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A Government spokesman today (July 16) said that with the Court of Final Appeal (CFA) Order in the judicial review case of W v Registrar of Marriages (FACV 4/2012) (the W Case) coming into effect on July 17, 2014, persons who have received full sex re-assignment surgery (SRS) will be treated by the Registrar of Marriages as being of the sex to which they are re-assigned after the surgery for the purpose of marriage registration starting from the same day.
The Marriage (Amendment) Bill 2014 was introduced into the Legislative Council (LegCo) in March 2014 with the aim to align the statute law with the CFA Order in the W Case so as to give the public a clear understanding of the right of transsexual persons who have received full SRS to marry in their re-assigned sex. In accordance with the CFA Order, persons who have received full SRS are to be treated as persons of their re-assigned sex and therefore eligible to marry a person of the opposite sex under the Marriage Ordinance (Cap. 181).
The spokesman said that the Bill is still pending resumption of second reading debate and third reading by LegCo after the summer recess. Nonetheless, with the CFA Order coming into effect on July 17, 2014, persons who have received full SRS will, starting from the same day, be treated by the Registrar of Marriages as being of the sex to which they are re-assigned after the surgery for the purpose of marriage registration.
The CFA Order declares, amongst other things, that, "Section 20(1)(d) of the MCO (Matrimonial Causes Ordinance, Cap.179) and section 40 of the MO (Marriage Ordinance, Cap.181) must be read and given effect so as to include within the meaning of the words 'woman' and 'female' a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery.¡¨
In paragraph 124 of the judgment, the CFA held that a transsexual person in W's situation, that is one who has gone through a full SRS, is entitled to be included as a "woman" within the meaning of MO section 40 and MCO section 20(1)(d). In paragraph 125 of the judgment, the CFA held that a transsexual person, who has been issued with a certificate that his or her gender has been changed on the basis that the original genital organs have been removed and some form of the genital organs of the opposite sex have been constructed, ought in any event to qualify as a person entitled to marry in his or her acquired gender.
Full SRS is a surgical procedure that:
(a) has the effect of re-assigning the sex of a person from male to female by:
(i) removing the person's penis and testes; and
(ii) constructing a vagina in the person; or
(b) has the effect of re-assigning the sex of a person from female to male by:
(i) removing the person¡¦s uterus and ovaries; and
(ii) constructing a penis or some form of a penis in the person.
The spokesman added, "Section 40 of the MO requires that a marriage under the ordinance must be a formal ceremony recognised by law as involving the voluntary union for life of one man and one woman to the exclusion of all others. Such requirement is not affected by the administrative measures facilitating the marriage registration of transsexuals."
The spokesman said, "Regarding comments made by the CFA in the judgment on problems facing transsexuals in other areas of law and treatment in these areas of persons who have not received any or full SRS, they involve complicated legal, medical and social issues, carrying wide-ranging policy implications. An Inter-departmental working group on gender recognition (IWG) led by the Secretary for Justice was established on January 13, 2014 to consider legislation and incidental administrative measures that may be required to protect the rights of transsexual persons and to make such recommendations for reform as may be appropriate."
The views expressed at the LegCo Bills Committee on matters relating to gender recognition will be referred to the IWG for follow up.
Ends/Wednesday, July 16, 2014
Issued at HKT 12:30
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