Patrick Jiang
The University of Hong Kong, Law, Alumnus
The case of W v Registrar of Marriages [2010] 6 HKC 359, concerning a post-operative male-to-female transsexual’s right to marry, has generated much interest and criticism from both the legal sector and other groups in Hong Kong. Hong... more
The case of W v Registrar of Marriages [2010] 6 HKC 359, concerning a post-operative male-to-female transsexual’s right to marry, has generated much interest and criticism from both the legal sector and other groups in Hong Kong. Hong Kong currently follows the common law position regarding the determination of a person’s sex, and does not allow the change of the sex as recorded on a person’s birth certificate, ie one’s legal gender cannot be changed. However, in Singapore, Japan, and the United Kingdom, legislation has been enacted in order to allow for recognition of a transsexual’s post-operative gender.
The current situation for transgender people in Hong Kong is highly unsatisfactory, putting them in a position that is ‘neither here nor there’: their body is of one gender but in law they are of the other. It is argued that the courts in W, although having rejected W’s application, are of the opinion that legislative intervention is necessary in the case of transgender people.
After a comparative analysis of the legislations, focussing on (i) their development process; (ii) their scope; and (iii) the requirements for change of legal gender under the laws, it is suggested that Hong Kong should mould its own gender recognition law on the UK Gender Recognition Act 2004 subject to modifications and taking into account Hong Kong’s social values, while taking care to avoid the weaknesses identified in the laws of Singapore and Japan.
The current situation for transgender people in Hong Kong is highly unsatisfactory, putting them in a position that is ‘neither here nor there’: their body is of one gender but in law they are of the other. It is argued that the courts in W, although having rejected W’s application, are of the opinion that legislative intervention is necessary in the case of transgender people.
After a comparative analysis of the legislations, focussing on (i) their development process; (ii) their scope; and (iii) the requirements for change of legal gender under the laws, it is suggested that Hong Kong should mould its own gender recognition law on the UK Gender Recognition Act 2004 subject to modifications and taking into account Hong Kong’s social values, while taking care to avoid the weaknesses identified in the laws of Singapore and Japan.
