Poon Wai Yee Emily The Open University of Hong Kong

1. Poon Wai Yee Emily The Open University of Hong Kong

2. 1. HK transsexual wedding case 9 & 10 August 2010 (W v Registrar of Marriages HCAL 120/2009; CACV 266/2010) A male-to-female transsexual, identified as W, challenged the Registrar of Marriages by seeking a judicial review in the High Court (HC)in court because he had barred her from marrying her boyfriend. W already had her gender on her ID changed to female. However, the registrar said her chromosomes still say she is a male.

3. Cont’d W was seeking a court declaration that she is a woman and so far as her right to marry is concerned, the Marriage Ordinance is inconsistent with the Basic Law and the Bill of Right. W’s lawyer argued that the law guarantees the right of marriage to “residents” without stipulating whether they are male and female. As the law is gender-neutral, she should have the right to marry. W’s case was dismissed by the HC. She appealed in the Court of Appeal (COA).

4. 2. The questions that will arise: • What is a man and what is a woman? • What is the legal definition of marriage? • What are the implications on the words used and their translation?

5. 3. Difference between sex and gender 3.1 Traditional definitions Sex was defined as biological differences in genetic composition and reproductive anatomy and function. Gender, in contrast to sex, was originally defined as “those characteristics and traits socioculturally considered appropriate to males and females”, the traits that make up masculinity and femininity (they are expressed through clothing, hairstyle, body exposure, and so on). (Crawford 2012: 25-26 and 34)

6. 3.2 Gender roles and gender identity Gender roles can be described as social norms, or rules and standards that dictate different interests, responsibilities, opportunities, limitations and behaviours for men and women. (Johnson and Repta 2012: 23) Gender identity is concerned with how people view themselves with respect to gender. Individual’s inner feelings impact how they present themselves as a man, a woman, or another gender. (Oliffe and Greaves 2012: 24)

7. 3.3 Debate While we often like to think of sex as biological and gender as social, both concepts are socially constructed and therefore subject to change over time. Different cultures conceptualize sex variation in different ways, and our understandings of sex have changed over time (and continue to change) as biological variation is discovered and measurement techniques are refined. For example, previous conceptions of sex assumed chromosomal arrangements XX and XY as the typical makeup for women and men, respectively, while we now understand that chromosomal configurations XXX, XXY, XYY, and XO exist, as well as XX males and XY females. (Johnson and Repta 2012: 19-20)

8. 4. The legal definition of marriage The most widely accepted definition of marriage in the law is that in Hyde v Hyde and Woodhouse (1866) LR 1 PD 130: “the voluntary union for life of one man and one woman to the exclusion of all others.”

9. 5. Valid Marriage (Hong Kong) s.40(1) of Marriage Ordinance (婚姻條例) (Cap.181) • (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. • (1) 凡根據本條例舉行的婚禮，均屬基督教婚禮或相等的世俗婚禮。 • (2) “基督教婚禮或相等的世俗婚禮”(Christian marriage or the civil equivalent of a Christian marriage) 一詞，意指婚禮經舉行正式儀式，獲法律承認，是一男一女自願終身結合，不容他人介入。

10. 6. The grounds on which a marriage is void/voidable (Hong Kong) s.20(1) of Matrimonial Causes Ordinance (婚姻訴訟條例) (Cap.179) 20(1) 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. 20(1) 凡屬在1972年6月30日之後締結的婚姻，該婚姻僅能基於下列任何理由而無效 – (d) 婚姻雙方，並非一方為男，一方為女。

11. s.20(2) of Matrimonial Causes Ordinance (婚姻訴訟條例) (Cap.179) 20(2) A marriage which takes place after 30 June 1972 shall, …, be voidable on any of the following grounds only – (d) that the marriage has not been consummated owing to the incapacity of either party to consummate it; 20(2) 凡屬在1972年6月30日之後締結的婚姻，…，該婚姻僅能基於下列任何理由而可使無效 – (d) 由於任何一方無能力圓房以致未有完婚；

