HONG KONG - Hong Kong’s top court partially approved on Tuesday a landmark appeal by an LGBTQ (lesbian, gay, bisexual, transgender and queer) activist for recognition of overseas same-sex marriages, and called for new regulations for gay couples to cover their basic social needs.
The ruling by Hong Kong’s Court of Final Appeal followed a five-year legal battle fought by jailed democracy and LGBTQ rights activist Jimmy Sham.
It was the first time the court directly addressed the issue of same-sex marriage in the Asian financial hub.
The judges did not allow for same-sex marriages in Hong Kong but effectively gave the government two years to ensure rights, such as access to hospitals and inheritance, could be protected for same-sex couples.
Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok and Johnson Lam, and Non-Permanent Judge Patrick Keane ruled that marriage freedoms outlined in Hong Kong’s mini-Constitution, known as the Basic Law, were confined to opposite-sex marriages.
But the judges acknowledged same-sex couples’ need “for access to an alternative legal framework in order to meet basic social requirements”.
Same-sex couples also needed to “have a sense of legitimacy which dispels any sense of them belonging to an inferior class of person whose committed and stable relationships are undeserving of recognition”, the judges wrote.
Lawyers and activists say the ruling could potentially force changes by the city’s government and institutions, and lead to the creation of a new legal regime to allow smoother inheritance and insurance options as well as tax allowances, among other rights.
The decision could also influence Asian financial hubs from Tokyo to Singapore to draft more inclusive laws as a drawcard for the diverse, global talent that multinational corporations from banks to technology giants are seeking to hire and retain.
Mainland China decriminalised homosexuality in 1997, and in 2001, removed it from its list of mental illnesses, but same-sex marriage is not recognised and no official legal protections exist.
The judges suspended a declaration that the government’s lack of an alternative legal framework had violated Sham’s rights, giving the government two years to make further submissions.
“Problems like these have unsatisfactorily led to recurrent approaches to the courts asking them to deal with each controversy on a case-by-case basis,” they wrote.
“The absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples.”
Sham, 36, married his partner in New York in 2013. He twice lost in the Lower Courts after launching a bid for Hong Kong to recognise overseas same-sex marriages in 2018.
He is one of 47 democrats charged under a Beijing-imposed national security law over an unofficial primary election held in 2020, and has been detained since March 2021.
Ms Esther Leung, campaign manager of the Hong Kong Marriage Equality group, said after the ruling that while the decision was a “major step forward, it falls short of what is really at stake in this case: full inclusion in marriage”.
“It is a significant victory which makes clear that Hong Kong law must afford due respect and protections to same-sex couples. This will help families while hurting no one,” Ms Leung said.
Hong Kong is due to host Asia’s first Gay Games in November – an event that could help boost the city’s lacklustre post-Covid-19 economic recovery. REUTERS
