I’m still quite obsessed with this newspiece and silly me forgot to check The Standard — the free English language newspaper given out by MTR entranceways and other public spaces throughout many gweilo-heavy districts, where a better article expounding on the HKSAR’s position echoing some of the arguments I thought I overheard on the news last night was published:
According to the article, “The [Government] barrister said a person who has undergone sex-change surgery is not commonly called a man or a woman, but a transgender.” As to this argument, I’d really like to see the Government’s support. My understanding was that transgendereds were identified by their “new” sex, and that the term “transgender” was really used to distinguish that they had once been the opposite sex, although they now were not. I’d say that when a transgendered person walks down the street, we commonly decide “man” or “woman” first, then possibly “transgender” next.
The article also states that the Government further argued that “marriages may only be consummated through sexual intercourse between a man and a woman” according to judicial precedents both in Hong Kong and England. I didn’t think that a transgendered person could not have sexual intercourse. Perhaps the ability to reproduce might arise, but such is the case even with so-called ordinary heterosexual married couples. Or am I confused over the definition of “sexual intercourse.”
A quick google define search does yield several variations — from “the act of sexual procreation between a man and a woman” requiring “orgasm” and “ejaculation” (now that’s a tall order that definitely does not always happen between a man and woman!) via wordnetweb.princeton.edu/perl/webwn to “copulation or coitus,” where “[t]he two entities may be of opposite sexes or not”, according to good ol’ wikipedia,or as broad as “[s]exual interaction, usually involving genital and/or anal and/or oral penetration, between at least two organisms” a la wiktionary.org.
I wonder what the legal definition of “sexual intercourse” is. I’d guess it has been defined in some divorce or annulment proceedings.
And as I suspected, I did hear a reproduction argument. According to The Standard article, the barrister for the Government “argued that marriages and families have long been considered inseparable and that offspring are a core part of marriages.” But even so, the ability to reproduce has never been a limitation on the right to marry, and the inability to naturally reproduce most certainly does not infringe on a married couple’s ability to have offspring.
So I’m obviously still not convinced, especially in light of the fact that the HKSAR has indicated a willingness to acknowledge the plaintiff’s changed gender by giving her a new resident ID card evidencing her new gender. But the Government’s counsel said that in spite of this change, “it does not follow that they have a right to marry a partner of genetically the same sex.”
It makes no sense to me that the Government can acknowledge someone is a woman or man in the one instance and not in the other. If sex is now going to be defined by genetics, then 1) the Government should not be inconsistent about it and 2) isn’t there a whole class of individuals who are of ambiguous gender (hermaphrodites or those who were born with two sex organs and had a gender decision (sometimes incorrectly) made by the doctor at birth)? What then?
I’ll keep you posted…