BREAKING: Lack of legal same-sex relationship recognition in Hong Kong a rights violation, top court rules
Hong Kong Free Press
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Hong Kong’s top court has handed a partial victory to LGBTQ advocates, ruling that the government has not fulfilled its constitutional duty to provide any legal framework for same-sex relationships to be recognised.
The Court of Final Appeal delivered the judgement on Tuesday.
A five-judge panel at the Court of Final Appeal heard in June that the absence of same-sex marriage acceptance in Hong Kong sent a message that it was “less worthy” of recognition than heterosexual marriage.
The appeal panel was led by Chief Justice Andrew Cheung and also consisted of Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane.
Sham – who has been detained under the national security law – married his partner in the United States in 2013, but their marriage was not recognised under Hong Kong law. Since 2018, he has launched a string of legal challenges to fight for the city to recognise overseas same-sex marriages.
His first bid was rejected by the Court of First Instance in September 2020 and his subsequent appeal was dismissed by the Court of Appeal in August last year. But the top court agreed to hear the democrat’s arguments last November, saying the questions of laws he raised were of great general or public importance.
The Court of Final Appeal was asked to rule on three questions: whether the exclusion of same-sex couples from the institution of marriage was a violation of the right to equality under the Hong Kong Bill of Rights and Basic Law; if it was a violation of the right to privacy and/or equality when same-sex couples were not allowed to marry in Hong Kong and there were no alternative means of legal recognition such as civil partnerships; and whether the lack of recognition of foreign same-sex marriage violated the right to equality.
Whilst same-sex sexual activity was legalised in 1991, Hong Kong has no laws to protect the LGBTQ community from discrimination in employment, the provision of goods and services, or from hate speech. Equal marriage remains illegal, although a 2023 survey showed that 60 per cent of Hongkongers support it. Despite repeated government appeals, courts have granted those who married – or who entered civil partnerships – abroad some recognition in terms of tax, spousal visas and public housing.
Sham has been detained since March 2021 after he was denied bail in a high-profile national security case involving 47 pro-democracy figures. He pleaded guilty to conspiracy to commit subversion in connection with an unofficial legislative primary poll held in July 2020 and is awaiting to be sentenced after the trial of his co-defendants concludes.
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