Hong Kong’s top court yesterday ruled in favor of recognizing same-sex partnerships, including civil unions, but stopped short of granting full marriage rights in a partial win for the territory’s LGBTQ community.
Over the past decade, LGBTQ campaigners in the former British colony have won piecemeal victories in court, striking down discriminatory government policies on visas, taxes and housing benefits.
However, the case brought by jailed democracy advocate Jimmy Sham (岑子杰) is the first time Hong Kong’s Court of Final Appeal has directly addressed the issue of same-sex marriage.
Photo: AFP
In its ruling, the court said that the Hong Kong government “is in violation of its positive obligation ... to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions).”
The court gave “a period of two years” for authorities to comply with the ruling by creating a framework, leaving specifics to be decided by the government and the opposition-free legislature.
However, it stopped short of making a decision of full marriage equality for same-sex couples.
The court “unanimously dismisses the appeal in relation” to same-sex marriage and recognition of foreign same-sex marriage, it said in its judgement.
Since Hong Kong’s handover in 1997, it has enjoyed a semi-autonomous status that allows it more freedoms than on the mainland, and its legal system is governed under a common law system.
The territory has in recent years seen increasing support among its population for same-sex marriage — a stark contrast to the mainland where social stigma is widespread and the LGBTQ community have alleged a growing crackdown on their already-limited space.
A poll this year found that 60 percent of Hong Kongers supported same-sex marriage, compared with just 38 percent a decade earlier.
The challenge launched by Sham, 36, began in 2018. He is currently behind bars awaiting prosecution for national security charges unrelated to LGBTQ rights, and was not brought to court yesterday.
Sham had argued that Hong Kong’s ban on same-sex marriage breached his right to equality, while the lack of a policy alternative — such as civil unions — does the same, in addition to breaching his right to privacy.
However, he had twice failed to convince Hong Kong’s lower courts to legally recognize his marriage to his partner, which was registered in New York nearly a decade earlier.
The judges yesterday agreed with the lower courts that under Hong Kong’s Basic Law, “the constitutional freedom of marriage ... is confined to opposite-sex marriage and does not extend to same-sex marriage”.
However, they conceded that Sham had “compellingly advocated” for access to an alternative framework for legal recognition of their relationship.
Citing issues like making medical decisions if their partner is ill or dividing assets at a relationship’s end, the judges said “such needs must be addressed in Hong Kong where no means of legal recognition for same-sex relationships presently exists.”
Gender studies academic Suen Yiu-tung (孫耀東) called the ruling “a partial, but very important victory” for Hong Kong, which decriminalized sexual acts between adult men in 1991.
“Still, the marriage system is an important institution in society both symbolically as well as granting access to a lot of rights,” he said.
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