TRANSSEXUALS AND SEX DETERMINATION

• Citation: (1992) 4 SAcLJ 86
• Date: 01 December 1992
• Published date: 01 December 1992

SYNOPSIS

The law relating to the capacity of sex-change transsexuals to contract marriage is fraught with difficult policy considerations. Lim v Hiok, the first Singapore decision dealing with this fails to deal with the conflicting policy questions adequately. A quick review of the cases from around the world (both from the common-law and civil-law traditions) shows the courts divided on this issue. The writers suggest that upon the weighing of the pros and cons, the balance should tilt in favour of allowing the sex change transsexual to contract marriage in his or her newly assigned sex. A new test of determining sex, as regards the capacity to contract marriage, is submitted. This article will consider alternative ways by which married couples of such marriages may free themselves from what they may subsequently perceive to be a burdensome marital commitment. Further, reforms especially legislative reform in the mould of the Australia’s Sexual Assignment Act would help to establish an infrastructure whereby sex-change transsexuals can adopt their new sex status, erase all public records of their original sex and replace them with new ones recording their new sex, without fear of discovery or reprisal.

I. INTRODUCTION

Lim Ying and Eric Hiok married in July 1990. Within less than three months, Madam Lim petitioned for annulment on the grounds that:

1. (a) Eric Hiok, her ‘husband’ was biologically a female, and therefore there never was a marriage, or alternatively,

2. (b) on the basis of non-consummation due to the incapacity of the respondent

This controversial landmark case provides Singapore with her first precedent on the legal status of transsexuals in the area of marriage, and touches a hotbed of legal issues, social policy and moral-religious concerns, and carries far-reaching implications that will be examined in this article1.

Judicial Commissioner K S Rajah’s decision that the marriage was null and void as the parties were “both of the female sex” draws its basis from the

celebrated English case of Corbett v. Corbett2 which has been almost universally and sometimes savagely criticised.

In Corbett, one April Ashley had undergone a sex-change operation to become a female. His male sex organs were removed and an artificial vagina created. He used oestrogen to develop his breasts. His appearance was assessed-by Ormrod J, who had both legal and medical training, to be “convincingly feminine”. Yet according to the four criteria formulated by Ormrod J, namely, chromosomal, gonadal (i.e. the presence or absence of testes or ovaries), genital (including internal sex organs), and psychological, the sex-change party was found to be male. The reason was that the first three criteria indicated that biologically, April Ashley was still of the male sex at birth, notwithstanding that she had undergone a psychological test and was found to be effectively female. As the law only recognised heterosexual marriages, Ormrod J. held that the marriage was null and void.

It will be submitted that the decision of Lim Ying v. Hiok Kian Ming Eric3 and Corbett are, with respect, obsolescent and out of touch with the advance of medical science and the social realities of today. The writers propose a more satisfactory workable and realistic set of criteria to determine sex, and shall consider the ancillary issue of alternative ways by which married parties in such marriages may free themselves from what they may subsequently perceive to be a burdensome marital commitment. Legislative reforms to clarify the present state of law, as now shaped somewhat amorphously by Lim v. Hiok will also be suggested. The very nature of marriage and the basic premises upon which it is established shall first be examined.

II. RATIONALE OF MARRIAGE

The first premise is that marriage is a hetero-sexual institution involving one male and one female respectively. In Lim v. Hiok, Rajah J C drew attention4 to the definition of “monogamous marriage” in S.2 of the Interpretation Act, CAP 1,1985 (Rev. Ed) which is defined as “a marriage which is recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others

during the continuation of the marriage”5. This is similar to Lord Penzance’s in Hyde v Hyde and Woodmanse6.

