224. Neither the appellant W, the respondent the Registrar of Marriages nor the intervener the International Commission of Jurists has addressed us on the question of same-sex marriage. I proceed in this case on the footing that the right to marry guaranteed by our constitution is a right to marry a person of the opposite sex. Such a right is undoubtedly a human right. To say that it has no application to post-operative transsexuals is to deny their humanity. So it does apply to them. In what way? To say that what it guarantees is a right to marry in the pre-reassignment capacity would run counter to the purpose of sex reassignment surgery as a treatment for transsexualism. It is inconceivable that a human right would operate in such an inhumane way. What is left? Quite simply and obviously, the right to marry in the reassigned capacity.
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