance nullity (d) that the parties are not respectively male and
Section 20[3] female.
Fundamental Rights The freedom of marriage of Hong Kong residents and
Basic Law
and Duties of the their right to raise a family freely shall be protected by
Article 37[4]
Residents law.
Hong Kong Bill
of Rights Rights in respect of (2) The right of men and women of marriageable age
Ordinance marriage and family to marry and to found a family shall be recognized.
Article 19[5]
European
Men and women of marriageable age have the right
Convention on
Right to marry to marry and to found a family, according to the
Human Rights
national laws governing the exercise of this right.
Article 12

Precedent
Referred to in Points Referred to in Precedent
Current Case

Hyde v Hyde[6] • Christian marriage is defined as the voluntary union for life of one
man and one woman to the exclusion of all others
(decided in (judgement paragraph 29)
1866)

• Family is built on the institution of marriage

Corbett v • The ability to engage in heterosexual intercourse is essential to
Corbett marriage because of procreation
(decided in • When determining one's sex for marriage purposes, only biological
1971) factors at birth is appropriate because of procreation.
(judgement paragraphs 28, 30, 31-32, 34-35)

• The right to found a family was not a condition of the right to marry
• The principal unchanging biological aspect of gender identity is the
chromosomal element. It is not apparent to the Court that the
Goodwin v UK[7] chromosomal element, amongst all the others, must inevitably take
on decisive significance for the purposes of legal attribution of
(decided in gender identity for transsexuals.
2002) • The 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.
 • The applicant 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.
(judgement paragraph 77)

Arguments and reasoning

Issue 1
The following table lists out the government's arguments to demonstrate that the Registrar did not
misunderstand the meaning of the words ‘woman’ and ‘female’ in the two Ordinances as well as the
Court's reasoning related to each argument.

Government's Arguments Court of Final Appeal's Reasoning

Hong Kong defines marriage as in Corbett,

which derived the definition from Hyde,
based on the Christian definition of ‘the
— voluntary union for life of one man and one
woman to the exclusion of all others’.

(judgement paragraphs 25, 29, 30 & 48)

The Registrar should use Corbett’s criteria to

determine W’s sex because the Ordinances were Agreed and accepted
enacted in light of that case. (judgement paragraph 48)

(judgement paragraph 48)

Using Corbett, the Register did correctly construe

the Ordinances and accordingly refuse W to marry Agreed and accepted
her boyfriend. (judgement paragraph 49)

(judgement paragraph 49)

The ordinary and dictionary meaning of the word
‘women’ does not include transgender women; and
the Ordinances should be so construed. Also,
normally, if there should be any updates of
meanings (of the word ‘woman’), the legislature will
always do so. Yet, it has not and there is no
evidence for such need.
(judgement paragraphs 50-53)
When construing a legal provision, the
ordinary meaning of a word should not
obscure the context and purpose of that
provision. Since the Court construed the law
from the perspective of the legislative
intention in this case, the Court chose not to
address this argument.
(judgement paragraphs 50-53)

Since non-consummation is a legitimate reason to Consummation is defined as full sexual

void a marriage, it shows that procreation is an penetration even without any emission or
important characteristic and purpose of marriage. conception. Because transgender women do
 (judgement paragraphs 54-55)
have the ability to have sex, the Court found
this argument irrelevant to this case.
(judgement paragraphs 54-55)

If construing the law in a way other than

Since the Court found the Registrar had
applying Corbett, it would involve a lot of
correctly construed and applied the law, the
ramifications. Thus, it should be left to the
Court refused to address this argument.
legislature to decide.
(judgement paragraphs 56-57)
(judgement paragraphs 56-57)

Issue 2
In the attempt to resolve Issue 2 of whether the Registrar's understanding of the Ordinances had
been unconstitutional as infringing the rights to marry and to privacy, the Court broke down the
analysis as in the following table and so found them unconstitutional.

