W v. THE REGISTRAR OF MARRIAGES

FACV No. 4 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 266 OF 2010)

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ORDERS AND COSTS

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Chief Justice Ma and Mr Justice Ribeiro PJ:

1.  When the Court handed down judgment on 13 May 2013, the parties were, at their request, afforded the opportunity to make further submissions as to the terms of the declaration to be granted and whether it should have immediate effect.

2.  At the same time, the Court indicated that subject to any modifications which may be warranted in the light of such submissions and subject to the question of costs, we would make the following Orders, namely:

(a)   That the appeal be allowed;

(b)   That a Declaration be granted that, consistently with Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights, section 20(1)(d) of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery;

(c)    That a Declaration be granted that the appellant is in law entitled to be included as “a woman” within the meaning of section 20(1)(d) of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance and is accordingly eligible to marry a man;

(d)   That the Declarations in paragraphs (b) and (c) shall not come into effect until the expiry of 12 months from the date of this Order.

3.  Submissions have now been received from the parties.  We shall deal first with the proposed orders set out above.

The proposed orders

4.  In the initial submissions lodged, the Registrar indicated that he is agreeable to such orders.  In her initial submissions, the appellant sought modification only of the proposed Order suspending the Declarations for 12 months.  It was submitted on her behalf that the period should be restricted to the minimum possible, consistent with the Court’s objective of giving the legislature an opportunity to address the areas highlighted in the judgment.  It was argued in particular that:

“... none of the issues for legislative consideration could form a basis for denying the appellant the right to marry which as been recognized by the Court: she is a post-operative transsexual, she was not previously married, and her partner is aware of her history...”

5.  In a reply lodged by the Registrar, it was accepted that the suspension should not be longer than necessary but submitted that the period of 12 months is not at all beyond what is necessary.  It was pointed out that any corrective enactments to render the impugned provisions constitutional, would require the Government and Legislature to consider issues significantly broader than those arising specifically in relation to the appellant, having a possible impact on the institution of marriage and beyond. It was indeed submitted that a 12-month suspension may be optimistic taking into account the various stages of the legislative process that would have to be gone through.  The Registrar added that out of an abundance of caution, he would ask for liberty to apply in case for good reason, more time is needed.

6.  In our judgment, the proposed orders set out in paragraph 2(a) to (d) above should now be made as final orders of the Court, with the addition of a direction that the parties be at liberty to apply in relation to the period of suspension. 

7.  We accept that the suspended Declarations have ramifications going beyond the specific circumstances of the appellant, making it desirable that the Government and Legislature be afforded a proper opportunity to put in place a constitutionally compliant scheme capable of addressing the position of broader classes of persons potentially affected.  We consider the 12-month suspension appropriate.  While we are prepared to grant the parties liberty to apply in relation to that period, we should make it clear that it must not be assumed that any application for an extension would be viewed favourably in the absence of compelling reasons.

Costs

8.  The appellant seeks an Order that the Registrar pay her costs of and occasioned by the proceedings here and below (including the costs of her present written submissions) with a certificate for three counsel throughout; and that her own costs be taxed in accordance with the Legal Aid Regulations. 

9.  The Registrar does not oppose the certificate for three counsel but submits that the appellant should be deprived of 50% of her costs at all levels to reflect her failure on the construction issue.

10.  We do not think that there is any justification for depriving the appellant of any part of her costs.  The construction and constitutional issues were intrinsically linked.  The Court had first to decide what, on their true construction, the impugned provisions meant.  Only then could the Court decide whether and how any issue as to their constitutionality required to be determined.  We would therefore accede to the appellant’s submission as to costs.

Orders

11.  We would accordingly make the following Orders in disposing of this appeal, namely:

(a)   That the appeal be allowed;

(b)   That a Declaration be granted that, consistently with Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights, section 20(1)(d) of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery;

(c)   That a Declaration be granted that the appellant is in law entitled to be included as “a woman” within the meaning of section 20(1)(d) of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance and is accordingly eligible to marry a man;

(d)   That the Declarations in paragraphs (b) and (c) shall not come into effect until the expiry of 12 months from the date of this Order;

(e)   That the parties have liberty to apply in relation to the period of suspension of the Declarations referred to in the preceding paragraph; and

(f)    That the Registrar pay the appellant’s costs of occasioned by the proceedings here and below (including the costs of her written submissions) with a certificate for three counsel throughout; and that her own costs be taxed in accordance with the Legal Aid Regulations.