Hong Kong same-sex couples must receive ‘legal recognition,’ top court rules

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Hong Kong’s Court of Final Appeal has ordered the government to set up a new framework to legally recognize same-sex partnerships, a partial victory that stops short of marriage equality.

In a split decision, a five-member panel ruled that the failure to provide recognition for same-sex unions – such as civil partnerships – is a violation of the constitutional right to privacy guaranteed by Hong Kong’s Bill of Rights. The court gave the government two years to enact such legislation.

The ruling ends a five-year legal battle waged by activist and former lawmaker Jimmy Sham and follows a number of incremental judgments providing greater protections for LGBTQ people in the Chinese territory.

“This is a significant victory, which makes clear that Hong Kong law must afford due respect and protection to same-sex couples,” said Esther Leung, the campaign manager of the Hong Kong Marriage Equality group. “This will help families while hurting no one.”

In 2018, the same court ruled that the government must provide dependent visas to the same-sex spouses of foreign workers. And this February, it struck down a rule requiring trans people to undergo surgery before changing their gender on government ID cards.

In the decision published Tuesday, the judges unanimously agreed there was no constitutional right to same-sex marriage under Hong Kong law, nor any obligation on the part of the government to recognize such unions entered into overseas. However, Chief Justice Andrew Cheung said there was nothing to stop the government from legislating marriage equality in the future.

Should it not, he appeared to leave the door open to the court recognizing such a right, saying future judges might give a “wider, more liberal interpretation” to Article 37 of the Hong Kong Basic Law, which does not mention gender and states merely that “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

Chief Justice Cheung said no attempt had been made in the current appeal “to persuade the court to give Article 37 such an expansive interpretation.”

Writing for the majority on the question of establishing a framework for legal same-sex partnerships, judges Roberto Ribeiro and Joseph Fok said couples currently face “real difficulties in many situations,” such as being denied visiting rights or participation in decision-making when their partners are hospitalized.

“The absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples,” they said.

About 60 per cent of Hong Kongers support same-sex marriage, up from 38 per cent in 2013, according to researchers at the University of Hong Kong, the Chinese University of Hong Kong and the University of North Carolina. More than 70 per cent of respondents agreed there should be legal protections against discrimination based on sexual orientation.

Barrister Azan Marwah, who has represented LGBTQ appellants in lower court cases in Hong Kong, said Tuesday’s judgment could have “serious and long-term impacts” beyond just the recognition of same-sex partnerships and could affect decisions in anti-discrimination cases. He hoped the government would take an expansive view in defining what the court termed the “core rights” it must grant LGBTQ couples in creating the new legal framework.

In 2019, Taiwan became the first, and so far only, place in Asia to fully legalize same-sex marriage. But there is a shift under way across the continent toward greater equality, with several countries seemingly poised to make changes.

In June, Nepal’s Supreme Court issued an interim ruling clearing the way for marriage equality and requiring the government to legislate it. In neighbouring India, the top court is also due to rule on a similar case this year, while in Japan, multiple lower courts have found same-sex marriage bans unconstitutional, putting pressure on the government to act.

In Thailand, the two largest parties that emerged from May’s general election – Move Forward and Pheu Thai – both support same-sex marriage. Even ultraconservative Singapore last year took the basic step of decriminalizing homosexuality, though marriage equality remains a distant dream in the city state.

Mainland China, which decriminalized homosexuality in 1997 and, in 2001, removed it from a list of mental disorders, appears to be moving the opposite direction from other countries in Asia. Space for LGBTQ expression has shrunk dramatically in recent years, with some NGOs forced to close, discussion censored online and Pride events cancelled.

In the past, Beijing has intervened to overturn rulings by Hong Kong’s top court, usually in cases involving security issues. It would be highly unusual for that to happen in this case and earlier judgments around rights for sexual minorities have stood.

As campaigners in Hong Kong celebrate Tuesday’s ruling, they will do so without Mr. Sham, who is detained – one of 47 pro-democracy activists currently being prosecuted under the city’s draconian national security law.

He and his co-defendants are charged with subversion for taking part in an unofficial primary election in 2020, which prosecutors claim was part of a sinister plot to “subvert state power” and “ultimately bring down the government.”

Mr. Sham, 36, married his partner in New York in 2013 and launched his first case in Hong Kong five years later. He is the former convenor of the Civil Human Rights Front, which organized rallies that drew hundreds of thousands of people to the streets during anti-government protests in 2019.