Intimate Equality and Transparent Selves: Legalizing Transgender Marriage in Hong Kong

In May 2013, the Court of Final Appeal in Hong Kong ruled in favor of granting transgender individuals the right to marry in their post-transition gender rather than their biological sex at birth.  This landmark judgement, W v Registrar Marriages, has been considered by many as an important milestone in the LGBT rights movement in Sinophone communities.  Although there is much to be commended about the W v Registrar of Marriages ruling, this essay aims to open up discussions about what it forecloses, especially in light of how its narrative of success strikingly rests on a presumed irrelevance of gay and lesbian political ambition.  The issue of same-sex marriage has drawn a divisive line within the LGBT community, and this essay is far from the place to claim a resolution to that debate.  Nonetheless, to assess the ramifications of W, I believe there is much to be gained from turning that debate on its head: if gay marriage has been critiqued vociferously on the ground of its exclusionary blind spots that further marginalize under-privileged social groups and bolster the heteronormative power of the state, can the legitimation of nonheterosexual partnership be similarly conceived as a vital oversight in the intelligibility of transgender marriage?

Building on a growing body of literature that brings the issue of queer kinship to the heart of discussions about global political configurations, this essay proposes an alternative reading of W that foregrounds the geopolitical positioning of Hong Kong.  This reading underscores the danger of eclipsing the reciprocal masking of homophobia and transphobia when the state’s interest in setting them apart as mutually distinct political agendas rearticulates itself in powerful ways behind definitive court decisions. The first part of the essay sheds light on Hong Kong’s geopolitical salience by exploring the international jurisprudence history within which the W judgement is nested.  In doing so, I suggest that neither England nor Europe alone deserves a taken-for-granted place in this process of historical referentiality.  Our analysis must take into account the increasingly charged relationship between the Hong Kong Special Administrative Region (HKSAR) and the People’s Republic of China (PRC), one that is frequently neglected in Anglocentric critical legal analyses.  Accordingly, in the second part of the essay, I expand on the mutual imbrication of juridical conservatism and gender/sexual geopolitics through a critical reappraisal of the W judgement.  Concluding with the transnational affinity between Hong Kong and Taiwan, this essay argues that the liberal framing of transgender marriage rights engenders what we may call ‘the polite residuals of heteronormativity’, which figures the advancement of queer interest by concealing certain implicit forms of gender and sexual oppression within a broader outlook of political progressiveness.


Part of panel Forms of Exclusion in Marriage Law
October 2, 2016, 11:00–12:45