Abstract
This paper looks at transgender identities and the law in the context of marriage in common law jurisdictions. It particularly focuses on the nature and sources of authority over word meaning as well as the role of language and definition in classifying transgender individuals into a legal category. When it comes to the legal question of who may marry whom, and what the terms “man” and “woman” actually refer to, there is no statutory definition of the terms “man”, “woman”, “male” and “female”. This has put the onus on judges, especially those who needed to decide whether a transgender person can marry in his/her affirmed sex, to interpret these terms. Two lines of cases in transgender jurisprudence are examined so as to have a close study of how the courts construed these terms and classified transgender people into a category. The first concerns United Kingdom cases, namely Corbett v Corbett (1971), Bellinger v Bellinger (2003) and the Hong Kong case W v Registrar of Marriages (2010), (2011) & (2013). The second consists of Australian cases such as Secretary, Department of Social Security v State Rail Authority (1993) and Re Kevin (2002). This paper discusses these issues by analyzing and comparing different cases in transgender jurisprudence as well as examining how these issues play out in contemporary Hong Kong.
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Notes
See Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130, p. 130 where the court stated that "marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others" [20].
Article 37 of the Basic Law reads: "The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law" while Article 18 (2) of the Hong Kong Bill of Rights which is based on article 23 of the ICCPR reads: "Rights in respect of marriage and family: The right of men and women of marriageable age to marry and to found a family shall be recognized".
New Shorter Oxford English Dictionary (1983) defined "male" as "of, pertaining to, or designating the sex which can beget offspring".
References
Aprill, E.P. 1998. The law of the word: Dictionary shopping in the Supreme Court. Arizona State Law Journal 30: 277–336.
Bolin, A. 1994. Transcending and transgendering: Male-to-female transsexuals, dichotomy and diversity. In Third sex, third gender: Beyond sexual dimorphism in culture and history, ed. G. Herdt, 447–485. New York: Zone Books.
Cameron, D., and D. Kulick. 2003. Language and sexuality. Cambridge: Cambridge University Press.
Currah, P. 2006. Gender pluralisms under the transgender umbrella. In Transgender rights, ed. P. Currah, R.M. Juang, and S.P. Minter, 3–31. Minneapolis: University of Minnesota Press.
Docter, R.F. 1988. Transvestites and transsexuals: Toward a theory of cross gender behavior. New York: Plenum.
Fish, S. 1989. Doing what comes naturally: Change, rhetoric, and the practice of theory in literary and legal studies. Oxford: Clarendon Press.
Hutton, C. 2008. Language, meaning and the law. Edinburgh: Edinburgh University Press.
Hutton, C. 2011. Objectification and transgender jurisprudence: The dictionary as quasi-statute. Hong Kong Law Journal 41: 27–47.
Kulick, D. 1998. Travesti: Sex, gender, and culture among Brazilian transgendered prostitutes. Chicago: University of Chicago Press.
Meyerowitz, J. 2002. How sex changed: A history of transsexuality in the United States. Cambridge, MA: Harvard University Press.
Rynd, A.J. 1991. Dictionaries and the interpretation of words: A summary of difficulties. Alberta Law Review 28: 712–717.
Sharpe, A. 1996. Judicial uses of transsexuality: A site for political contestation. Alternative Law Journal 21: 153–172.
Sharpe, A. 2002. Transgender jurisprudence: Dysphoric bodies of law. London: Cavendish Pub.
Solan, L. 1993. The language of judges. Chicago: University of Chicago Press.
Towle, E.B., and L.M. Morgan. 2006. Romancing the transgender native: Rethinking the use of the “third gender” concept. In The transgender studies reader, ed. S. Stryker, and S. Whittle, 666–684. New York: Routledge.
Valentine, D. 2007. Imagining transgender: An ethnography of a category. Durham: Duke University Press.
Cases Cited
Bellinger v Bellinger [2002] Fam. 150.
Corbett v Corbett [1971] P 83 (HL).
Gompers v. United States [1914] 233 U.S. 604.
Hyde v Hyde and Woodmansee [1866] LR 1 P & D 130.
Lyng v. Northwest Indian Cemetery Protective Ass’n [1988] 485 U.S. 438.
Re Kevin [2001] 165 FLR 404.
Secretary, Department of Social Security v State Rail Authority [1993] 43 FCR 288.
W v Registrar of Marriages [2010] HCAL 120/2008.
W v Registrar of Marriages [2011] CACV266/2010.
W v Registrar of Marriages [2013] HKCFA 38; FACV4/2012.
Acknowledgments
I would like to thank Professor Christopher Hutton for his invaluable comments on and tremendous support for this paper.
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Tao, K.W.Y. Exploring the Sources of Authority Over the Word Meaning in Transgender Jurisprudence. Int J Semiot Law 29, 29–44 (2016). https://doi.org/10.1007/s11196-015-9433-x
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DOI: https://doi.org/10.1007/s11196-015-9433-x