Hong Kong plays transgender catch-up
By Kent Ewing
HONG KONG - In the biggest challenge yet to traditional Chinese values about
sex in this city of 7 million people, a male-to-female transsexual is suing the
government for the right to marry her male partner. Moreover, because the
plaintiff makes such a compelling case, traditionalists find themselves on the
legal defensive.
No matter the ultimate ruling in this unprecedented courtroom drama, it is
another indication of how attitudes toward sex and sexual orientation are
changing in Hong Kong and all over Asia. Such a conjugal union is already
legally sanctioned in Singapore, Japan and South Korea - and even in some
places on the Chinese mainland.
From a transgender perspective then, Hong Kong is playing catch-up. For
gay-rights activists, increasingly assertive in the city as well, the case also
bears watching. But, in the end, the
plaintiff's persuasive legal arguments may hit an impenetrable wall of
Confucian conservatism in a classic conflict between the law and the prevailing
morality of those living under it.
The complainant, who has been granted anonymity, underwent
government-subsidized sex-change surgery in a public hospital. Her lawyer,
Michael Vidler, describes his 20-something client as someone who for years
tried government-funded gender therapy before opting for surgery. His argument
is as simple as it is cogent: a government that funds both the therapy and
surgery should then recognize and honor a transsexual's new identity.
But when Vidler's client and her partner applied for a marriage license two
months ago, Hong Kong's Registrar of Marriage refused the application because
Hong Kong law does not allow same-sex marriage or, the registrar contends,
recognize changes in gender.
The registrar's refusal to recognize the changed gender of a transsexual is, it
seems, rooted in another of the city's laws: the Births and Deaths Registration
Ordinance, which prevents a person from changing his or her sex on a birth
certificate. To complicate matters further, the Immigration Department accepts
applications for changes related to a person's identity, including gender
changes, on Hong Kong identity cards and passports.
Vidler maintains that the government "has disregarded the gender therapy,
ignored the reassignment surgery" and thus deprived his client of her civil
rights under Hong Kong law.
Remarkably, the city's High Court, which only a few years ago almost assuredly
would have dismissed out of hand his request for a judicial review of the
registrar's decision, accepted the case. While that is in no way an indication
that Vidler and his client will win, it is nevertheless a notable development
in jurisprudence in Hong Kong - a city that, 12 years after the handover from
British to Chinese rule, still takes pride in its independent judiciary and its
support of individual rights. Those rights are enshrined in Hong Kong's
constitution, called the Basic Law, negotiated by the British and the Chinese
prior to the handover.
The High Court's decision is also a reflection of how attitudes toward sexual
orientation in Hong Kong, still predominantly conservative, are gradually
changing. The city witnessed its first official gay-pride parade last year,
with 1,000 demonstrators stopping traffic in the streets to roll out a huge
rainbow-colored flag symbolizing their cause.
Hong Kong has never outlawed homosexuality outright. A law stipulating the
legal age of consent for heterosexual sex as 16 but prohibiting sodomy until
the age of 21 was struck down by the High Court in 2005. The Hong Kong
government promptly denounced the ruling and launched an appeal, which failed.
Last year, Hong Kong's mini-parliament, the Legislative Council, unanimously
passed the city's first anti-racism law, but there is still no legal protection
against discrimination based on sexual orientation. Earlier this year, however,
after much wrangling, the council did agree to include same-sex couples in an
amendment to an ordinance on domestic violence, although Secretary for Labor
and Welfare Matthew Cheung Kin-chung was quick to point out that the amendment
does not amount to recognition of gay marriage.
What the secretary was loath to admit is that values are shifting in Hong Kong
and officials are struggling to stay ahead of the curve.
Similar and even bigger shifts are occurring in other parts of Asia. For
example, while transsexual unions are still not legally recognized in Thailand,
the country has become the world capital for sex-reassignment surgery and also
hosts a transsexual beauty pageant.
In India, Ippadikku Rose, a talk show with a transgender host, has
attracted international attention. The show - hosted by a male-to-female
transsexual who calls herself Rose and broadcast by Vijay TV in the southern
state of Tamil Nadu - is known for tackling traditionally taboo subjects such
as gay rights, prostitution and sexual harassment. Transsexuals, known as hijras,
are still largely shunned in India, but Rose's show has received a positive
response in the land of the Kama Sutra.
Although it is a fact not well known, transsexuals have been tying the marital
knot in China for more than 10 years. A transgender marriage in southwestern
Sichuan province even received sympathetic treatment by state media, as did an
attempt by transsexual Chen Lili to enter the province's regional competition
for Miss Universe. Chen was allowed to show off her comely figure in the
bathing-suit competition but was barred from further rounds of the contest
because she was not born a woman.
Another Chinese transsexual, Han Bingbing, is using her blog to solicit offers
of marriage from around the world. The source of this story is none other than
the website of the People's Daily, the official mouthpiece of the Chinese
Communist Party.
So far, according to the article, Han has yet to find her soul mate.
Kent Ewing is a Hong Kong-based teacher and writer. He can be reached at
kewing@hkis.edu.hk.
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