On Monday, a transgender woman in Hong Kong won the right to marry her boyfriend, changing her city’s marriage laws. And over 17,000 Care2 members signed a petition that helped make this success story possible.
The (now) bride to be, who is in her 30′s and referred to as “W” under anonymity rules, underwent gender reassignment surgery in 2008. Her passport and identity card recognize her as a woman. She is required, in fact, to use women’s bathrooms. Her operation was even subsidized by the government. But when W tried to marry her boyfriend, the city’s Registrar of Marriages refused. They claimed she was a man since her birth certificate identified her as male. And since Honk Kong does not recognize same-sex marriage, the city couldn’t recognize W’s marriage, which would, they said, be between two men. A 2010 court decision agreed that W should be barred from marrying a man and said that marriage was limited to couples who were born the opposite sex. The case failed, according to the decision, “to demonstrate a shifted societal consensus in present-day Hong Kong regarding marriage to encompass a post-operative transsexual.”
But W appealed the decision, which she argued violated her constitutional rights. And this time, the court agreed, saying, “It is contrary to principle to focus merely on biological features fixed at the time of birth.” The panel of five judges, with one dissent, rejected the earlier decision to “adopt criteria which are fixed at the time of the relevant person’s birth and regarded as immutable,” as this is a “blinkered view.”
The verdict also recognized the evolution of marriage, saying there have “clearly been far-reaching changes to the nature of marriage as a social institution…. In present-day multi-cultural Hong Kong where people profess many different religious faiths or none at all… procreation is no longer (if it ever was) regarded as essential to marriage.” Going even further, the court stated that “The greatest and most urgent need for constitutional protection is apt to be found among those who form a minority, especially a misunderstood minority.”
The ruling will not take effect for 12 months, giving the government time to change its marriage laws.
W’s attorney, Michael Vidler, explained the implications of this “landmark decision”: “This is a case about sexual minorities being recognized and that their rights are just as important as everyone else’s….”
W was not at the court house, but Vidler read a statement she had written: “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.” In a conference call later with reporters, W said, “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…This is a victory for all women in Hong Kong.”
Until now, Hong Kong has been behind neighboring countries like China, Singapore, India, South Korea, Japan, Indonesia, Australia and New Zealand, which allow transgender people to marry members of the opposite sex. “It’s quite absurd that Hong Kong has maintained an obsolete position for so long,” said Law Yuk-kai, who heads the Hong Kong Human Rights Monitor.
But Hong Kong and these other countries have by no means achieved marriage equality, with the exception of New Zealand, which legalized same-sex marriage in April. And if, for instance, W had been born female and transitioned into a man, he would not have been able to marry his boyfriend.
The decision recognizes the gender of transgender people and grants civil rights to a previously disenfranchised group of people. But it is very gendered and reinforces the definition of marriage as existing between a man and a woman. It is progressive insofar as it acknowledges that someone born male can become a woman, but it is conservative and heteronormative in its limiting marriage to heterosexuals.
To be fair, severing the connection between procreation and marriage helps further the cause of marriage equality (which isn’t to imply that LGBT do not procreate. It’s just that same-sex couple’s inability to procreate the way heterosexual couples can is often used as an argument for why marriage should be between a man and a woman, as it was by the lawyer who defended Prop 8 before the Supreme Court, in a literally laughable way.) And some same-sex marriage advocates, like Waiwai Yeo of the Women Coalition of Hong Kong, which represents lesbian, bisexual and transgender women, are encouraged by the decision, which they see as a step in the right direction towards marriage equality.