The Issue of Transsexual Marriage in Hong Kongs State Law - Term Paper Example

W & Registrar of Marriages Hong Kong’s law making body had its nail biting observation of a trial at the court over the issue of transsexual marriage crises recently. While post operative male-to-female transsexual man’s or female-to-male transsexual woman’s issue has been treated on par with the constitutional provisions which determines that anatomically altered sexuality of a person does not constitute to legitimate sexuality with entitlement of marital rights according to the laws in Hong Kong. Sex reassignment surgeries (SRS) are on the rise in the country as it is similar in almost every country in the world. At this wake, it is disputable to fix the clash between legal and logical spheres of the case that relates to the right of a person to perceived sexuality. This case takes into consideration the implication of the verdict on the social spectrum of the transsexual with regards to his/her legal rights as a spouse especially in immigration apart from considering this as an issue of an individual’s intellectual right to choose a life of his desired sexuality. A large majority of the people are able to identify the gender of a person from the secondary sexual indicators on his anatomical frame such as the body hair, breasts, voice or the size of the body. Exploration of the body’s primary gender detective indications like the DNA structure where the chromosome pattern reads XX for female and XY for male is necessary only for the forensic information on issues related to investigations absolutely legal. The issue arises on the conflict between the biological sex of a person and his psychological sex, which drives him on the transsexual way. Procedural history of the issues taken at the courts of law in various prominent countries exemplifies the legal disadvantages of undergoing a treatment aimed at changing the biological sex in pursuit of obtaining the psychological sex. WHO considers the case of transsexual surgeries as Gender Identity Disorder (GID), (which is red with provisions of Gender Dysphoria in UK). However, the term is different from a conglomerate appearance disparity resulting in identification of the gender of a person by appearance inflicted by cross-dressing, transgender behavior or distinguished congenital conditions. Hormonal treatments targeting the sexuality alteration of individuals are scanned and monitored by the government of Hong Kong with several programs to deal with the GID issue. As the hospitals are surgically equipped with provisions for transsexual surgeries, they discharge the patient with a post operative gender change certificate for the social validity. But the legal provisions of the government takes a complex way to fix his gender change in the passport and national identity card of the person with an argument that the original gender has to be confirmed as on the time of birth. This argument is underlined by the provisional disallowance of any new technically altered gender for identification of the sexuality status of the person as per law. Anatomical sex is superior to psychological sex in terms of law. Therefore an alteration employed in the sexuality of a person with intent to satiate his desires of being the opposite sex becomes a matter out of any legal frame. Thus SRS can be considered as a personal risk undertaken by the individual against the normality of nature’s distribution to his gender which is prominently the basis for gender identification by the law. Hence any marriage or conjugal relationship becomes null and void at the hearing of a case on the petition to claim matrimonial rights after the decease of either spouse. Moreover, the terms ‘man’ and ‘woman’ are legally and anatomically defined by the constitutions of almost every country; therefore consummative challenges inflicted by SRS cannot form part of genetic disorders as malfunctioning of genitals and improper appearance of secondary sexual features of people. The law of Hong Kong, UK, Argentina and every other country suggests that marriage is a contractual bond between two natural individuals of perfect opposite sexuality inherited by birth which supports the operation of a normative life as guided by the society, which shall only be entitled to enjoy the rights of marital recognition under any provision of the law. When marriage is considered as the legal unity of two individuals to lead a sexually organized life, it is essential to have adherence to the provisions of law of the nation. There are several resemblances of the legal norms of the two countries, Hong Kong and the UK in terms of marriage acts. As marriage is a legal contract, it has to fulfill the clauses relating to the conditional applications of the law on every aspect with gender taking no exemption. Legality of the identification of gender of people different from the normal terms like ’sex’ ‘male’ and ‘female’ becomes tough as the provisional assignments of an amendment in the societal view of the issue is far remote in many civilized communities. Inclusion of a person suffering from transsexualism with disinterest towards cross dressing adds to the worry of the society. When such people undergoes SRS and get changed, it becomes difficult for him to find a place in the gender specified society. As reverse surgery is not easy in many of the cases because the natural organs once removed cannot be implanted. This causes the person to suffer greater grief during his post operative unsatisfactory acquired life in the society. For the benefit of the case mentioned in the argument, right to marry is guaranteed under article 37 of the Basic Law and article 19(2) of the Hong Kong Bill of Rights. Interpretations of the provisions of marriage law of Hong Kong with those of European Court of law suggest that a provisional consent can be granted on the issue of same sex marriage as per the article 37. The applicant is a female, who has undergone SRS and chose her desired male sex with intent to marry a female of her choice at one context and at another context, a male changes his anatomical features to acquire his psychological gender to get the approval of his marriage with a person of his desire. These two issues have to be treated with equal weight of legality. However, in the constitutional context of the applicants plead for a grant of her right to marriage; it is the court that should decide the legality of the marriage as to belong to same-sex marriage or transsexual marriage. Legitimacy of a person’s social identity as of a recognizable gender is sometimes challenged when the legal relaxation of the gender transformation is prevailed in some countries. There can be chances of people undergoing SRS after having committed serious criminal offenses. Identification of their gender becomes difficult for the investigative teams and they can escape the clutches of law with their amazingly new identity change. There can also be proportionate indicatives of people evading past marital records during their search for a new married life without the information and consent of the former partner by undergoing transsexual surgeries. However, the legal implication of the issue of somebody’s optional movement for selective gender transition becomes a problem to any court of law as it needs the amendment in the provisions related to identification of sexuality and determination of gender for the provisional agreement for a marital relationship. Civil Partnership Act 2004 of UK ensures the legal rights of partners bound by marriage on production of a certificate of identification of gender for the association of legal provisions for conjugal rights. In America, Brazil, Argentina, New Zealand and Australia, transsexual identity is legally approved and the partners involving in the marital contract are entitled to obtain a certificate of post operative gender which can be attached to their birth certificate for the amendments in the provisions of gender specification in their national identity card and passport. In some Asian countries like Japan, South Korea, Malaysia and Singapore, gender change is permissible and the post operative transsexual can choose a partnership life with the approval of marriage regulation laws. From the light of observations made on the narrative indices and detailed interpretation of legal implications of the GID issues mentioned in the case study it is understood that the legal provisions of the contractual relationship, termed as ‘marriage’ should have a uniform procedure to follow. Since the conjugal unity of ‘man’ and ‘woman’ is desirably meant for the happy life and reproduction of identical offspring, it should feature natural pattern of relationship as a generalization. However, intervention of new technologies to administer the challenges against nature’s choice comfortably alters the fundamental belief that marriages are the social umbrellas under which two individuals of opposite sex live together and bring forth their children. On the contrary, it has to be admitted that if the law provides for the change of a person’s gender from anatomical to psychological; it must also ensure him provisions for legality of his post operative marriages as per his desire because, marriage is a fundamental right when he is of a desirably able gender irrespective of the person’s reproductive ability. Read More