TOWARDS GENDER
RECOGNITION
Dr Athena Liu
Associate Professor
Department of Law
University of Hong Kong
7 Sep 2013
Introduction
• Hong Kong legislations use the term “sex” “male”
“female” “man” “woman” and “gender”; not defined
• A person is assigned at birth in the binary world of “male” and “female” as
either = birth certificate
• X “unknown” “uncertain”
• Even Pre W v Registrar of Marriages: recognized as a person of the
acquired gender “for a whole range of purposes”
– required to use women’s toilets, changing rooms, women’s prison
– Obtain a new updated identity card
• Recent decision: the meaning of the words “woman” “female” - W v
Registrar of Marriages. The Court of Final Appeal recognised the right of
Ms W, a post-operative male-to-female transsexual (trans woman), to
marry her male partner
• All the judges agreed legislative reform on gender recognition would be
desirable
• Some consequential legal implications
Landmark decision : W v Registrar of
Marriages
• The Court of Final Appeal rejected Corbett
• In deciding whether Ms W qualifies as a “ woman” (and
entitled to marry a man), the law ought in principle to
consider all the circumstances relevant at the time of
marriage (biological, psychological, medical and social)
• The challenged statutory provisions (s 20(1)(d) of the
Matrimonial Causes Ordinance (Cap 179) and s 40(2) of the
Marriage Ordinance (Cap 181)) are to be read to include,
within the meaning of the words “woman” and “female”, a
trans person whose ‘gender has been certified by an
appropriate medical authority to have changed as a result
of SRS’
Gender Recognition –Legal
Requirements?
• no specific legal rule called “gender recognition rules”
• The identity card - legal identity document issued by
the Hong Kong Immigration Department - the
Registration of Persons Ordinance (Cap 177)
• holder’s name (in both Chinese and English), date of
birth, sex, and place of birth
• all persons aged 15 or over must carry it at all times;
offence to fail to produce proof of identity on demand
• ID daily life. e.g. exiting and entering into Hong Kong
via immigration control points, booking leisurely and
sporting facilities, banking, public library facilities, and
hospital admission
Updating gender info on Identity card
• Must report to the Immigration Department when the
submitted particulars in the identity card have become
incorrect (e.g. as in the case of a person who has
completed SRS)
• Failure to report corrections is an offence
• Accepting a letter from the Hospital Authority,
certifying that a person has completed SRS, as a basis
for issuing a replacement identity card
• Unlike the GRA, only one medical certificate is required
• No requirement that the person be unmarried
• No legal prohibition against a married
person undergoing SRS
LEGAL CHALLENGES AHEAD
• Time of gender recognition
– ID card? OR
– Gender certified by an appropriate medical authority to
have changed as a result of SRS?
• Gender recognition mechanism/relevant authority?
– Medical certification?
– change of info in ID?
• Gender recognition compulsory?
• Gender recognition of a married person
• Who qualifies as a “woman” or a “man” for marriage
(and for other purposes) --- Criteria for gender change
Gender recognition of a married
person
– Suppose H (a biological male) and W (a biological female)
married. W underwent and completed SRS.
• Husband (a trans woman) or wife (a trans man); de facto
same sex marriage (not the same as permitting same sex
marriage)
• No official statistics – anecdotal/ Number tiny
• Problems- Outside the purview of the law (widen legal
boundary including trans community into marriage corresponding narrowing of exclusionary boundary
needed)
– H dies intestate, normally wife entitles, BUT does “wife” include
W who is a trans man?
• Such a case to be sensitively accommodated?
Who qualifies as “a woman” or “a
man” for marriage
• The Court of Final Appeal rejected Corbett
• In deciding whether W qualifies as a “woman”,
the law ought, in principle, to consider all the
circumstances (biological, psychological, medical
and social)
• Ms W had a full SRS
• Less than full SRS - ought to qualify (trans man)
• Flexible + less importance of reconstructive
surgery and greater importance on the
psychological and social dimensions
Who qualifies as a “woman” or a “man” for
other purposes? Widow trans man
• Words “man” “woman” and “male” “female” = include a trans
person
• Other gender-specific terms?
– Husband/uncle/nephew/father (a trans woman)?
Wife/ daughter/aunt/mother (a trans man)?
• The Widows and Orphans Pension Ordinance - the widow of a
contributor is entitled to a pension upon death of the contributor.
– W (a biological female) marries H (a biological male). H dies and
W (H’s widow) becomes entitled to a pension. While receiving
the pension, W undergoes SRS and becomes a trans man.
• Hardship: sensitively be accommodated? The court may be asked to
decide
Parties of the opposite sex
• S2 of the Mandatory Provident Fund Schemes Ordinance,
Cap 485 (“MPFSO”)
• “Spouse” = in relation to a person, include “a person of the
opposite sex with whom the person is cohabiting in a bona
fide domestic relationship as man and wife”
• Juxtaposition of gender relationship - will not cover parties
in a de facto same sex marriage
– A (biological male) marries B (a female person). B becomes a
trans man. B would not qualify as a “spouse” because his
acquired gender is not of the opposite sex as compared to A.
• Comprehensive law reform (UK Gender Recognition Act
2004); integrating a trans person into the law in so far as it
is practically possible
Gender specific offences: law reform
recommended already
• Perpetrator/victim (including a trans man and trans
woman
• Ormrod J’s view (in Corbett) that a person with an
artificial vagina is legally incapable of sexual
intercourse
• Justice Bokhary disagreed
• Hong Kong Law Reform Commission’s Consultation
Paper on Rape and Other Non-consensual Sexual
Offences (2012)
• Implementation of recommendation: a person with
surgically constructed sexual organ be covered by the
law
Exception to gender recognition? Tsos ( 祖) and Tongs(
堂) and the Small House (丁屋) Policy
• These Tsos and Tongs are sometimes called Chinese customary
“trusts”. Both are ancestral land-holding for the worshipping of
ancestors and for the benefits of male descendants
• The beneficiaries are exclusively male from a certain ancestor
(male)
• The Small House Policy: male indigenous villagers aged 18 or above
descended through the male line from one of the recognized
villages in the New Territories may apply for building a small house
– whether a male person by birth continues to be regarded as such (post
SRS), and hence, continues to be entitled to a lifetime interest; and
– whether a male descendant born to a trans person (pre- or post SRS)
be regarded as a descendent “from the male line”.
• Customary law: male descendent refers to biological offspring,
lineage and pedigree –bloodline/patrialineal nature of traditional
Chinese society
Conclusion
• Comprehensive law reform –GRA
• Structural issues
–
–
–
–
–
time of gender recognition
gender recognition mechanism/relevant authority?
gender recognition being compulsory
gender recognition of a married person
who qualifies as a “woman” or a “man” for marriage
(other purposes)
• No easy task; golden opportunity to reassess existing
entrenched gender divide and achieve greater degree
of gender diversity/equality (inclusiveness)