The meaning contended for by the appellant of and “man” “woman” is different from the ordinary meaning of these words. It amounts to a radical change to the traditional concept of marriage. It also represents a departure from the domestic law as it was and still is which must have been intended to be the basis of art 37 when it was first enacted. The ordinary meanings of man and woman The ordinary meanings of and for the purpose of “man” “woman” marriage refer respectively to a biological man and a biological woman capable of producing children. This accords with the common understanding of these words and is also reflected in their meanings in the dictionary. These words do not include a post-operative transsexual man and woman, as submitted by the appellant. There is no evidence that in Hong Kong, these words have acquired any new contemporary meanings which are different from what is commonly understood by these words. Neither were the House of Lords in Bellinger v [2003] 2 AC 467 able to discern evidence of such a change in Bellinger contemporary usage in the UK (#62). But contrast the situation in Australia as discussed by the Full Court of the Family Court in [2001] Kevin and Jennifer Fam CA 1074 in which it was held that there was evidence that the contemporary meaning of these words in Australia has changed. Obviously, the situation varies in each country, depending on its social and cultural conditions. The concept of marriage The meaning contended for by the appellant will also have an extremely important effect on the concept of marriage. Marriage has been generally recognized as the basis of the family and the family is an essential unit of society. Although there are men and women who do not go through marriage, it is still regarded as an important social institution. It has a long history and in
The meaning contended for by the appellant of “man” and “woman” is different from the ordinary meaning of these words. It amounts to a radical change to the traditional concept of marriage. It also represents a departure from the domestic law as it was and still is which must have been intended to be the basis of art 37 when it was first enacted. The ordinary meanings of man and woman The ordinary meanings of “man” and “woman” for the purpose of marriage refer respectively to a biological man and a biological woman capable of producing children. This accords with the common understanding of these words and is also reflected in their meanings in the dictionary. These words do not include a post-operative transsexual man and woman, as submitted by the appellant. There is no evidence that in Hong Kong, these words have acquired any new contemporary meanings which are different from what is commonly understood by these words. Neither were the House of Lords in Bellinger v Bellinger [2003] 2 AC 467 able to discern evidence of such a change in contemporary usage in the UK (#62). But contrast the situation in Australia as discussed by the Full Court of the Family Court in Kevin and Jennifer [2001] Fam CA 1074 in which it was held that there was evidence that the contemporary meaning of these words in Australia has changed. Obviously, the situation varies in each country, depending on its social and cultural conditions. The concept of marriage The meaning contended for by the appellant will also have an extremely important effect on the concept of marriage. Marriage has been generally recognized as the basis of the family and the family is an essential unit of society. Although there are men and women who do not go through marriage, it is still regarded as an important social institution. It has a long history and in
13HKCFA-13MY.docx