12. 7. Transsexuals 7.1 These are people who are born with some or all of the biological characteristics of one sex, but psychologically feel they belong to the other sex. Gender realignment surgery/gender reassignment surgery/sex change operation: This combined with hormonal drug treatment, has the effect that the outward appearance of the patient matches their “psychological sex”. (Herring 2004: 44)

13. 7.2 Difference between transsexual and transgender Transsexual is used to distinguish those who wish to change their sex in a permanent and literal sense by employing hormone and/or surgical techniques. Transgender is a terminology coined in the 1970s but only widely employed from the 1990s. It is used to distinguish those who wish to alter their gender in a permanent but less literal sense – that is, those who live as the opposite gender, as a third gender or as an ambiguous gender, without resort to surgical or perhaps even hormonal interventions. (Beasley 2005: 159-160)

14. Cont’d Transgender is sometimes used as a generic term to denote the whole field of Trans theorising – that is, the whole field of gender identity transgressions, including tranvestism, drag, transsexualism and so on. (Beasley 2005: 153)

15. 7.3. Problems encountered by transsexuals (Hong Kong) A transsexual can amend his/her identity card or passport to reflect their acquired gender. However, a transsexual cannot change his/her birth certificate. This is crucial because this is the document used to determine sex for the purpose of marriage.

16. 8. Leading cases 8.1 Corbett v Corbett [1970] 2 WLR 1306 High Court Ashley, born as a man but undergone a sex-change operation and lived as a woman. She later married with a man. No more than 14 days after the marriage, her husband filed a petition (呈請) for a declaration that the marriage was null and void because the respondent was a person of male sex, or alternatively for a decree of nullity (婚姻無效判令) on the ground of non-consummation.

17. Cont’d Ormrod J: • Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must 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 (染色體), male gonads (睪丸) and male genitalia (生殖器官) cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.

18. Cont’d • The law should adopt, in the first place, the first three of the doctors’ criteria, ie 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. • The woman could not engage in full natural sexual intercourse.

19. 8.2 Goodwin v United Kingdom; I v United Kingdom [2002] 2 FLR 487 and 518 European Court of Human Rights 歐洲人權法庭 Goodwin underwent a sex-change operation to become a female. Goodwin complained that she could not find work because she refused to present her birth certificate to a potential employer. She also complained about her inability to marry.

20. Held: • While Art. 12 of the European Convention on Human Rights referred in express terms to the right of a man and a woman to marry, the Court was not persuaded that those terms restricted the determination of gender to purely biological criteria. Art. 12 states: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the existence of this right.”

21. Cont’d • There had been dramatic changes brought about developments in medicine and science in the field of transsexuality. A test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. • An inability to conceive or parent a child cannot remove the right to marry. • There were other important factors. The acceptance of the condition of gender identity disorder (性別認同障礙) by the medical professions and health authorities within the contracting states, the provision of treatment, including surgery to assimilate the individual as closely as possible to the gender in which they perceived that they properly belonged; and the assumption by the transsexual of the social role of the assigned gender.

22. 8.3 Bellinger v Bellinger[2003] 1 FCR 1043; [2003] 2 FCR 1 House of Lords B underwent a sex-change operation to become a female. She married a man H. Later she applied for a declaration under s55 Family law Act 1986 that her marriage to H was valid at its inception and subsisting notwithstanding that B was born a male. She also argued that s11(c) Matrimonial Causes Act 1973 (which makes void any marriage unless the parties are respectively male and female) was incompatible with arts 8 and 12 of the European Convention on Human Rights.

23. Cont’d Held: • Dismissing the appeal, in English law a person who was born male but who underwent gender reassignment treatment could not enter into a valid marriage with another male. • Any fundamental change in the law, which interfered with the traditional concept of marriage, had to be brought about by Parliament and not judicial intervention. • Such a change in English law raised matters of extensive inquiry and public consultation and discussion ill-suited for determination by the courts. They were a matter for Parliament.

24. 8.4 Response of UK government • In 2004 the government enacted the Gender Recognition Act to provide for the legal recognition of transsexuals. • This will include the right to marry in their adoptive sex and to apply for new birth certificates showing their new sex. • The certificate will be available only to a person who has “gender dysphoria” (性別躁鬱症) and has lived in his/her “acquired gender” for two years before the certificate has been issued.

