Wednesday, April 9, 2014, 09:40
Tough barriers still exist for transgender people to marry
By Nigel Collett

Hong Kong’s transgender men and women will soon have the right to marry, thanks to the Court of Final Appeal’s ruling in the Ms W case. The government did not want this, and fought it at every stage. Initially, it did so administratively by refusing to alter a birth certificate to show the new gender. It thus prevented marriage, which is based on the birth certificate, not the ID card (which was altered). The government fought the judicial review brought by Ms W three times: in the Court of First instance, then the Court of Appeal, and finally in the Court of Final Appeal, paying large sums for an English barrister to be flown in to represent it on each occasion. 

Tough barriers still exist for transgender people to marryWhat was at stake here was the lifelong denial of marriage to transgender people. Consider how this works. Years of counselling and therapy, including hormone treatment is required. This is then followed by rigorous assessment by a panel of government medical professionals before the official re-assignment of gender. In most cases, a newly re-assigned man would probably wish to marry a woman and a newly re-assigned woman would probably want to marry a man. It may surprise, but most transgender people are not homosexual. But a transgender man whose birth certificate shows he was a woman at birth cannot marry a woman, as that would seem to involve a same-sex marriage. For a transgender woman the reverse is true. Here lies the misconception that transgender marriage is really about same-sex marriage.

This was why the government fought so hard. It became clear as the arguments were presented in court that it had little interest in the effect its actions were having upon the lives of the handful of transgender men and women whose right to marry it was denying. Instead, the government was driven by the misguided fear that transgender marriage would open the door to same-sex marriage, and that was something they were determined to avoid at all costs. To the government (though thankfully not to the Court of Final Appeal), the cost, the perpetuation of a lifetime of inhuman injustice for some of its citizens, was one worth paying.

Now the government is doing it again. Faced with the legal requirement to amend the Marriage Ordinance to allow transgender marriage, the government has determined to restrict this right to the smallest possible number. They have done this by restricting the right to marry to those who have undergone the deeply invasive surgery to remove all their old sexual organs and construct new ones by plastic surgery. This surgery is potentially dangerous and many transgender people fear submitting their bodies to it.

The surgery, to be blunt, is castration, and the government is demanding the prior mutilation of any transgender person who wants to marry.

But if there is no operation, how can anyone tell that a person is genuinely transgender? Actually, this is a lot simpler than it sounds. Transgender people are only eligible for surgery in Hong Kong when, after a very long, arduous process lasting several years, they are certified by the panel of experts appointed by the government. The certificate declares that a person may have their gender re-assigned. It is issued without benefit of surgery and without the demand that surgery be done. This certification alone, therefore, will suffice for marriage.

It is needless to point out, perhaps, that not requiring an operation is not only the humane thing to do but also the cheapest. The government is attempting to insist on a policy that will involve costly surgery at public expense for many who do not want or need it.

We must ask of government why, then, it is writing this inhumane request into law? Can it just be that, having three times dug in its heels, the government is in a mind to make what it is forced to enact as hard as possible? The government has not justified its stance, so we are left to postulate this, or to look for more insidious reasons, such as the influence of the socially conservative Christians within government ranks who continue to oppose any advancement of the rights of lesbian, gay, bisexual and transgender (LGBT) people.

There is disturbing evidence that the latter may indeed be the cause. Fundamentalist Christians are rallying their supporters in LegCo to oppose any removal from the amendment of the provisions for compulsory surgery. These “Christians” are, it seems, determined to exact their pound of flesh, in this case the eviscerated gonads of people some of them seem to regard as incarnations of evil.

There has to be a better basis for public policy than this revolting medieval superstition. The government should explain itself to remove the fear that its policy has any religious motivation, then amend the bill to remove its requirement for surgery.

The author is Hong Kong correspondent for the Singapore-based LGBT online newsletter fridae.com. In 2008 he was appointed English secretary of the Pink Alliance, Hong Kong’s largest grouping of LGBT organizations and he remains prominent in LGBT activism in that post.