Registrar Of Marriage, Hong Kong Case Study 2022

Case Study
W v Registrar Of Marriage, Hong Kong
10/19/2019

Contents
Introduction...........................................................................................................................................2
Facts observed in the processing of the case..........................................................................................2
Statutory provision in the case...............................................................................................................3
Legal issues in the case..........................................................................................................................3
Appellate history of the case..................................................................................................................5
Outcomes of the case.............................................................................................................................6
Judicial Remedies..................................................................................................................................6
Ratio Decendi........................................................................................................................................7
How did the court of final appeal interpret the relevant legislation?......................................................7
Applying and distinguishing the cited authorities..................................................................................8
What use did the court of final appeal make of non-Hong Kong Authorities?......................................9
Impact of the decision in the case on Hong Kong law...........................................................................9
Impact of the decision on the public....................................................................................................11
Conclusion...........................................................................................................................................11
Bibliography........................................................................................................................................13
1

Introduction
In Hong-Kong till the present time, constitution, legislation and even society doesn’t identify
the place of homosexuality or same-sex relationship but after 150 years of the struggle to
people succeed to get the Lesbian, Gay, Bisexual and Transgender (LGBT)1 as their identity
and government given as the legal identity and invested the equal right to every one without
any discrimination on the basis of gender. This assignment will discuss the detailed case
study of W (as identified in the petition in the court of Appeal, Hong Kong) whose regular
struggle changed the legal and religious identity of marriage in Hong Kong.
Facts observed in the processing of the case
 In the area of medical science sexual identities is not identified only on the biological
features of one’s born but also identify the psychological identity as the legal and
honoured identity.
 Concept of the Transsexual is a medical condition and this condition is accepted by
Hong Kong as well.
 Surgical process of sex reassignment surgery is irreversible process and approved by
the hospital authority.
 A legal and valid certificate is necessary to be issued by the hospital authority and this
certificate has the legal identity in the government.
1 Kelley Loper, ‘W v Registrar of Marriages and the Right to Equality in Hong Kong’ (2011) 41 Hong
Kong LJ 89.
2

 Hong Kong government has rules to issues the new passport and identity card to the
people on the basis of their ‘Sex Changed Certificate’ issued to them by the hospital
authorities2.
Statutory provision in the case
1. Section 40 of Marriage Ordinance MO3was referred by the marriage registrar to resist
W from marriage because the provision in the above section are
(1) Marriage shall be according the christen marriage rituals
(2) Marriage ceremony include a Man and Women for Marriage
Registrar was providing the definition of women on the above basis and that was right,
2. section 20(1)(d) of the Matrimonial Causes Ordinance (“MCO”)4
3. Right to marry in a constitutional right provided by the Article 37 of the Basic Law
Article 19(2) of the Bill of Rights5.
Legal issues in the case
The Court of Final Appeal heard the all relevant facts of the case and identified the following
points as the issue in the case
1. Does the marriage registrar was in confusion about the Marriage Ordinance at the
time of denying W from getting married with her male partner stating her as a male.
The Court of Final Appeal argued on the issues on the following basis-
On the basis of the hearing of Corbett v Corbett Hong Kong accepts that the definition in the
(MO) is exclusion of other biological identities.
2 Athena liu ‘Exacerbating Corbett: W v Registrar of Marriage’ (41) 759 (2011) Hong Kong LJ
3 (Cap. 181) Marriage Ordinance 2019
4 section 20(1)(d) (“MCO”)
5 Article 19(2) of the Bill of Rights
3

And same definition was prescribed by the registrar in the name of the woman is identified
from the birth.
On the basis of the sex reassignment surgery a transsexual is medically certified to be able to
consumption and full sexual penetration Means medically transsexuals are certified to
consummation hence can’t be resisted on this base to get married6.
It is very common base for a marriage accepted in the Hong Kong Law’s
2. If no, is Marriage Ordinance is understood attuned with the privacy and marriage
right as directed and guaranteed by the Basic Law BL and the Bill of Right
Ordinance7.
The Court of Final Appeal argued on the issues on the following basis-
Getting married is a constitutional, fundamental and absolute right; no person (transsexual)
can be resisted from it.
Basic law and Bill of Right Ordinance define the same thing in different phrasing i.e. right to
marry8.
Appellate history of the case
Appellate residing in Hong-Kong and in her thirties realise the gender identity disorder in her
early age. The case is just an important example of getting identified as the legal entity on the
basis of the gender in the civilised society and also demonstrating that gender can never be
6 Gennaro Selvaggi and James Bellringer ‘Gender reassignment surgery: an overview’ (2011) 8 (5)Nature
Reviews Urology274
7 Liu, Athena."Exacerbating Hong Kong LJ 41 (2011): 759
8 Article 19(2) of the Bill of Rights
4

