A Hong Kong court on Friday upheld a government policy which denies civil partnerships to same-sex couples.
In the city’s first-ever case on civil partnerships, the Court of First Instance ruled against the woman applicant – known only as MK. She filed a legal challenge against the government last June, arguing that the ban on same-sex civil partnerships was unconstitutional.
However, Judge Anderson Chow said that the government did not violate MK’s constitutional rights in denying her same-sex marriage, or in its failure to provide a legal framework for recognising same-sex relationships, such as civil unions.
In his 41-page judgment, Chow said he was taking a “strict legal approach” in deciding the case, even though he was aware that people in society have “diverse and even diametrically opposed views.”
Chow said that the definition of marriage under the Basic Law clearly referred to heterosexual ones.
“The evidence before the court is not, in my view, sufficiently strong or compelling to demonstrate that the changing or contemporary social needs and circumstances in Hong Kong are such as would require the word ‘marriage’ in Basic Law Article 37 to be read as including a marriage between two persons of the same sex,” Chow wrote.
“It is obvious that were the court to ‘update’ the meaning of ‘marriage’ to include… same-sex marriage, it would be introducing a new social policy on a fundamental issue with far-reaching legal, social and economic consequences and ramifications,” he added.
Chow also said the government had no legal obligation to provide substitute arrangements to same-sex couples, such as civil unions or civil partnerships.
‘Not court’s role’
In the hearing held in May, MK’s lawyers said that the ban infringed on her rights to privacy and equality under the Basic Law and the Bill of Rights Ordinance.
The government’s lawyer responded saying that marriage would be “diluted and diminished” and “no longer special” if the right to civil partnerships was granted to same-sex couples.
On Friday, the court said that the issue was more appropriate for the Legislative Council.
“Whether there should, or should not, be a legal framework for the recognition of same-sex relationships is quintessentially a matter for legislation,” Chow wrote.
In a candid passage, the judge said that the government’s inaction on LGBTQ+ rights on the legislative front would mean that the burden is passed to the judiciary.
“There is much to be said for the government to undertake a comprehensive review of this matter. The failure to do so will inevitably lead to specific legislations or policies or decision of the government… being challenged in the court on the ground of discrimination on an ad-hoc basis,” he wrote.
Hong Kong has seen two high-profile court victories for the LGBTQ+ community in recent years. In June, the Court of Final Appeal ruled in favour of a gay civil servant applying for spousal benefits for his husband.
Last July, the lesbian expat known as QT also won her case in the top court, affirming that it was unconstitutional for the government not to provide a spousal visa for her same-sex partner.
Amnesty International on Friday said the judgment was a setback and a “bitter blow” for Hong Kong’s LGBTQ+ community.
“Sadly, the discriminatory treatment of same-sex couples will continue for the time being. This result is deeply disappointing but will not dampen the fight for LGBTI rights in Hong Kong,” the group said in a statement.
Amnesty also called for a review of laws, policies and practices in relation to discrimination based on sexual orientation, gender identity and intersex status.
“This judgment must not be used as an excuse to further undermine the rights of LGBTI people. The Hong Kong government needs to step up and take all necessary measures to deliver equality and dignity for all, regardless of who people love,” it added.
Brian Leung, chief operating officer of the rights group BigLove Alliance, said that it was a burden on the LGBTQ+ community to fight their battles in court.
“If we have to take it to the Court of Final Appeal every time, it is a waste of taxpayer’s money and our effort,” he said.
Leung added that he was not enthusiastic about the government passing same-sex marriage legislation, because the government adopted an attitude of “not listening and not making concessions.”
Concern group Hong Kong Marriage Equality also said it was disappointed by the ruling.
“This judgment does not change the need for the government to start reforming our laws to protect same-sex families. It is simply wrong to see same-sex families facing hardships because of discrimination and unequal treatment in law,” said the group’s co-founder Jerome Yau.
In his judgment, Chow acknowledged that there were international developments in recognising same-sex marriage, but there was a “sharp division of public opinion” in Hong Kong.
Hong Kong’s LGBTQ+ activists have taken the strategy of challenging specific decisions or policies of the government, but MK’s case was the first of its kind to urge the court to approve same-sex marriage.
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