This post is incredibly late, since the decision was published in (I think) October 2010, and I received a copy of Hong Kong Lawyer, the Law Society’s monthly journal, featuring an article on the outcome back in February! For those of you who don’t know what I’m yammering about, I posted on this piece of Hong Kong legal news here and here and here.
At any rate, I hope you will take a look at the Hong Kong Lawyer article. Two law professors from the Chinese U. take pains to explain all the arguments presented for denying W, the post-operative male to female transsexual, her right to marry her male partner.
As these authors sum it up, the Court felt it was unable to rule in favor of W because it would in a sense be opening the floodgates to same-sex marriage (which those of us from the U.S. already realize causes enough headaches). In support of its homophobia, the Court basically held that sex is determined only at birth, and rejected any of the precedent that evaluated sex on any amalgam of data, or research in support of the transgender process.
To make matters worse (in my opinion), the Court said it was only interpreting the Marriage Ordinance to define marriage as a “heteronormative concept” of one woman and one man uniting for life excluding all others and fulfilling the Christian purposes of marriage, namely procreation and mutual support.
Obviously many aspects of this is a bit laughable in light of the state of modern marriage’s reality, and as discussed in the article, with recent recognition of prenuptial agreements and no-fault divorce in Hong Kong, it seems like weak reasoning. And yet that is what it is!
So, like with many U.S. states, the matter of marriage involving anything other than one and one woman, likely needs to be legislated.