The Appellant is a post-operative male-to-female transsexual person who has undergone sex reassignment surgery (“SRS”) at hospitals managed by the Hospital Authority in Hong Kong. She and her male partner wish to get married but the Respondent refused to celebrate their marriage, deciding that she does not qualify as “a woman” under the Marriage Ordinance (“MO”) and the Matrimonial Causes Ordinance (“MCO”). The Appellant brought judicial review proceedings to challenge that decision, contending that she ought in law to count as a woman for the purposes of marriage. She argued that (i) on a true and proper construction, the words “woman” and “female” in sections 21 and 40 of the MO include a post-operative male-to-female transsexual; and (ii) if not, these two sections are unconstitutional having regard to her right to marry under Article 37 of the Basic Law and/or Article 19(2) of the Hong Kong Bill of Rights (“HKBOR”) and/or her right to privacy under Article 14 of the HKBOR. Both the Court of First Instance and Court of Appeal dismissed the Appellant’s application. The Court of Final Appeal allowed the appeal by a 4:1 majority. The Court held that in enacting the MCO, the legislative intent was to adopt an English statute which endorsed the decision of the English court in Corbett v Corbett,holding that procreative intercourse was an essential constituent of a marriage at common law, and therefore that biological factors were the only appropriate criteria for assessing the sex of an individual for the purposes of marriage. The MO covered the same ground and was to be similarly interpreted. The Respondent was therefore correct in construing the relevant sections as excluding the appellant as a woman for the purposes of marriage. Article 37 of the Basic Law and Article 19(2) of HKBOR protect the right to marry. While the institution of marriage is necessarily subject to legal regulation, such legal rules must not be inconsistent with and operate so as to impair the very essence of that right. The Court noted that in present-day multi-cultural Hong Kong, the nature of marriage as a social institution had undergone far-reaching changes and the importance of procreation as an essential constituent has much diminished. In addressing the question whether a post-operative transsexual like the Appellant qualifies as “a woman” so as to be entitled to marry a man, it is contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable. The Court should consider all circumstances relevant to assessing a person’s sexual identity at the time of the proposed marriage, including biological, psychological and social elements and whether any SRS has occurred. In restricting the criteria for ascertaining a person’s gender to merely biological factors, the Court held that the relevant provisions in the MCO and MO are inconsistent with and fail to give proper effect to the constitutional right to marry. In denying a post-operative transsexual woman like W the right to marry a man, those provisions realistically preclude her from marrying at all. They therefore impair the very essence of W’s right to marry. As such, the Court held that the provisions are unconstitutional. It is unnecessary to consider whether W’s right to privacy under Article 14 of HKBOR may support her constitutional right to marry. The Court further held that whether a consensus regarding a transsexual’s right to marry exists among the people of Hong Kong is not a relevant consideration since reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights. The Court held by a majority that the appeal had to be allowed and, subject to possible modifications in light of parties written submissions, it indicated the nature of the Declarations it was proposing to make, namely, that: (i) s20(1)(d) of the MCO and s40 of the MO 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; and (ii) the Appellant is in law entitled to be included as “a woman” under relevant provisions of the MO and MCO and is eligible to marry a man. The Court leaves open the question whether transsexual persons who have undergone less extensive treatment might also qualify. It recognises that legislative intervention would be highly beneficial in various respects, including establishing a means for deciding who qualifies as “a woman” or “a man” for marriage purposes. Whilst the Courts could formulate a test and decide questions regarding the implications of recognising an individual’s acquired gender for marriage purposes, it would be distinctly preferable for the legislature to introduce legislation similar to the United Kingdom’s Gender Recognition Act 2004 (“GRA”). The GRA sets up machinery for an expert panel to vet gender recognition claims on a case-by-case basis, and grants gender recognition certificates which recognise successful applicants in his/her new sex. It also provides a practical model for possible approaches to deal with other legal ramifications of recognising a person’s acquired gender. The Court recognises that whether new legislations should be enacted is entirely a matter for the legislature to decide. Subject to the parties’ further submissions, it proposes to suspend the operation of the orders to be made for the period of 12 months from the date of judgment to enable consideration to be given to possible legislation. The Appellant will be entitled to the declared reliefs at the end of that period whether or not new legislation is in place. Dissenting judgment of Chan PJ: Chan PJ held that recognition of transsexual marriages is a radical change of the traditional concept of marriage and marriage is an important social institution which has its basis in the social attitudes of the community. Changes in the laws of overseas jurisdictions to allow transsexuals to marry in their post-operative sex have been informed by social consultation which indicated changes in social attitudes towards marriage. There is no evidence whether social attitudes in Hong Kong have changed to the extent of abandoning or fundamentally altering the traditional concept of marriage. The Court should not invoke its power of constitutional interpretation to recognize transsexual marriages in the absence of such evidence. To do so would amount to making a new policy on a social issue which has far-reaching ramifications and which can only be made after public consultation. This is not the business of the Court. Chan PJ is sympathetic to the problems facing transsexuals and calls for a comprehensive review of the relevant legislation with a view to propose changes in the law as soon as practicable.