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02 Mar

Ball back in court as transgender wins appeal right

A transgender woman has been granted leave to ask the Court of Final Appeal to determine whether a post-operative transsexual may be considered female under the Marriage Ordinance.

Should it decide in her favor, the court will have to decide whether the ordinance is unconstitutional, and review related issues according to the Hong Kong Bill of Rights.

In granting Ms W leave, the court said the matter is of public interest and a definitive ruling is necessary.

Ms W underwent sex-change surgery in Hong Kong and had her sex altered on her identity card.

The Registrar of Marriages denies her the right to marry her boyfriend, and refuses to recognize her as female as she is not allowed to alter her birth certificate on which she is male.

Also, the ordinance states that a marriage is defined as “a union between a man and a woman.” Under Hong Kong law a birth certificate cannot be changed.

Ms W lost the initial court hearing in 2009 and a subsequent judicial review the year after.

In 2010, counsel for Ms W, Philip Dykes, said marriage is a basic human right as protected in Article 37 of the Basic Law.

But government counsel Monica Carss-Frisk said natural gender is determined by genes and a transgender woman marrying her boyfriend would fundamentally change Hong Kong traditions.

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