Silent changes: transsexuals' right to marry in China's Mainland and Hong Kong

• Author: GUO Xiaofei, ZHU Jingshu
• Pages: 433-444

FRONTIERS OF LAW IN CHINA

VOL. 11 SEPTEMBER 2016 NO. 3

DOI 10.3868/s050-005-016-0024-3

FOCUS ONE

LGBTI RIGHTS AND LEGAL REFORM: A COMPARATIVE APPROACH

SILENT CHANGES: TRANSSEXUALS’ RIGHT TO MAR RY IN CHINA’S MAINLAND

AND HONG KONG

GUO Xiaofei∗, ZHU Jingshu∗*

Abstract In comparison to the arduous process of rights advocacy in Hong Kong,

transsexuals in China’s mainland achieved their right to marry via some “silent changes”:

there was no legal activism from transsexual communities, no debates or hearings in the

legislature, and no landmark judgments made by the judiciary. From a perspective of

comparative law, this article attempts to analyze the legal changes regarding

transsexuals’ right to marry in China’s mainland in light of the struggles in Hong Kong.

It endeavors to discuss to what extent the seemingly “smooth” and “unintended” way of

opening up marriage to transsexuals in China’s mainland could be beneficial to trans

rights and equality in general.

Keywords transgender rights, sex reassignment surgery, same-sex marriage, comparative

law, colonization of lifeworld

INTRODUCTION .................................................................................................................... 433

I. TRANSSEXUALS’ RIGHT TO MARRY AND THE FEAR OF SAME-SEX MARRIAGE ....... 435

II. THE INFLUENCE OF CASE LAW SYSTEM ON HONG KONG ...................................... 438

III. THE COLONIZATION OF THE LIFEWORLD BY THE SYSTEM.................................... 440

CONCLUSION........................................................................................................................ 444

INTRODUCTION

This article is triggered by a court case in Hong Kong, namely, W vs the Registrar of

Marriages.1 W was born male, and was later diagnosed with gender dysphoria. In 2008,

she successfully transitioned via sex reassignment surgery, and accordingly, she changed

∗ (󲷂󰌨󳖳) Ph.D and Associate Professor, School of Law, China University of Political Science and Law,

Beijing 100088, China. Contact: bjhhxs@126.com

∗∗ (󰐆󳐮) Ph.D Candidate, Grotius Center of International Legal Studies, Leiden University, Leiden, the

Netherlands. Contact: zjs.jess@gmail.com

1 W vs the Registrar of Marriages [2013] HKCFA 39; [2013] 3 HKLRD 90; (2013) 16 HKCFAR 112;

[2013] 3 HKC 375; FACV 4/2012, available at http://www.hklii.hk/eng/hk/cases/hkcfa/2013/39.html (last

visited May 13, 2013).