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Has the Hong Kong Court of Appeal truly upheld biblical, traditional marriage?

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Dr Carys Moseley looks at a recent judgment in Hong Kong’s Court of Appeal and asks whether it genuinely supports the biblical view of one man, one woman marriage. 

Last week the Hong Kong Court of Appeal overturned a previous decision which required the government to grant the same spousal benefits to employees in same-sex marriages as those in heterosexual marriages. This has widely been reported as a blow for LGBT rights. The applicant was an ethnically Chinese civil servant from Hong Kong who contracted a same-sex marriage with a British man in New Zealand in 2014.

The judge, Mr Justice Poon, said the Hong Kong government was the custodian of the city’s values and that as such this justified its role in protecting traditional marriage. The judgment strikingly compares Hong Kong’s Basic Law to UK law, as it ‘favours heterosexual couples in terms of access to marriage’ at the constitutional level (paragraph 7). But does it really? Who exactly counts as a heterosexual couple in Hong Kong?

 

Hong Kong already recognises transsexual marriage

A prior ruling by the Court of Appeal in 2013 allowed a male-to-female transsexual to marry a man, and this was justified by reference to the Basic Law. That judgment overturned the ruling of a lower court which agreed with the Hong Kong Registrar of Marriages that sex is fixed at birth.

This view of the lower court leaned on the famous judgment Corbett v Corbett in England in 1971, where a man divorced his male-to-female transsexual ‘wife’, the model April Ashley, on the grounds of being a transsexual and not really a biological woman. The judge in that case, Justice Ormerod, who was also a trained medical doctor, laid down a clear, objective biological definition of sex in the common law as based on chromosomes not only hormones. Subsequently transsexual rights activists and their allies fought via the institutions of the European Parliament and the Council of Europe to redefine sex as psychological.


Transsexual rights have paved the way for same-sex marriage

What has been going on in the Hong Kong Court of Appeal mirrors what has been going on elsewhere across the western world, namely a battle between judicial activism by ‘progressive’ judges supporting LGBT rights and judges who uphold the unique status of traditional marriage and the natural family. Just like in Britain, we are seeing strategic litigation involving campaigning for transsexual rights that actually preceded campaigning for same-sex marriage.

This makes perfect sense once people accept the historical record, which is that the transsexual rights movement was founded by gay male activists such as Magnus Hirschfeld. He coined the term ‘Seelische Transsexualismus’ (‘transsexualism of the soul’), following on from the claim by German gay activist Karl Ulrichs that he was ‘a female soul trapped in a male body’. You can read about this in my chapter on transsexual activism in The New Normal.

 

Comparing Hong Kong with the United Kingdom

Of course the judgment from the Hong Kong Court of Appeal last week does not discuss any of this. To do so would be to open a can of worms. For now, supporters of traditional marriage and of the natural family in Hong Kong may breathe a sigh of relief that the Court of Appeal defeated an attempt for those in an openly same-sex marriage to have it recognised.

Sex has already been redefined as not only biological but also psychological. This is a fundamentally incoherent notion that cannot stand. The exclusive aim of this redefinition was to promote the ‘right’ of people who wanted to be known as members of the opposite sex to do so. At the same time there is a clear push by white western expatriate LGBT activists to push for recognition of same-sex parenting there. This is in marked contrast to more traditional attitudes among indigenous Chinese people both in Hong Kong and mainland China.

Perhaps the Hong Kong judges and government have been studying these trends and looked at how far the United Kingdom has gone with all this, and quietly concluded that it was time to put a stop to the onward march towards same-sex marriage. Looking at how same-sex marriage has led to the erosion of freedom of speech, conscience and religion here in the United Kingdom, they would have a very strong argument.

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