judged by only birth but also on the basis of the gender adopted after sex reassignment
surgery9.
 W applicant of this was born as male, but was facing gender identity disorder. After
getting treatment of sex reassignment surgery in 2008, identity of female was issued
with the certificate of sex reassignment surgery and a passport reflecting her as
female.
 W hired a lawyer to register her marriage in Hong Kong Law’s with her boyfriend.
 Registrar denied registering their marriage saying that their marriage is void because
W doesn’t qualify as a ‘woman’. (s.40 of the Marriage Ordnance MO(Cap 181) )
 First appeal W filed against the registrar in the Court of First Instance heard by the
honourable permanent judge Andrew Cheung. The first judgement rejected the
application of W on the basis of the stating the statement of the respondent registrar
was according the law.
 W aggrieved by the decision of the Court of First Instance filed a revised petition at
the Court of Final Appeal.
 Protecting the right of equality and protracting W from the gender discrimination on
the basis of and allowed in final decision on (13 May 2013) W to marry her boyfriend
after the stay of one year10.
9 Tiffiny A Ainsworth and Jeffrey H Spiegel, ‘Quality of life of individuals with and without facial
feminization surgery or gender reassignment surgery’ (2010) 19 (7) Quality of Life Research 1019-
1024.
10 Goodwin v United Kingdom (2002) 35 EHRR 18
5

Outcomes of the case
The main question raised in the all scenario was to identify is a transsexual women has equal
rights or dignity in Hong Kong constitution and legislation.11 Honourable chief justice held
that the Tran sexuality is a mental disorder need the medical treatment, and Hong Kong
accepts Homosexuality as void but after the certification of the sex change certificate from
the Hospital Authority or overseas government authorities. Hence the outcomes in the final
judgement were
 Key holdings over issue 1
The Court of Final Appeal stated the registrar was correct and understood in the construction
of the ordinances and defined the gender correctly. (As according Corbett’s)
 Key Holding over issue 2
The Court of Final Appeal said that the definition of the Corbett’s is very restricting and
ignore the validity of the transsexual gender is as valid as the female and male. Article 37 of
the (Basic Law) and Article 19(2) of the (Bill of Rights) biological factors are identified.
Judicial Remedies
The Court of Final Appeal declared the following remedies in the related case
 “Women” in the section 20(1)(d) of the Matrimonial Causes Ordinance (“MCO”)
include the transsexual and has the right to get married to a man
 Post-operative male to female with the medical certificate are in the definition of “
Woman”
 To declare the two declarations , there will be a stay of one year on W to marry
11 Travis SK Kong, Sky HL Lau, and Eva CY Li, The fourth wave? A critical reflection on the tongzhi
movement in Hong Kong (Routledge 2015)
6

Ratio Decendi
The ratio decendi identified in this case was
Legislation of Hong Kong resist the homosexuality or same-sex marriage but W was a
transsexual post-operative female and certified by the hospital authority and that was
significance proof of his gender reassignment surgery and she will be identified as a female
hence the base of resisting the marriage on the ground of his previous sex is not acceptable.
The definition of woman in the Basic Law (BL) excluded the Post-Operative Transsexuals,
on the basis of biological factor of identification but psychological factor is not identified in
the present definition.
After Sex Reassignment Surgery sexual procreation and the intercourse remain normal and
the intercourse is not in the same-sex but the genders are changed hence no restriction can be
imposed or can be imposed on the basis of sexual procreation.12
How did the court of final appeal interpret the relevant legislation?
Legislation of Hong Kong identifies the Lesbians, Gay, Bisexual, and Transgender equal to
the normal human and so it includes the space for the Transsexuals in the legislation.
Legislation of Hong Kong was amended with the placement of the right to marry is an
absolute right to all including the transsexuals as well. Primary legislation holding the
phrasings of Corbett’s was enacted in the stay of one year.
How did the court of final appeal apply or distinguish the authorities cited in this case?
 Hyde V Hyde
12 Diana K Kwok and Joseph Wu, ‘Chinese attitudes towards sexual minorities in Hong Kong:
Implications for mental health’ (2015) 27 (5) International Review of Psychiatry 444-454.
7

The outcomes of the case defined the Christian marriage is the voluntary union for the life
including man and woman and excluding others. The impact of this definition affected the
religious definition of the marriage ceremony in Hong Kong and Marriage Ordinance by the
registrar was defined as the same excluding the transsexuals from ceremony.
 Corbett v Corbett13
The outcomes of the case were
Family is the base to institute a marriage.
For the matrimonial purpose the sex are identified only on biological factors that means a
male or female will be defined in their gender base form their born excluding others.
Procreation is possible in the heterosexual body to intercourse to live marriage life successful
All these outcomes affected the definition of gender and the importance of the procreation in
the marriage ceremony.
 Goodwin v UK14
Right to marry doesn’t include the right to find a family
The identity of the transsexual is legal and all rights were reserved in these as the same of
other communities including right to marry.
Applying and distinguishing the cited authorities
Deciding the gender applicable for marry on the basis of only biological factor is not enough
but the post-operative transsexuals are medically treated and certified with their gender to
perform the all basic activities. Hence on the ground of the sexual appearing no person shall
13 [1970] 2 All E.R. 33
14 (2002)35 EHRR 18
8

