LGBT activist Jimmy Sham has launched a new legal bid to force Hong Kong to recognise the status of same-sex couples who were married overseas, with his lawyer arguing that differential treatment from heterosexual couples violates people’s right to equality.

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Jimmy Sham at Lek Yuen Estate, Shatin. Photo: May James/HKFP.

Sham, who failed in his initial judicial challenge in September 2020, appealed against the lower court’s ruling before a three-judge panel consisting of Chief Judge of the High Court Poon Shiu-chor, Vice President of the Court of Appeal Susan Kwan and Justice of Appeal Carlye Chu.

Sham is currently detained under the national security law for conspiracy to commit subversion by organising or taking part in an unofficial democratic primary election in July 2020. He did not attend Thursday’s hearing and all legal representatives also took part remotely via video conference.

‘Rights to equality’

The activist’s lawyer Hectar Pun argued that same-sex couples have similar needs to their heterosexual counterparts in terms of acknowledgement of their relationship, especially when it comes to the day-to-day discrimination which homosexual couples face such as in handling a partner’s medical and housing issues.

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Pride Parade in Hong Kong. File photo: Kris Cheng/HKFP.

He said it was differential treatment for Hong Kong to recognise overseas heterosexual marriage but not those of homosexual couples, adding it implied that same-sex relationships were of less value. This violated the principle that all residents should be treated equally as prescribed by the Basic Law and the Hong Kong Bill of Rights.

Article 37 of the Basic Law states that “[t]he freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.” Pun argued the provision did not specify the protection was only for heterosexual residents.

Pun added that a person’s sexual orientation is a “personal characteristic” that cannot be changed and that such recognition does not hurt the existing marriage system.

High Court
High Court. File photo: Candice Chau/HKFP.

“The traditional concept of marriage is sufficiently protected under the law, and we don’t see how recognition of overseas same-sex marriage would undermine that,” Pun said.

Marriage between man and woman

Stewart Wong, for the Department of Justice, said Article 37 only protects heterosexual marriages because the city’s Marriage Ordinance stipulates that a marriage is between a man and a woman. So the court had no obligation also to safeguard the right to marriage of same-sex couples.

Wong added that not recognising homosexual marriage was intended to protect the existing marriage and family system.

The court is set to hand down a ruling within six months.

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Almond Li is a Hong Kong-based journalist who previously worked for Reuters and Happs TV as a freelancer, and as a reporter at Hong Kong International Business Channel, Citizen News and Commercial Radio Hong Kong. She earned her Masters in Journalism at the University of Southern California. She has an interest in LGBT+, mental health and environmental issues.