25. 9. The situation in PRC 9.1 Marriage law 《中華人民共和國婚姻法》(2001修正) 第一章第二條 [婚姻制度]實行婚姻自由，一夫一妻，男女平等的婚姻制度。 Chapter 1 Article 2 A marriage system based on freedom, monogamy and equally between man and woman shall be implemented.

26. Cont’d 9.2 Marriage law 《中華人民共和國婚姻法》(2001修正) 第二章第十條 [婚姻無效]有下列情形之一的，婚姻無效： (一) 重婚的； (二) 有禁止結緍的親屬關係的； (三) 婚前患有醫學上認為不應當結婚的疾病，婚後尚未治愈的； (四) 未到法定婚齡的。

27. Cont’d Marriage Law of PRC (2001 Amendment) Chapter 2 Article 10 If any of the following circumstances occurs, the marriage shall be invalid: a. if either party is a bigamist; b. if both parties are in the kinship that is forbidden from getting married by law; c. if any party has suffered from any disease that is held by medical science as rending a person unfit for getting married and the disease has not been cured after marriage; d. if any party has not come to the legitimate age for marriage.

28. 9.3 News 9.3.1 江西公安廳人士詳解我國法律沒有支持變性手術，也沒有說不允許。目前，只有河南省明確容許變性後可變更戶籍。 “現有的法律無相關內容規定，是變性人面臨的難關。法律沒有支持變性手術，也沒有說不允許，所以變性手術存在法律盲點。”江西省社會學院一位研究員告訴記者，法律目前不承認心理性別，也不承認手術後的性別，所以很多變性者手術後似乎處於真空無性別狀態，戶口本，身份證，畢業證都無法更改，一些變性者因為證件的不能更改陷入困境，過去的夫妻關係，兒女關係如何確定等都遭遇法律空白。

29. Cont’d 正是為了破解變性人面臨的困境，江西省公安廳專門發文，對實施變性手術後變更戶口手續進行明確：實施變性手術的公民申請變更戶口登記性別項目時，應當提供國內三級醫院出具的性別鑒定證明和公證部門出具的公證書，或司法鑒定部門出具的證明，經地(市)級公安機關主管部門核准後，由公安派出所辦理性別變更手續。性別項目變更後，重新編制公民身份號碼。其中已領取居民身份證的，公安機關將予以繳銷，並為其重新辦理居民身份證。 這意味著江西省成為繼河南省後第二個明確變性後可變更戶口的省份。 (摘自《法制日報》2008年12月4日)

30. 9.3.2 2011年9月20日，舞蹈家金星發表微博，稱由於浙江廣電局向節目組發出禁令，自己無法繼續擔任浙江衛視《非同凡響》節目的決賽評委，而究其原因，居然是源於金星的變性經歷。 (摘自《申江服務導報》2011年9月28日)

31. 10. Trans Theorising Bornstein (1994; quoted in Beasley 2005:155), a post-operative transsexual, proposed the denunciations of the “bipolar gender system”: “It’s the gender system itself – the idea of gender itself – that needs to be done away with. … The trap for women is the system itself; it’s not men who are the foe so much as it is the bipolar gender system that keeps men in place as more privileged. … I think that male privilege is the glue that holds the system together.” Questions that will arise: • Will equality between men and women be beneficial to transsexuals? • Should we erase the binary system of sex and gender?

32. 11. No Gender Society Okin (1989: 171) proposed a no gender society: It would be a future in which men and women participated in more or less equal numbers in every sphere of life, from infant care, to different kinds of paid work, to high-level politics. However, this equal sharing of parental responsibility would give rise to a substantial change in a social structure: Pregnancy and childcare… should be regarded as temporarily disabling conditions like any others, and employers should be mandated to provide leave for all such conditions (Okin 1989: 176).

