Understanding Sex, Gender, and Translation: Legal Implications

Sex, gender and translation Poon Wai Yee Emily The Open University of Hong Kong

1. HK transsexual wedding case 9 & 10 August 2010 (W v Registrar of Marriages HCAL 120/2009; CACV 266/2010) A male-to-female transsexual, identified as W, challenged the Registrar of Marriages by seeking a judicial review in the High Court (HC)in court because he had barred her from marrying her boyfriend. W already had her gender on her ID changed to female. However, the chromosomes still say she is a male. registrar said her

Contd W was seeking a court declaration that she is a woman and so far as her right to marry is concerned, the Marriage Ordinance is inconsistent with the Basic Law and the Bill of Right. W s lawyer argued that the law guarantees the right of marriage to residents whether they are male and female. As the law is gender-neutral,she should have the right to marry. without stipulating W s case was dismissed by the HC. She appealed in the Court ofAppeal (COA).

2. The questions that will arise: What is a man and what is a woman? What is the legal definition of marriage? What are the implications on the words used and their translation?

3. Difference between sex and gender 3.1 Traditional definitions Sex was defined as biological differences in genetic composition and reproductive anatomy and function. Gender, in contrast to sex, was originally defined as those characteristics and traits socioculturally considered appropriate to males and females , the traits that make up masculinity and femininity (they are expressed through clothing, hairstyle, body exposure, and so on). (Crawford 2012:25-26 and 34)

3.2 Gender roles and gender identity Gender roles can be described as social norms, or rules and standards that dictate different interests, responsibilities, opportunities, behaviours for men and women. limitations and (Johnson and Repta 2012:23) Gender identity is concerned with how people view themselves with respect to gender. Individual s inner feelings impact how they present themselves as a man,a woman,or another gender. (Oliffe and Greaves 2012:24)

3.3 Debate While we often like to think of sex as biological and gender as social, both concepts are socially constructed and therefore subject to change over time. Different cultures conceptualize sex variation in different ways, and our understandings of sex have changed over time (and continue to change) as biological variation is discovered and measurement techniques are refined. For chromosomal arrangements XX and XY as the typical makeup for women and men, respectively, while we now understand that chromosomal configurations XXX, XXY, XYY, and XO exist,as well as XX males and XY females. example, previous conceptions of sex assumed (Johnson and Repta 2012:19-20)

4. The legal definition of marriage The most widely accepted definition of marriage in the law is that in Hyde v Hyde and Woodhouse (1866) LR 1 PD 130: the voluntary union for life of one man and one woman to the exclusion of all others.

5. Valid Marriage (Hong Kong) s.40(1) of Marriage Ordinance ( ) (Cap.181) (1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage. (2) The expression Christian marriage or the civil equivalent of a Christian marriage implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others. (1) (2) (Christian marriage or the civil equivalent of a Christian marriage)

6. The grounds on which a marriage is void/voidable (Hong Kong) s.20(1) of Matrimonial Causes Ordinance ( ) (Cap.179) 20(1) A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only (d) that the parties are not respectively male and female. 20(1) 1972 6 30 (d)

s.20(2) of Matrimonial Causes Ordinance ( ) (Cap.179) 20(2) A marriage which takes place after 30 June 1972 shall, , be voidable on any of the following grounds only (d) that consummated owing to the incapacity of either party to consummate it; the marriage has not been 20(2) 1972 6 30 (d)

7. Transsexuals 7.1 or all of the biological characteristics of one sex, but psychologically feel they belong to the other sex. These are people who are born with some Gender realignment surgery/gender reassignment surgery/sex change operation: with hormonal drug treatment, has the effect that the outward appearance of the patient matches their psychological sex . This combined (Herring 2004:44)

