Marriage (Amendment) Bill 2014 : Our Duty to Uphold the Rule of Law  

Marriage (Amendment) Bill 2014 :

Our Duty to Uphold the Rule of Law

Secretary for Security - T K LAI

The issue before the Court of Final Appeal (CFA) in the W Case is whether the appellant W, a male-to-female transsexual person who has received full sex reassignment surgery (SRS), should be identified in the sex at birth or the reassigned sex during marriage registration? The CFA ruled that transsexual persons who have received full SRS should be treated as persons of their reassigned sex and therefore eligible to marry an opposite-sex partner.

Though not addressed in the W case, the CFA raised a series of problems and gender recognition issues facing transsexual persons (including those who have not received full SRS) and recommended that the Administration and the Legislature consider how best to handle them.

The Government attaches great importance to the decision and recommendations of the CFA and has taken proactive follow-up actions on two fronts in parallel.

First, with the CFA judgment, it is the duty of the Administration to introduce the Marriage (Amendment) Bill 2014 (the Bill) to align the statute law with the judgment so as to afford the public a clear understanding of the right of transsexual persons who have received full SRS to marry. This is an important principle of the rule of law.

Second, in response to the CFA's recommendations, the Government set up an Inter-departmental Working Group on Gender Recognition (IWG) led by the Secretary for Justice earlier this year to identify relevant legislative provisions and conduct studies on schemes and laws in overseas jurisdictions. The IWG will listen to expert (such as legal and medical) opinions and consult the public. An informed community of the issues involved is conducive to the forging of societal consensus. The IWG has already held several meetings.

Despite the complexity of matters, we have moved in full swing since handing down of the judgment and completed such groundwork within six months. We briefed the Legislative Council (LegCo) Security Panel on our work plan this January, and introduced the Bill shortly thereafter.

The relevant Bills Committee of LegCo has already held five meetings to discuss the Bill and received deputations from the public. The following clarifications may assist all parties better understand the contents and purpose of the Bill.

Heterosexual institution of marriage unfettered

First, there are views against the Bill on grounds that they oppose same-sex marriage. As plainly stated by the CFA, nothing in the W Case concerns same-sex marriage. W is a transsexual person. Persons suffering from transsexualism are distressed by the incongruity between their anatomic sex and their self-identified sex and therefore wish to make their bodies as congruent with the opposite sex as possible. In this light, transsexualism should be distinguished from homosexuality.

Section 40 of the Marriage Ordinance stipulates that every marriage under the Ordinance shall be a formal ceremony recognised by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others. Such provision will not be affected by the passage of the Bill. That W, after receiving full SRS, is entitled to be treated as a "female" person and therefore eligible to marry a male person is completely in line with the existing institution of heterosexual monogamous marriage.

Surgery proven as an effective cure for transsexualism

Second, it is said that the "requirement" of full SRS in the Bill would have the effect of compelling transsexuals to undergo unwanted surgeries, amounting to "torture". This argument is simply flawed and puts the cart before the horse. We must set the record straight.

As explained by Dr Albert Yuen, the SRS surgeon in the Hospital Authority, in order to treat their persistent mental distress arising from the incongruence between their minds and their bodies, it is medically necessary to perform SRS for people with transsexualism. Before surgery, they have to be assessed by psychiatrists and clinical psychologists for a substantial period of time. They would receive hormone of the opposite sex to make sure they accept the body changes. Besides, they should feel comfortable with the at least 12-month real-life experience in the opposite sex. Surgeons would clearly explain to patients the consequences, risks and impacts of the surgeries, which would proceed only with patients' consent after thorough consideration. Almost all of those who received SRS no longer suffered from the anxiety and distress afterwards.

It is clear that to persons suffering from transsexualism, SRS is a means to treat their anxiety and distress. Indeed, SRS brings them permanent relief for their mental distress. How could this be coined as torture?

Whether persons who have not received full SRS may marry in the sex of their choice is indeed a gender recognition issue on which the CFA neither addressed nor decided in the W Case. Given the ramifications of the issue, there is no basis for the Bill to address such question, which would be examined by the IWG. The criticisms that the Bill was restrictive in scope, harsh and not able to address the needs of other transgender persons are therefore entirely misconceived.

What the rule of law requires

Lastly, some query the need for the Bill if W could marry in accordance with the CFA judgment when the CFA Order comes into effect anyway.

I must reiterate that following the CFA's final judgment, it is the duty of the Administration to update the relevant legal provisions as soon as possible, in the spirit of the rule of law and good governance. Not only does it demonstrate our respect for and efforts to implement the CFA judgment, but it also brings clarity to the Marriage Ordinance by clearly reflecting the judgment in statute law. Protection of the marriage rights of transsexual persons who received full SRS by clear legal provisions cannot be achieved otherwise (such as not amending the law at all, or providing in the law that the sex of transsexual persons would be determined under administrative guidelines). The amended Marriage Ordinance would assist marrying parties, civil celebrants and the public at large to understand the legal requirements, thereby reducing confusion and unnecessary disputes.

The sole purpose of the Bill is to reflect without more what has been irreversibly decided by the CFA in our legislation. Nothing in the Bill relates to same-sex marriage. The Administration will continue to strive to explain the Bill to LegCo Members and the public, with a view to seeking its timely passage before the CFA Order comes into effect.

30 May 2014