33. 12. Near-perfect Equality in Hong Kong It is still difficult to achieve “perfect equality” when taking into account: • The biological and emotional differences between men and women; • Masculinity is still tied to breadwinning and dominance. Near-perfect equality has been achieved: • education (In 2011, 25.5% of women underwent post-secondary education, as against 29.4% for men.) • high position (In 2011, 843 men and 414 women worked as directorate officers in the civil service.) • financial independent (In 2011, men were 26.9% more than women who earned more than $30,000 per month.) (Data from the census and statistics Department, 2012 Edition)

34. Cont’d Questions that will arise: If both men and women have rights, power and status, and if most people have their gender conform with their sex, why should we bother to erase the binary system? Important point: The binary system is shaped by social practices and law.

35. 13. Implications on the words used / and their translation 13.1 Arguments by W’s lawyer The interpretation of the words “man” and “women” in the Marriage Ordinance and the Matrimonial Causes Ordinance should include a post-operative transsexual in his or her acquired sex. 13.2 Response from the court A person who has undergone a sex-change surgery is not commonly called a man or a woman. The Shorter Oxford English Dictionary (6th ed, 2007) defines the word “woman” as an adult female person, and defines the adjective “female” as “of, pertaining to, or designating the sex which can beget offspring and produce eggs…”

36. 13.3 How should we translate these words? Sex: 先天性別 Gender: 性別、社會性別(by kang-i Sun Chang 孫康宜) Male sex: 先天男性 Male gender: 男性 Acquired sex: 認可後天性別 Acquired gender: 認可後天社會性別 Transsexual: 人妖 (with discrimination)、變性人 Transgender: 雙性人？ (Other pejorative terms for transsexual/ transgender: tranny, shemale) Transvestite/Cross-dresser:易服癖

37. 13.4 Translation of lexical terms The way a legal term should be translated has been described by the Law Drafting Division as follows: When selecting the Chinese term, we must consider the ‘adequacy’ and ‘acceptability’ of the term. ‘Adequacy’ means whether a Chinese term can carry, under the grammatical rules and semantic schemes of the Chinese language, the meaning of its English equivalent. ‘Acceptability’ means whether the Chinese translation complies with the grammatical and usage rules of the Chinese language and whether it is comprehensible. (Law 1999 Feb: 39) Should we define “meaning” as “social meaning” or “ contextual meaning”?

38. 13.5 Implication on other ordinances Sex Discrimination Ordinance: “It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of sex.” (Equal Opportunities Commission website) Does the word “sex” here really mean “biological sex”? Are transsexuals protected by law?

39. Cont’d Crimes Ordinance (Cap. 200): S.48 “Any woman of or above the age of 16 years who with consent permits her grandfather, father, brother or son to have sexual intercourse with her … shall be guilty of an offence …” How would you define the words “woman”, “grandfather”, “father”, “brother” and “son” here? How would you translate these words?

40. 14. Decision of the Court of Appeal The COA supported the reasons given by the HC, and dismissed the appeal: • The COA refused to follow the decision in Goodwin since Corbett has been given statutory effect in Hong Kong since 1972 and strong reasons would be required to justify a departure from it. • The High Court denied W the right to marry her boyfriend, saying it is up to the legislature to set societal norms for defining gender – not the courts.

41. Cont’d • It is hoped this case would serve as a catalyst for the government to conduct general public consultation on gender identity, sexual orientation and the specific problems faced by transsexuals, including the issue of their right to marry. • No evidence had been brought in the case of an emerging consensus or general understanding that it was acceptable for transsexuals to marry in Hong Kong. • It could not be proved the modern definition in marriage of “man” and “woman” include a post-operative transsexual.