7.2 Difference between transsexual and transgender Transsexual is used to distinguish those who wish to change their sex in a permanent and literal sense by employing hormone and/or surgical techniques. Transgender is a terminology coined in the 1970s but only widely employed from the 1990s. It is used to distinguish those who wish to alter their gender in a permanent but less literal sense that is,those who live as the opposite gender, as a third gender or as an ambiguous gender, without resort to surgical or perhaps even hormonal interventions. (Beasley 2005:159-160)

Contd Transgender is sometimes used as a generic term to denote the whole field of Trans theorising that is, the whole field of gender identity transgressions, including tranvestism, drag,transsexualism and so on. (Beasley 2005:153)

7.3. Problems encountered by transsexuals (Hong Kong) A transsexual can amend his/her identity card or passport to reflect their acquired gender. However, a transsexual cannot change his/her birth certificate. This is crucial because this is the document used to determine sex for the purpose of marriage.

8. Leading cases 8.1 Corbett v Corbett [1970] 2 WLR 1306 High Court Ashley, born as a man but undergone a sex- change operation and lived as a woman. She later married with a man. No more than 14 days after the marriage, her husband filed a petition ( ) for a declaration that the marriage was null and void because the respondent was a person of male sex, or alternatively for a decree of nullity ( ) on the ground of non-consummation.

Contd Ormrod J: Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in chromosomes ( ), male gonads ( ) and male genitalia ( ) cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. a person with male

Contd The law should adopt, in the first place, the first three of the doctors criteria, ie the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. The woman could not engage in full natural sexual intercourse.

8.2 Goodwin v United Kingdom; I v United Kingdom [2002] 2 FLR 487 and 518 European Court of Human Rights Goodwin underwent a sex-change operation to become a female. Goodwin complained that she could not find work because she refused to present her birth certificate to a potential employer. She also complained about her inability to marry.

Held: While Art. 12 of the European Convention on Human Rights referred in express terms to the right of a man and a woman to marry, the Court was not persuaded that those terms restricted the determination of gender to purely biological criteria. Art. 12 states: Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the existence of this right.

Contd There had been dramatic changes brought about developments in medicine and science in the field of transsexuality. A test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. An inability to conceive or parent a child cannot remove the right to marry. There were other important factors. The acceptance of the condition of gender identity disorder ( ) by the medical professions and health authorities within the contracting states, the provision of treatment, including surgery to assimilate the individual as closely as possible to the gender in which they perceived that they properly belonged; and transsexual of the social role of the assigned gender. the assumption by the

8.3 Bellinger v Bellinger [2003] 1 FCR 1043; [2003] 2 FCR 1 House of Lords B underwent a sex-change operation to become a female. She married a man H. Later she applied for a declaration under s55 Family law Act 1986 that her marriage to H was valid at its inception and subsisting notwithstanding that B was born a male. She also argued that s11(c) Matrimonial Causes Act 1973 (which makes void any marriage unless the parties are respectively male and female) was incompatible with arts 8 and 12 of the European Convention on Human Rights.

Contd Held: Dismissing the appeal, in English law a person who was born male but who underwent gender reassignment treatment could not enter into a valid marriage with another male. Any fundamental change interfered with the traditional concept of marriage, had to be brought about by Parliament and not judicial intervention. Such a change in English law raised matters of extensive inquiry and public consultation and discussion ill-suited for determination by the courts.They were a matter for Parliament. in the law, which

8.4 Response of UK government In 2004 the government enacted the Gender Recognition Act to provide recognition of transsexuals. This will include the right to marry in their adoptive sex and to certificates showing their new sex. The certificate will be available only to a person who has gender dysphoria ( ) and has lived in his/her acquired gender for two years before the certificate has been issued. for the legal apply for new birth

9. The situation in PRC 9.1 Marriage law (2001 ) [ ] Chapter 1 Article 2 A marriage system based on freedom, monogamy and equally between man implemented. and woman shall be

Contd 9.2 Marriage law (2001 ) [ ] ( ) ( ) ( ) ( )

