Top Court Tells HK to Create Legal Framework for Same-Sex Unions
(Bloomberg) -- Hong Kong’s top court ordered the government to establish laws recognizing same-sex partnerships, representing one of the biggest victories yet for LGBTQ activists in the financial hub.
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The lack of such a framework puts the government in violation of the city’s Bill of Rights, the Court of Final Appeal said Tuesday in a ruling. At the same time, the court dismissed part of an appeal to recognize same-sex marriages, including overseas unions.
There is a need for same-sex couples to have “legal recognition on their relationship in order to meet basic social requirements and to provide them with a sense of legitimacy,” the judges wrote in their decision, adding that the inability to acquire such recognition “is potentially demeaning of same-sex couples.”
Like most of Asia, Hong Kong doesn’t legally recognize same-sex unions or partnerships, denying them the same rights as marriages between men and women. Multinational businesses in the city have increasingly shown support for LGBTQ rights, and greater recognition for same-sex couples in Hong Kong could provide a much-needed boost for the city in its competition with regional rivals such as Singapore and Tokyo.
The case marks the first time the city’s highest court has directly addressed the issue of same-sex marriage, and was brought by jailed pro-democracy activist Jimmy Sham, who has been seeking to have his New York-registered marriage recognized in the former British colony.
A representative from the Hong Kong government didn’t immediately respond to a request for comment on how it would implement the ruling.
“It is a significant victory,” Hong Kong Marriage Equality, a local advocacy group, said in a statement. The judgement “marks another important step towards equal love and a more harmonious society for all.”
The judgment is the latest in a series of court rulings that have advanced LGBTQ equal rights over several years. The government recognizes the overseas unions of couples in specific circumstances, including for foreigners seeking spousal visas as a result of a Court of Final Appeal decision in 2018. In February, the court struck down a rule requiring transgender people to undergo surgery before changing their government identification cards.
Improvements to Hong Kong’s LGBTQ laws could help firms recruit talent to the city, including from its chief rival Singapore. More than 100 employers, including Cathay Pacific Airways Ltd., as well as multinationals like Goldman Sachs Group Inc. and McKinsey & Co. supported a call for recognition of same-sex relationships by Equal Love Hong Kong, a coalition of business and community organizations. Bloomberg LP, the parent company of Bloomberg News, is also a supporter.
Read more: Asia-Wide Fight for Same-Sex Marriage Faces Hong Kong Test
Singapore last year repealed a colonial-era law criminalizing sex between men but also amended its constitution to protect the current definition of marriage as between a man and a woman. That amendment protects policies based on the definition of marriage, including public housing rules or financial benefits for married couples, from challenges in court.
The Hong Kong court gave the government two years to comply with the ruling after the issue of a final order, which would happen after both parties gave written submissions.
The two-year deadline acknowledges the political and practical difficulties for the government to establish an alternative framework for same-sex partnerships, said Azan Marwah, a lawyer who has successfully argued on behalf of LGBTQ challengers in lower-court cases.
“The court is saying, in substance, there needs to be equality,” he said. “If you’re going to have inequality then those inequalities have to be justified.”
By calling for broader recognition of same-sex partnerships, the court was sending “a positive move” to the LGBTQ community in Hong Kong, said Yiu-tung Suen, associate professor of the gender studies program at the Chinese University of Hong Kong.
“Now there should at least be an alternative framework for legal recognition of same-sex relationships,” he said, adding that much will now ride on how the government follows up on the decision.
“There is still a lot of uncertainty about how that alternative framework will be established and whether it’s going to be a very narrow interpretation of what rights of same-sex couples are to be protected,” he said.
Hong Kong’s latest ruling comes amid a push across the region to use the courts to advance LGBTQ rights. In Japan, two courts have ruled same-sex-marriage bans are unconstitutional. In June, Nepal’s Supreme Court issued an order for the registration of same-sex marriages, and India’s Supreme Court is likely to issue a decision this year in a marriage equality case.
Taiwan in 2019 became the first place in Asia to allow same-sex couples to marry.
“Hong Kong recognizing same-sex partnerships should strengthen its appeal in attracting top talent in the region,” said Johannes Hack, president of the German Chamber of Commerce in Hong Kong. “It showcases the city as an inclusive and open place to work.”
Read more: How LGBTQ Life in China Has Gotten Tougher Under Xi: QuickTake
--With assistance from Young-Sam Cho.
(Updates with details throughout.)
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