42. References BEASLEY, Chris. 2005. Gender & Sexuality: Critical Theories, Critical Thinkers. London, Thousand Oaks and New Delhi: Sage Publications. BORNSTEIN, K. 1994. Gender Outlaw: On Men, Women and the Rest of Us. New York and London: Routledge. Crawford, Mary. 2012. Transformations: Woman, Gender & Psychology (2nd ed.). New York: McGraw-Hill. Dodds, Malcolm. 2004. Family Law 150 Leading Cases. London: Old Bailey Press. Herring, Jonathan. 2004. Family Law (2nd ed.). London: Pearson Education Ltd. Johnson, Joy L. and Robin Repta. 2012. “Sex and gender: Beyond the binaries”. John L. Oliffe & Lorraine Greaves, eds. Designing and Conducting Gender, Sex, Health Research. London: Sage. 2012. 17-37. Law Drafting Division, Department of Justice. 1999, February, “The common law and the Chinese language”. Hong Kong Lawyer. 39-42. Oliffe, John L. and Lorraine Greaves. 2012. Designing and Conducting Gender, Sex & Health Research. London: Sage Publications, Inc. Oxford Advanced larner’s Dictionary of Current English (4th ed.). Oxford: Oxford University Press. South China Morning Post 11 August, 2010 and 6 October, 2010. 申江服務導報2011年9月28日。 法制日報2008年12月4日。

43. Translation Exercise W為捍衛愛情，遂入稟申請司法覆核，指《婚姻條例》違反《基本法》，同時要求法庭確認其女性身份。 For the sake of love, she sought an application for the judicial review alleging that the Marriage Ordinance is inconsistence with the Basic Law. She also sought the Court to affirm her gender as female. In defense of love, W was then sought leave to apply for judicial review, arguing that the ordinance should be found in breach of the Basic Law, and requested the court legally recognized her changed gender. To fight for “her” love, W sought leave to apply for judicial review, claiming that the Marriage Ordinance contravened with the Basic Law and sought for recognition of “her” female identity by the Court.

44. 負責審議本案的法官張舉能，昨日在庭上提出多個質疑，包括進行變性手術後即可跟「同性」結婚，是否等同容許「同性」婚姻，負責審議本案的法官張舉能，昨日在庭上提出多個質疑，包括進行變性手術後即可跟「同性」結婚，是否等同容許「同性」婚姻， The responsible judge to judge this case, Hon Andrew Cheung J, raised few questions in the court yesterday including whether post-operative male-to-female transsexual may marry a man as opposed to a woman after the sex change operations. Is it the same to allow the same sex marriage? The judge of the case Hon Andrew Cheung J raised a number of questions in the court yesterday, including whether allowing post-operative transsexuals to marry to their “same sex” partners was equivalent to the acceptance of “same sex” marriage,

45. … 成為女兒身，連身份證及大學畢業證書等，均註明其女性身份，… W… acquired her female gender. Her Identity Card and university graduation certificates all stated that her sex is female. W… became a female. His graduation certificate and identity card also showed his female status. “She” then became a woman with “her” identity card and other documents like graduation certificate of university indicating “her” female identity, …

46. 但她與男友到婚姻註冊處登記結婚時，卻被婚姻登記官發現，兩人之出世紙上的性別均是「男性」。但她與男友到婚姻註冊處登記結婚時，卻被婚姻登記官發現，兩人之出世紙上的性別均是「男性」。 W … upon going with her boyfriend to the Marriage Registry for registration of marriage, was however discovered by the Registrar of the Marriages that the gender on their birth certificates were both “male”. However, when she and her fiancé registered their marriage with the Marriage Registry, the Registrar of Marriage discovered that the sex on both of their birth certificates is male.

47. 諷刺的是，雖然根據《生死登記條例》，任何人不得更改出生證明書上的資料，包括性別，以尊重自然生命及生育的原則，但法例卻自相矛盾地容許市民更改身份證上的性別，故才形成了法律上的灰色地帶。諷刺的是，雖然根據《生死登記條例》，任何人不得更改出生證明書上的資料，包括性別，以尊重自然生命及生育的原則，但法例卻自相矛盾地容許市民更改身份證上的性別，故才形成了法律上的灰色地帶。 Ironically, in accordance to the Birth and Death Registration Ordinance, no person can alter the information on the birth certificate, including sex so as to respect the principle of natural life and procreation. However, the legislation is self-conflicting which allows individuals to alter their sex on their Identity Card. Hence, forming a grey area in law. Ironically, although according to the Births and Deaths Registration Ordinance, no one may alter the data on the birth certificate, including sex, in order to give due respect for the natural life and birth giving, the law contradictorily allows citizens to alter the gender on ID cards. The grey area in law is formed in this way.

48. THE END