The 37-year-old, who had a government-subsidized sex change operation, had twice lost her case at lower courts
A transsexual woman has won on appeal the right to marry her boyfriend, a decision poised to rewrite Hong Kong’s marriage law.
The appellant — known only by the initial ‘W’ — is a post-operative male-to-female transsexual who was refused the right to marry because she did not quality as a “woman” under Hong Kong law.
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Landmark decision: Michael Vidler, W’s lawyer, talks to the press outside the court of final appeal in Hong Kong yesterday. Pic/AFP
The Court of Final Appeal ruled 4-1 Monday that the restriction was unconstitutional. The 37-year-old woman —who had a government-subsidized sex change operation —had twice lost her case at lower courts.
“I may have been born a man but after transgender surgery at a government hospital more than five years ago, I’ve lived my life as a woman and been treated as a woman in all respects except as regards my right to marry,” W said in a statement through her attorney, Michael Vidler.
“This decision rights that wrong, and I’m very happy the Court of [Final] Appeal now recognizes my desire to marry my boyfriend one day, and that desire is no different to that of any other woman who seeks the same here in Hong Kong.”
The court decision will not come into effect for 12 months to give the Hong Kong legislature the opportunity to address the portion of the law deemed unconstitutional. “We should make it clear that nothing in this judgment is intended to address the question of same sex marriage,” Chief Justice Geoffrey Ma Tao-li and Judge Robert Ribeiro wrote in their majority decision.
Biological criteria?
The majority found the idea that a “woman” is a biological criteria fixed at birth “is particularly hard to justify in the light of significant medical advances in the treatment of transsexualism and important changes in the understanding of and social attitudes towards transsexual persons which have occurred over the last 40 odd years.”
Section 21 of the Marriage Ordinance stipulates that the union be between “one man and one woman to the exclusion of all others”
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