Definition in Law: Transgender Identities and Marriage

Authors: Kimberly Tao

Abstract:

This paper looks at transgender identities and the law in the context of marriage. It particularly focuses on the role of language and definition in classifying transgendered individuals into a legal category. Two lines of cases in transgender jurisprudence are examined. The former cases decided the definition of 'man' and 'woman' on the basis of biological criteria while the latter cases held that biological factors should not be the sole criterion for defining a man or a woman. Three categories were found to classify transgender people, namely male, female and "monstrous". Since transgender people challenge the core gender distinction that the law stresses, they are often regarded as problematic and monstrous which caused them to be subjected to severe legal consequences. 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.

Keywords: Trangender, Monstrousness, Categorization, Definition.

Digital Object Identifier (DOI): doi.org/10.5281/zenodo.1334908

References:

[1] Sharpe, A. (2010) Foucault's Monsters and the Challenge of Law. Routledge.
[2] Hutton, C. (2011) Objectification and transgender jurisprudence: The dictionary as quasi-statute. Hong Kong Law Journal 41. pp.27-47
[3] Corbett v Corbett (1971) P 83 (HL)
[4] Bellinger v Bellinger (2002) Fam. 150
[5] Re Kevin (2001) 165 FLR 404
[6] Secretary, Department of Social Security v SRA (1993) 43 FCR 299
[7] W v Registrar of Marriages (2009) HCAL 120/2009