Government's Arguments Court of Final Appeal's Reasoning

Instead of treating the right to marry as an absolute

right, the Court saw it as a strong right which
means that it may be subject to other legal
— regulation. The Court, however, emphasised that
such legal regulation must not do so in a way that
would impair the essence of the right to marry.

(judgement paragraphs 65-68)

In construing the right to marry in Article 37 of the

Basic Law and in Article 19(2) of the Bill of Rights
Ordinance, the Court accepted that the two articles
were the same in substance in different phrasing.
The Court also noted that both of these articles
— guaranteed the right to marry and the right to found
a family with an emphasis that the second
component of founding a family was not a
prerequisite for the right to marry.
(judgement paragraphs 63-64, 77)

The Court noted the European Court of Human

Rights’ decision in Goodwin, with the House of
Lords’ approval, overturned Corbett. The Court
quoted that ECtHR had found ‘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

The Government argued that the framers of
the Basic Law and the Bill of Rights
Ordinance, incorporating ICCPR, implicitly
adopted the Corbett’s definition in terms of
marriage and one's sex as well when
drafting them. The Court should thus so
construe.
(judgement paragraphs 81-82)
The Government repeated the argument
made earlier that any way of construing the
Ordinances other that using Corbett should
be left to the legislature to decide.
(judgement paragraph 83)
The Government argued that the Court
should not rule until there had been a
general consensus allowing transsexuals to
marry among Hong Kongers.
(judgement paragraph 113)
Holding
• Issue 1
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’.
(judgement paragraphs 77-79)
The Court held a different view and reasoned that
the Basic Law and the Bill of Rights Ordinance
were living instruments intended to meet ever
changing needs and circumstances; even the
framers had had Corbett’s definitions in terms of
marriage and one’s sex in their minds when drafting
the constitutional documents, the changes in
societal perception of marriage, particularly the
abandonment of the concept of procreation being
essential to marriage, called for re-examination of
the applicability of Corbett.
(judgement paragraphs 84-89)
The Court observed evidence showing the advance
in medical knowledge of and the change in social
attitudes towards transsexualism. And such
advancement demonstrated the inadequacy
of Corbett’s definitions. Instead of considering only
biological factors, it should take into account of all
aspects, including biological, psychological, and
social elements, when assessing one’s sex. This
inadequacy unconstitutionally impaired transgender
people’s right to marry. The Court was thus
constitutionally compelled to act.
(judgement paragraph 61-62, 90-111)
The Court refused to accept such rationale and
explained that the ‘reliance on the absence of
majority consensus as a reason for rejecting a
minority’s claim is inimical in principle to
fundamental rights’. The Court also emphasised
that ‘it is one thing to have regard to such changes
[in societal opinion] 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.’
(judgement paragraphs 114-116)
The Court of Final Appeal held that the Registrar had been correct in construing the Ordinances
using Corbett’s definition of a person’s sex.

(judgement paragraph 117)

• Issue 2
The Court of Final Appeal held that Corbett’s definition of one’s sex was inadequate and too
restrictive to only include biological factors and resulted in unconstitutional infringement of W’s right
to marry guaranteed by Article 37 of the Basic Law and by Article 19(2) of the Bill of Rights.

(judgement paragraphs 118-119)

Court's orders[]
Judicial remedies[]
The Court of Final Appeal issued the following orders:

• A declaration that W is entitled to be included in the meaning of the word ‘woman’ in

Section 20(1)(d) of the Matrimonial Causes Ordinance and in Section 40 of the Marriage
Ordinance to marry a man.
• A declaration that the meaning of the words of ‘woman’ and ‘female’ of the Matrimonial
Causes Ordinance and of the Marriage Ordinance should include post-operative male-
to-female transsexuals with certificates issued by medical authorities testifying their
change of gender as a result of sex reassignment surgery.
• A stay for a year for the two declarations going into effect.