W v Registrar of Marriages (Transgender marriage case)

W v Registrar of Marriages

On 13 May 2013, the Court of Final Appeal (by a 4-1 majority, Chan PJ dissenting) allowed an appeal by a woman who had undergone sex reassignment surgery and who wished to marry her partner, finding that the decision by the Registrar of Marriages to refuse her permission – on the basis of her sex at birth – was in breach of her right to marry guaranteed by Article 37 of the Basic Law.The Registrar had argued that the question – whether such persons were entitled to marry – was properly a matter for the legislature, not the Court, and that a wide margin of appreciation should be the guiding principle.  The majority – Chief Justice Ma and Ribeiro PJ delivered the leading judgment with which  Bokhary and Lord Hoffman NPJJ concurred – rejected this argument.    The Basic Law as a ‘living instrument’ was not to be construed in accordance with the prevailing consensus of community support and recognition of transexuals’s right to marry, but rather in the light of the increasing knowledge of the condition, and the extensive nature of the procedure W had undergone to become a woman.  Further, the Court departed from the Corbett rationale that marriage was an institution primarily for the purpose of procreation.

The Judgment stopped short of granting immediate declaratory relief to the Appellant, and (at the time of writing) the Court will consider further submissions from the parties on the orders to be made.  A 12-month stay of any declaration of unconstitutionality of the relevant portions of the Marriage Ordinance and the Matrimonial Causes Ordinance, in order to allow the Government time to implement legislative reform, is one possibility that has been flagged by the Court.