Hong Kong must provide an alternative to marriage in order to legally recognise the rights of same-sex couples, the city’s highest court has declared, opening the way for civil unions.
However, it rejected appeals against current laws that restrict marriage to heterosexual couples and refuse to recognise overseas same-sex marriages, despite majority support among the population.
The ruling said Hong Kong’s government was “in violation of its positive obligations” under the bill of rights to provide a legal framework to recognise same-sex couples outside the institution of marriage, and gave it two years to establish a system.
The court challenge was lodged in 2018 by the LGBTQ+ rights and pro-democracy activist Jimmy Sham Tsz-kit, who had argued Hong Kong should legally recognise his and his husband’s marriage, which took place in New York five years earlier.
Sham, who is in prison, had argued that denying same-sex couples the right to marry, failing to provide an alternative legal recognition of their relationship, and refusing to recognise overseas marriages went against provisions in Hong Kong’s mini-constitution, the basic law, and its bill of rights.
Previous courts had dismissed all three grounds for appeal in 2020 and 2022. On Tuesday, the court’s panel of judges were unanimous in upholding the current laws, which restrict marriage to heterosexual couples, and which do not recognise overseas same-sex unions. However, they were split 3-2 in their opinions on the second question.
Justices Joseph Fok, RAV Ribeiro and Patrick Keane said the need for same-sex couples to have access to legal recognition of their relationship had been “compellingly advocated”.
“First, such recognition is required to meet basic social needs similar to those experienced by different-sex couples in stable relationships,” they said. “Secondly, the absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples.”
The judges noted potential difficulties for long-term couples during medical care, or disposing of mixed assets at the end of a relationship. It said the formation of a new framework brought many questions, including who would have access to it and how it would govern property rights, legal authority, and relationship dissolution, but said fears that it would be unworkable were “unfounded”.
The ruling is the first time the court of final appeal has directly addressed same-sex marriage. Homosexuality was decriminalised in 1991 and legal challenges have pushed an otherwise unenthusiastic government to make improvements in some rights for same-sex couples.
Recent polling has found support for same-sex marriage has grown from 38% to more than 60% in a decade; however, activism of any kind has become increasingly difficult under the government’s security crackdown after the 2018 pro-democracy protests. Sham is in jail on charges under the national security law. He was among the 47 activists, campaigners, and politicians arrested over informal primaries that were later declared illegal.
The Hong Kong government is increasingly tied to the central government in China, where there is a growing crackdown on LGBTQ+ groups under the rule of Xi Jinping.
Esther Leung, the campaign manager of the Hong Kong Marriage Equality group, said Tuesday’s ruling was a “major step forward [but] falls short of what is really at stake in this case: full inclusion in marriage”.
“As long as the exclusion from marriage remains, same-sex couples and their families are denied the same respect and protections as their neighbours.”
Leung urged government to note the popular support of same-sex marriage, and “work proactively with stakeholders to formulate a robust legal framework … as soon as practicable”.
Activists hope the Hong Kong ruling could also encourage further acceptance of same-sex marriage across Asia, where it is legal only in Taiwan and Nepal.
