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Hong Kong Plays Transgender Catch-up

in HONG KONG, 17/11/2009

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.

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
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.

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