It is interesting to note the development of English law in this respect. Taking the cue from the decision on transsexual marriage in Corbett, the English parliament enacted the Nullity of Marriage Act in 1971, section 1(i) of which makes null and void marriages between parties which are not respectively male and female. Today, this has been replaced by section 11 (c) of the Matrimonial Causes Act 1973 which has the same legislative effect7. In Singapore, however, there is no such specific legislation8. Thus transsexual marriages in Singapore may arguably not be void in the absence of any legislation like the UK’s Matrimonial Causes Act 1973. This is reinforced by S.99 of the Women’s Charter, CAP 353, 1985 (Rev. Ed) which provides that “a marriage taking place after 1 Jun 1981 shall be void on the following grounds only”9. The literalist approach would be to construe S.99 as exhaustive and therefore a purported marriage between two parties of the same sex cannot be made null and void at all.

However, in the light of Lim v. Hiok, the approach now appears to be to

regard, even in the absence of specific legislation, that the indispensable condition to a valid marriage that both parties must be male and female respectively is so fundamental that without it, there is no marriage to speak of at all. Section 16(2) of the Woman’s Charter empowers the Registrar not to issue a marriage licence until he has been satisfied that “(d) that there is no lawful impediment to the marriage.” In Rajah J C’s words “[a] legal impediment to the marriages of persons chosen not of opposite biological sex is implied in the statutory definition of the monogamous marriage”10. Further, the scheme of the Women’s Charter contemplates the existence of this condition, in its many references to husband and wife in the areas of divorce, division of matrimonial property, maintenance and rights and duties of spouses11. The words of solemnisation of marriage recited by the Registrar are formulated on the same premise12. The choice of the words “man” and “woman”, appear in the definition of “monogamous marriage” should be noted, for it does appear to connote the use of biological criteria to determine a person’s sex status. This may be treated like the more neutral “male and “female”, terms used in the UK’s Matrimonial Causes Act. This will be explored in the latter part of this article.

The second premise is that marriage is a voluntary union of the mind and the body, where parties offer, inter alia, “companionship and mutual support”. Consummation is one of the key elements of such union, sufficiently important for the Women’s Charter to provide that marriages may be voidable at the option of either party on the ground of non-consummation. However, the parties may affirm or ratify by conduct a marriage in the absence of consummation and the law will not presume to interfere with its validity. Alternatively, the petitioner may be stopped in appropriate circumstances from applying to annul the marriage under Section 101(1) of the Women’s Charter. Ormrod J enunciated in Corbett that marriage ”is the institution on which the family is built, and in which the capacity for natural hetero-sexual intercourse is an essential element”13. The unfortunate use of the word “essential” appears to wrongly elevate consummation to the level of a condition subsequent, the

failure of which would operate to vitiate a marriage. This is suspect because one spouse may be unable to consummate a marriage, with the knowledge of the other spouse, without affecting the validity of the marriage. Late marriages between elderly people may be entered into for companionship and love, and not sex14.

The procreation of children also cannot realistically be said in today’s social atmosphere to be a necessary condition to the sustenance of conjugality, though certainly, procreation is a welcome result of consummation, that to many, completes a marriage. Marriages do not flounder legally upon its mere absence15.

The traditional roles society has assigned to the husband and wife of the breadwinner and home-maker respectively have been blurred in their boundaries and even a complete reversal of their roles16 do not generally nullify a marriage. Societal mores have changed dramatically over the years and today in Singapore, the wife contributes an important share to the family income, while the husband is beginning to accept that household work is part of his lot as well.

In Corbett, however, Ormrod J. said, “Having regard to the essential hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgement, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage”17. This statement has been described as “disturbingly simplistic” by Douglas K Smith18.

What the “essential role of a woman in marriage” means is unclear. If, from the tenor of his judgement, it is the capacity for hetero-sexual intercourse, this has been shown to be non-essential, though, admittedly important. If he means to consign to women the traditional role of home-maker, then, with respect, his views are no longer consonant with the pulse of modern Singapore society.

Ormrod J. himself suggested that some characteristics of a marriage are “companionship and mutual support”, but he places them as secondary to sexual intercourse. If this is the “essential...