Contd Marriage Law of PRC (2001Amendment) Chapter 2 If any of the following circumstances occurs, the marriage shall be invalid: a. if either party is a bigamist; b. if both parties are in the kinship that is forbidden from getting married by law; c. if any party has suffered from any disease that is held by medical science as rending a person unfit for getting married and the disease has not been cured after marriage; d. if any party has not come to the legitimate age for marriage. Article 10

9.3 News 9.3.1

Contd ( ) ( 2008 12 4 )

9.3.2 2011 9 20 ( 2011 9 28 )

10. Trans Theorising Bornstein (1994; quoted in Beasley 2005:155), a post- operative transsexual, proposed the denunciations of the bipolar gender system : It s the gender system itself the idea of gender itself that needs to be done away with. The trap for women is the system itself; it s not men who are the foe so much as it is the bipolar gender system that keeps men in place as more privileged. I think that male privilege is the glue that holds the system together. Questions that will arise: Will equality between men and women be beneficial to transsexuals? Should we erase the binary system of sex and gender?

11. No Gender Society Okin (1989:171) proposed a no gender society: It would be a future in which men and women participated in more or less equal numbers in every sphere of life, from infant care, to different kinds of paid work,to high-level politics. However, this equal sharing of parental responsibility would give rise to a substantial change in a social structure: Pregnancy temporarily disabling conditions like any others, and employers should be mandated to provide leave for all such conditions (Okin 1989:176). and childcare should be regarded as

12. Near-perfect Equality in Hong Kong It is still difficult to achieve perfect equality when taking into account: The biological and emotional differences between men and women; Masculinity is still tied to breadwinning and dominance. Near-perfect equality has been achieved: education (In 2011, 25.5% of women underwent post- secondary education,as against 29.4% for men.) high position (In 2011, 843 men and 414 women worked as directorate officers in the civil service.) financial independent (In 2011, men were 26.9% more than women who earned more than $30,000 per month.) (Data from the census and statistics Department,2012 Edition)

Contd Questions that will arise: If both men and women have rights,power and status, and if most people have their gender conform with their sex, why should we bother to erase the binary system? Important point: The binary system is shaped by social practices and law.

13. Implications on the words used / and their translation 13.1 Arguments byW s lawyer The interpretation of the words man and women in the Marriage Ordinance and the Matrimonial Causes Ordinance should include a post-operative transsexual in his or her acquired sex. 13.2 Response from the court A person who has undergone a sex-change surgery is not commonly called a man or a woman. The Shorter Oxford English Dictionary (6th ed,2007) defines the word woman as an adult female person,and defines the adjective female as of, pertaining to, or designating the sex which can beget offspring and produce eggs

13.3 How should we translate these words? Sex: Gender: (by kang-i Sun Chang ) Male sex: Male gender: Acquired sex: Acquired gender: Transsexual: (with discrimination) Transgender: (Other pejorative terms transgender:tranny, shemale) Transvestite/Cross-dresser: for transsexual/

13.4 Translation of lexical terms The way a legal term should be translated has been described by the Law Drafting Division as follows: When selecting the Chinese term, we must consider the adequacy and acceptability Adequacy means whether a Chinese term can carry, under the grammatical rules and semantic schemes of the Chinese language, the meaning of its English equivalent. Acceptability means whether the Chinese translation complies with the grammatical and usage rules of the Chinese language and whether it is comprehensible. (Law 1999 Feb:39) of the term. Should we define meaning as social meaning or contextual meaning ?

13.5 Implication on other ordinances Sex Discrimination Ordinance: It is unlawful for an employer to discriminate against a job applicant or an employee on the basis of sex. (Equal Opportunities Commission website) Does the word sex here really mean biological sex ? Are transsexuals protected by law?

Contd Crimes Ordinance (Cap.200): S.48 Any woman of or above the age of 16 years who with consent permits her grandfather, father, brother or son to have sexual intercourse with her shall be guilty of an offence How would you define the words woman , grandfather , father , brother and son here? How would you translate these words?

