Hong Kong’s top court urges alternative legal framework for same-sex couples

A statue of Lady Justice at the Court of Final Appeal is pictured, in Hong Kong, China, September 5, 2023. REUTERS/Tyrone Siu

HONG KONG — Hong Kong’s top court partially approved on Tuesday a landmark appeal by an LGBTQ activist for recognition of same-sex marriages, calling for new regulations for gay couples to protect 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 that the court directly addressed the issue of same-sex marriage in the Asian financial hub.

The judges dismissed Sham’s appeal that he had a constitutional right to same-sex marriage in Hong Kong but effectively gave the government two years to ensure that 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, 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 marriage.

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.

The Hong Kong government did not immediately respond to a request for comment.

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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.

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Mainland China decriminalized homosexuality in 1997, and in 2001, removed it from its list of mental illnesses, but same-sex marriage is not recognized and no official legal protections exist.

The judges suspended a declaration that the Hong Kong government’s lack of an alternative legal framework had violated Sham’s rights, giving the government two years to make changes before they would say it was in breach of the law.

In the ruling, judges Fok and Ribeiro noted “real difficulties in many situations” for some same sex couples, noting the need for them to participate fully in health care and hospitalization decisions.

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“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 and twice lost in lower courts after launching his bid for Hong Kong to recognize overseas same-sex marriages in 2018.

Sham is one of the 47 democrats charged under the Beijing-imposed national security law over an unofficial primary election held in 2020 and has been detained since March 2021.

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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,” Leung said.

Hong Kong is due to host Asia’s first Gay Games in November – an event that could help boost Hong Kong’s lackluster post-COVID economic recovery. Family lawyer Azan Marwah said the ruling had “serious and long-term impacts on the recognition and treatment of same-sex couples here in Hong Kong and those who are coming from abroad.”