About that ROM/same-sex couple case

The following is a version of a long post I made on Facebook, which I’m posting on my blog for posterity (also, the original post was attached to a link, so I’m putting these comments here to make it easier to share).

This report by The Straits Times presents an extremely misleading picture of what’s happened. As the journalist who first reported this story — and I believe the only journalist to have ever actually met and interviewed the couple — I would like to set a few things straight. I’ll be quoting from the ST story and setting out my comments below.

More than just reassurances

“At a meeting with the couple then, the registrar had voiced concerns about registering the marriage, given the man’s appearance and name. The man reassured the registrar that he would not undergo any sex reassignment surgery to become a woman before the marriage date. But some six months after the marriage, the man underwent surgical procedures and, by June 2016, had become a woman.”

She did not just “reassure” the registrar — she signed a statutory declaration (i.e. a legal document) that she would not undergo surgery *before* the marriage. There was no mention in the stat dec about what can or can’t be done *after* marriage, which is why the couple was under the impression that the law and ROM were only concerned about what happens *before* getting married.

Which part of the law says this?

“The registrar maintained that the couple had no intention of living as man and wife during their marriage, which runs counter to the Women’s Charter.”

This should have been fact-checked. The Women’s Charter says that, *at the point of marriage*, a couple must be a man and a woman. There is no requirement that they remain or continue to live as a man and wife. I looked up the law myself when I first reported the story. I also checked with and quoted Indulekshmi Rajeswari, who is the project leader of a legal guidebook for LGBT people in Singapore. This is also confirmed in a later ST story where a family lawyer says: “There is no requirement that parties must remain of the same gender throughout the marriage, nor is there any provision that such marriages (where parties undergo gender reassignment after marriage) are void.”

Also, if this was really the case, ROM should have told them from the very start that the marriage would not be valid. If this was the case, why did the statutory declaration only have to do with not having surgery *before* marriage — why would it not have said that she could not have undergone surgery *ever* if there is a requirement that they continue living as man and wife?

Did ROM know what was up?

“For example, the man had not revealed that he had been preparing for sex reassignment.”

At the point of applying to register a marriage, she had already changed her name to a feminine one (which is what alerted ROM to this whole thing anyway). They spoke with the registrar, and the registrar came up with the statutory declaration, which was signed, then allowed them to register their marriage. (Side note: the registrar also asked that she dress in a more masculine fashion on the actual day of marriage. This was also complied with.)

About the “U-turn”

“They have now dropped the case and the High Court approved their U-turn last week. … Instead, they did an about-turn and dropped the case last week.”

This is technically accurate but I had a related point to make, which is that the couple at had first applied for an anonymising order when they sought the judicial review. They were denied, which is why ST later published an article about their case which used their full names — that story was later picked up by other media outlets and agencies, and their names got spread all over the press all over the world. This caused a massive amount of distress to the couple, who, I can confidently say, are the most private people I have ever met. From what I understand, the distress coming from this publicity is one of the reasons why they have decided to withdraw the case.

HDB’s involvement

“One fallout for the couple was that, once the marriage was voided, they became ineligible for the HDB flat they had booked to buy and for which they had waited for over three years.”

This is, again, technically correct, but leaves out an important fact that changes the timeline — that all the couple’s troubles started when they tried to collect the keys to their BTO flat. That is, this whole episode began with HDB, who stalled on handing over the keys.

HDB bounced the case back to ROM, who at first didn’t want to have anything to do with it. At one point, ROM told the couple: “We were focusing on whether you guys met the requirements, and clearly, you both did… That’s our message to HDB as well: As far as we’re concerned, when both of you registered the marriage, you had met all our requirements. Therefore, from there onwards our message to HDB has been, then, it’s really their call and their policy.”

It was some time *after* saying this that ROM appeared to have a change of heart and voided the marriage. Once the marriage was voided, then it was clear why they couldn’t get their BTO flat (as HDB said to ST, “flat applicants have to meet the prevailing eligibility conditions to buy a flat”) — but it all started with HDB in the first place.

Missing the point

Final but super important point: THIS WAS NOT THE POINT OF THE COURT CASE. The court case was not actually about whether their marriage was valid, but whether ROM acted within their powers in unilaterally voiding it, as opposed to going to the courts to seek an annulment. This is the statement the lawyers gave me after they were granted leave to proceed:

“This application seeks a court ruling that the Registrar of Marriages, in deciding to void our clients’ marriage and then deleting the record of marriage from the state marriage register, acted beyond her legal powers. In our view, the Registrar’s decision and the action she took, raise rule of law issues.”

So we can all argue until the cows come home about whether we think this, or any other, marriage is valid, but the crux was: does ROM actually have the power to make these judgement calls and just *delete* marriage records?

There’s been no divorce or annulment; ROM’s voiding of the marriage makes it as if the couple had never been married at all. They now have a marriage certificate that corresponds to no official record in the State Register. Does the law actually allow ROM to CTRL+Z marriages like that?

Kirsten Han