14. Decision of the Court of Appeal The COA supported the reasons given by the HC, and dismissed the appeal: The COA refused to follow the decision in Goodwin since Corbett has been given statutory effect in Hong Kong since 1972 and strong reasons would be required to justify a departure from it. The High Court denied W the right to marry her boyfriend, saying it is up to the legislature to set societal norms for defining gender not the courts.

Contd It is hoped this case would serve as a catalyst for the government to consultation on gender identity, sexual orientation and the specific problems faced by transsexuals, including the issue of their right to marry. No evidence had been brought in the case of an emerging consensus or general understanding that it was acceptable for transsexuals to marry in Hong Kong. It could not be proved the modern definition in marriage of man and woman include a post- operative transsexual. conduct general public

References BEASLEY, Chris. 2005. Gender & Sexuality: Critical Theories, Critical Thinkers. London,Thousand Oaks and New Delhi:Sage Publications. BORNSTEIN, K.1994. Gender Outlaw: On Men, Women and the Rest of Us.New York and London:Routledge. Crawford, Mary. 2012. Transformations: Woman, Gender & Psychology (2nded.). NewYork:McGraw-Hill. Dodds,Malcolm.2004. Family Law 150 Leading Cases. London: Old Bailey Press. Herring,Jonathan.2004.Family Law (2nd ed.).London:Pearson Education Ltd. Johnson, Joy L. and Robin Repta. 2012. Sex and gender: Beyond the binaries . John L. Oliffe & Lorraine Greaves, eds. Designing and Conducting Gender, Sex, Health Research.London:Sage.2012.17-37. Law Drafting Division, Department of Justice. 1999, February, The common law and the Chinese language . Hong Kong Lawyer. 39-42. Oliffe,John L.and Lorraine Greaves.2012.Designing and Conducting Gender,Sex & Health Research.London:Sage Publications,Inc. Oxford Advanced larner s Dictionary of Current English (4th ed.). Oxford: Oxford University Press. South China Morning Post 11August,2010 and 6 October,2010. 2011 9 28 2008 12 4

Translation Exercise W For the sake of love, she sought an application for the judicial review alleging that the Marriage Ordinance is inconsistence with the Basic Law. She also sought the Court to affirm her gender as female. In defense of love, W was then sought leave to apply for judicial review, arguing that the ordinance should be found in breach of the Basic Law, and requested the court legally recognized her changed gender. To fight for her love, W sought leave to apply for judicial review, claiming that the Marriage Ordinance contravened with the Basic Law and sought for recognition of her female identity by the Court.

The responsible judge to judge this case, Hon Andrew Cheung J, raised few questions in the court yesterday including whether post-operative transsexual may marry a man as opposed to a woman after the sex change operations. Is it the same to allow the same sex marriage? male-to-female The judge of the case Hon Andrew Cheung J raised a number of questions in the court yesterday, including whether allowing post-operative transsexuals to marry to their same sex partners was equivalent to the acceptance of same sex marriage,

W acquired her female gender. Her Identity Card and university graduation certificates all stated that her sex is female. W became a female. His graduation certificate and identity card also showed his female status. She then became a woman with her identity card and other documents like graduation certificate of university indicating her female identity,

W upon going with her boyfriend to the Marriage Registry for registration of marriage, was however discovered by the Registrar of the Marriages that the gender on their birth certificates were both male . However, when she and her fianc registered their marriage with the Marriage Registry, the Registrar of Marriage discovered that the sex on both of their birth certificates is male.

Ironically, in accordance to the Birth and Death Registration Ordinance, no person can alter the information on the birth certificate, including sex so as to respect the principle of natural life and procreation. However, the legislation is self-conflicting which allows individuals to alter their sex on their Identity Card. Hence, forming a grey area in law. Ironically, although according to the Births and Deaths Registration Ordinance, no one may alter the data on the birth certificate, including sex, in order to give due respect for the natural life and birth giving, the law contradictorily allows citizens to alter the gender on ID cards. The grey area in law is formed in this way.

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