The South China Morning Post lambasts the decision in an October 7th editorial
For critics of our judiciary who think
our court has been too willing to rule against the government on social issues,
Tuesday's judgment against a judicial review application by a transsexual woman
hoping to marry a man will go some lengths to reverse those misconceptions. Mr
Justice Andrew Cheung Kui-nang concluded that issues such as the definition of
marriage and the determination of one's gender are a matter for the legislature
and not the courts. Cheung's judgment is disappointing in that, despite having
expressed sympathy for the plight of transsexuals suffering prejudice and
discrimination, he did not cause any change to respect the rights of this
It is often argued that Hong Kong has a stable environment to exercise full democracy because of the independent judiciary and the rule of law. Majority rule is the preferred form of government, provided it can be checked by a robust judiciary safeguarding the rights of the minority. Cheung refers to this concept of majority rule, minority rights, but then says this was not a case of minority rights being restricted by the majority, but a case "to discover the present day boundary of the social institution of marriage as is understood by society or a majority thereof". Which seems to be a way of saying the majority view on marriage prevails, regardless of what minority rights in this area may be. Surely that means the court is effectively allowing the majority to determine restrictions on fundamental rights of the minority. He goes on to say that "the most important consideration" that led to his conclusion was the "the absence of sufficient evidence in the present case to demonstrate a shift [in the] societal consensus in present-day Hong Kong regarding marriage to encompass a post-operative transsexual".
It is true that there is no societal consensus over the status of transsexuals and their legal rights. The government and its doctors recognise that a man who has had a successful sex change should be identified as a woman. The government grants her a certificate, a new gender status on her identification card and her passport, but does not recognise that her sex has been changed in legal terms. Cheung remarks that a transsexual is still referred to as a "sex-changed woman" in Chinese, not just as a "woman", and therefore cannot be eligible for marriage between "man and woman".
This misses the point of this judicial review application. The applicant, born with the physical appearance of a man, felt she was a woman trapped in a man's body. She had a sex change precisely because she understands the institution of marriage between man and woman and now wishes to marry a man as a woman. She does not go around telling people: "I am a sex-changed woman". She has anonymity in these proceedings precisely because she wants to continue being recognised as a "woman" and not stigmatised as a transsexual. She merely hopes, like many other Hong Kong women, to marry the man of her choice, but, because of a government policy that identifies her as a woman but does not legally recognise her as a woman, she has been denied a right that the rest of Hong Kong enjoys. Does the lack of "societal consensus" justify a restriction of her rights?
As suggested, it is time for the government to spark further debate on issues of transsexuals and same sex unions. But if government consultation should result in the majority effectively restricting the rights of the minority, we expect the court to protect them. If we believe in majority rule, minority rights, we should have the courage to put it into effect.