Analyzing Bokhary NPJ's reasoning and decision

This article analyzes the reasoning and decision of Bokhary NPJ in a case related to gender reassignment surgery and marriage rights. It discusses the interpretation of statutes, the legal and social impact of the judgment, and predicts its future implications.

Civil Law

Table of Contents
Analyzing Bokhary NPJ's reasoning and decision.................................................................................2
Ambiguous statement made by Bokhary NPJ........................................................................................2
How Bokhary NPJ reached his judgment..............................................................................................2
Bokhary NPJ complying with international standard.............................................................................2
Remedial interpretation of the statues....................................................................................................3
Commenting on the discussion..............................................................................................................3
The legal and social impact brought by Bokhary NPJ's judgment.........................................................3
Predicting the impact of this case will have on the future decision........................................................3
References.............................................................................................................................................4
1

Analyzing Bokhary NPJ's reasoning and decision
The word gender as per the legislation includes the gender obtained by the sex reassignment
surgery. So, one who had undergone a sex reassignment surgery can marry after such surgery
in the reassigned capacity. Hence the appeal was allowed. It was further stated that this
judgment is not intended to insult others from having a different view. The expression ‘post-
operative transsexual’ was used in the judgment. The judge asserted that any transsexual who
has undergone such an operation will be treated as of that sex brought about by operation1.
Ambiguous statement made by Bokhary NPJ
Bokhary NPJ stated that an individual who has been undergone sex reassignment will be able
to marry as an individual of the reassigned sex. It can be said that a post-operative transsexual
can get marry in the reassigned capacity. He mentioned that gender reassignment and sex
reassignment are interchangeable expressions.
How Bokhary NPJ reached his judgment
Bokhary NPJ applied the post-operative transsexual expression which is because it is used by
the courts while dealing with these types of cases. However, an individual who had
undergone sex reassignment surgery is still to be considered as a transsexual. He stated that
the constitution guaranteed the right to marry which is being extended to the rights of the
post-operative transsexual in order to get married. The gender obtained by the sex
reassignment surgery would be included in the right to marry within the reassigned capacity
as per the law2.
Bokhary NPJ complying with international standard
World Health Organization defines transsexualism as the desire of living and accepting them
as person of the opposite sex which is being accompanied by the sense of inappropriateness,
discomfort, anatomic sex, having hormonal treatment and surgery for making the body as
similar as preferred sex.
1 Hong Kong Case Law (2013).
W v. THE REGISTRAR OF MARRIAGES – Hong Kong Case Law. [online]
Hongkongcaselaw.com. Available at: https://www.hongkongcaselaw.com/w-v-the-registrar-of-marriages/
[Accessed 22 Mar. 2019].
2 Kirton, J. and Madunic, J. (2009).
Global law. 3rd ed. Farnham: Ashgate.
2

Remedial interpretation of the statues
If the statutes are not given any remedial interpretation then under ordinary interpretation it
will be difficult to ascertain the meaning of gender. It will difficult to decide whether the term
gender includes gender obtained by the sex reassignment surgery or not. If the non-inclusive
reading of the legislation produces unconstitutionality then the only option is to strike down
such a provision.
Commenting on the discussion
The judges are of the view that any legislation that debars a person from marrying in the
reassigned capacity is unsuited with the right to marry and respect for life. There are two
reasons why judges intervened by the declaration of incongruity rather than the statutory
interpretation. The first reason was that the British government had taken steps to allow the
transsexual to marry in their acquired capacity after a sex reassignment surgery. The second
reason was a declaration of incompatibility does not nullify the legislation but results in
corrective legislation3.
The legal and social impact brought by Bokhary NPJ's judgment
This particular interpretation of the statute has widened the concept of the term right to marry
and freedom from the interference with privacy. Now a person can marry in their acquired
capacity after a sex reassignment surgery. Marriage is no longer only restricted to the
procreation of children. The basic human right was protected by such a remedial
interpretation of the statute.
Predicting the impact of this case will have on the future decision
Bokhary NPJ's judgment was quite progressive and ahead of its time. This judgment will
pave the way of progressive thinking in the society. The judge instead of striking down the
provision in the legislation has adopted a remedial interpretation. In future, a person can
marry in the acquired capacity after a sex reassignment surgery4.
3 Melton, B. (2010).
The law. 5th ed. New York: Chelsea House Publishers.
4 Musa, S. (2013).
Reflections on Global Law. 4th ed. New York: Martinus Nijhoff Publishers.
3

References
Hong Kong Case Law (2013). W v. THE REGISTRAR OF MARRIAGES – Hong Kong Case
Law. [online] Hongkongcaselaw.com. Available at: https://www.hongkongcaselaw.com/w-v-
the-registrar-of-marriages/ [Accessed 22 Mar. 2019].
Kirton, J. and Madunic, J. (2009). Global law. 3rd ed. Farnham: Ashgate.
Melton, B. (2010). The law. 5th ed. New York: Chelsea House Publishers.
Musa, S. (2013). Reflections on Global Law. 4th ed. New York: Martinus Nijhoff Publishers.
4