be discriminated against the basic rights. Immigration authorities are authorised and identities
issued by them is legal and based on the certificate of the gender changing certificate issued
by the hospital authorities after sex reassignment surgery.
The court of Final Appeal in the final arguments included the judgement of Goodwin v UK to
enact the legislation and allow W to get married in the legal manner15.
What use did the court of final appeal make of non-Hong Kong Authorities?
Lord Pannick accepted that the circumstance is changing international level and new changes
are essential to be adapted by Hong Kong in order to continue in the developing and
developed country. Foreign medical authorities and Medical professions and health
authorities of UK, Chicago, Canada and money more are busy in the Sex Reassignment
Surgeries hence these surgeries are medically proven by the international authorities and the
identity cards and passports are also recognised by the immigration authorities of the local
and different countries hence the transsexuals are in fundamental right to be identified as
legal person and they are sexually capable for procreation hence they can’t be resisted from
marriage.
Impact of the decision in the case on Hong Kong law
The court of final appeal delivered their judgement on 13th of May 2013 staying the post-
operative transsexual who has experienced the sex reassignment surgery are in right to marry
their acquired gender and this is an absolute right.
15 Bellinger v Bellinger [2003] UKHL 21
9

The basic law (BL) and the Marriage Ordinance (MO) was amended with the involvement of
the marriage ceremony of the post-operative transsexual is valid in the eyes of laws but the
same-sex or homosexuality is still unidentified in the Hong-Kong16.
Transsexuals after completion of the Sex Reassignment Surgery have equal rights and right to
marry and right to found a family are same phrasing define in two sections but exits same in
the provision of law.
16 Schalk and Kopf v Austria (2011) 53 EHRR 20
10

Impact of the decision on the public
Landmark judgment of the case W v Registrar of Marriage by the Final Court of Appeal
redefining the word Woman in the in Christian Marriage system was seen as the biggest
victory of the Post-Operative Transsexual in Hong Kong. Legal experts, public and other
commentaries welcomed the decision heartedly. This all struggle was about the identity and
indent is the most important thing in one’s life17.
W had been in the Sex Reassignment Surgery for 3 years and this was a big step for her after
getting identified as woman in the society she was thought to enjoy all the legal rights of
woman in Hong Kong, but the resistance by the registrar put the question mark on his
existence as “woman” in the society and the continues struggle of fighting to get the equal
treatment without any discrimination was succeed in the end.
The public said that the ruling will rewrite the definition of Gender in Hong Kong. The ruling
will follow the judgement statement describing that the biological factor can’t be seen to
determine the gender of anyone but the psychological identification in a person is also
important.
Advocate of appellant W, Michael Vidler, described the judgment of the Final Court of
Appeal as the victory for all woman and transsexuals in Hong Kong.
Conclusion
From the ancient history two genders are identified as the part of the society male and female.
In the initial stage of the world development laws were based on these two genders only and
these two genders identities were supposed to be marriage only. But with the development of
the world and new trends many new modifications are seen in the modernised societies.
17 Ghaidan v Godin-Mendoza [2004] AC 557
11

People are identifying the psychological and biological factors both are equally acceptable to
identify the gender of a person.
The Court of Final Appeal in Hong Kong delivered the landmark judgement in the
supervision of Chief Justice Ma, to identify the
 Real definition of Woman
 Real definition of Christian Marriage ceremony
 And existence of post-operative transsexuals,
In the constitution legislation and society of the Hong Kong
The victory of W in the case is example to the LGBT success and the transparency of the
courts in Hong Kong.
12

Bibliography
Book
Kong TSK, Lau SHL, and Li ECL, The fourth wave? A critical reflection on the tongzhi
movement in Hong Kong (Routledge 2015)
Journal Articles
Ainsworth TA, and Spiegel JH, ‘Quality of life of individuals with and without facial
feminization surgery or gender reassignment surgery’ (2010) 19 (7) Quality of Life Research
1019-1024
KwokDK, and Wu J, ‘Chinese attitudes towards sexual minorities in Hong Kong:
Implications for mental health’ (2015) 27 (5) International Review of Psychiatry 444-454
Liu A, ‘Exacerbating Corbett: W v Registrar of Marriage’ (41) 759 (2011) Hong Kong LJ
Loper K, ‘W v Registrar of Marriages and the Right to Equality in Hong Kong’ (2011) 41
Hong Kong LJ 89
Selvaggi G, and Bellringer J, ‘Gender reassignment surgery: an overview’ (2011) 8 (5)
Nature Reviews Urology274
Cases
Abn Amro Bank N v v QT [2018] HKCFA 17
Cheung Mei Yin v Postmaster General [2014] HKCA 42
Corbett v Corbett [1970] 2 All E.R. 33
Director of Immigration v QT [2018] HKCFA 28; 403
Female ABC v Registrar of Births, Deaths & Marriages 2015] FJHC 1044
Goodwin v United Kingdom (2002) 35 EHRR 18
Leighton Property Co Ltd v Town Planning Board [2016] HKCFA 67; (2016) 19
Leung Chun Kwong v Secretary for the Civil Service [2017] HKCFI 736;
13