Hong Kong’s top court has handed a partial victory to LGBTQ advocates, ruling that the government has not fulfilled its constitutional duty to provide any legal framework for same-sex relationships to be recognised.

jimmy sham court final appeal
Democrat and LGBTQ activist Jimmy Sham arrives at the Court of Final Appeal on June 29, 2023. File photo: Kyle Lam/HKFP.

The Court of Final Appeal delivered the judgement on Tuesday. As part of the judgement, the court made a declaration that it was unconstitutional of the government not to have alternative means for the legal recognition of same-sex relationships – such as civil unions – and that it had to provide such frameworks.

The declaration was suspended for two years, meaning the court gave the government two years to come up with a mechanism that recognises same-sex relationships before the court would say the government was in breach of the law.

Jerome Yau, co-founder of Hong Kong Marriage Equality, told HKFP that the ruling marked a “major development” for the recognition of same-sex marriage in Hong Kong.

Barrister Azan Marwah, who is also the legal advisor of Hong Kong Marriage Equality, told HKFP that Tuesday’s ruling was a victory for the LGBTQ community that would likely result in “real change.”

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Hong Kong pro-democracy LGBTQ activist Jimmy Sham. File photo: May James/HKFP.

“This is not the court saying there should be full marriage equivalent to what is available to heterosexual couples. The court is saying that the government has two years to think about the appropriate status that will give in substance the correct protection to [same-sex couples],” Marwah said in a press conference on Tuesday afternoon.

“The court is saying there should be something similar to, but not the same as marriage, that provides them with a status that will give them protection,” the lawyer added.

Content of alternative framework ‘unclear’

A five-judge panel at the Court of Final Appeal heard from LGBTQ activist Jimmy Sham’s legal team in June that the absence of same-sex marriage acceptance in Hong Kong sent a message that it was “less worthy” of recognition than heterosexual marriage.

The appeal panel was led by Chief Justice Andrew Cheung and also consisted of Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane.

Azan Marwah
Azan Marwah, barrister and legal advisor of Hong Kong Marriage Equality, speaks at a press conference on Sept. 5, 2023. Photo: Kyle Lam/HKFP.

Sham – who has been detained under the national security law – married his partner in the United States in 2013, but their marriage was not recognised under Hong Kong law.

Permanent judges Ribeiro and Fok and non-permanent judge Keane acknowledged that there was a need for same-sex couples to access an alternative legal framework in order to meet basic social requirements.

“[T]he absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples,” the judgement read.

While experts agreed that Tuesday’s court decision was a positive development, they said they were disappointed that the top court still did not recognise same-sex marriage. They also said there was little clarity on what a framework that would recognise same-sex relationships would look like.

Suen Yiu-tung
Suen Yiu-tung, an associate professor of gender studies at the Chinese University of Hong Kong, speaks at a press conference on Sept. 5, 2023. Photo: Kyle Lam/HKFP.

“Today, Hong Kong’s court finally took a step and said clearly that there should be an alternative framework for the legal recognition of same-sex relationships,” Suen Yiu-tung, an associate professor of gender studies at the Chinese University of Hong Kong speaking at the same press conference, said.

“But the content of the alternative framework, or what the core rights are, remain unclear,” he said.

Still, Suen said the court’s ruling that the government should provide an alternative legal framework to recognise same-sex relationships was important, because many same-sex couples faced various obstacles in their daily lives.

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A noticeboard with cards celebrating LGBT pride. Photo: Almond Li/HKFP.

Citing a study by the Equal Opportunities Commission (EOC), Suen said same-sex couples received differential treatment compared to heterosexual couples in more than 100 legal areas. Those areas included marriage, housing, employment, medical, inheritance, immigration and more, according to the report published by the EOC in June 2019.

He added the ruling of the city’s top court was “on the trajectory” of the LGBTQ rights development in other Asian countries and regions, citing the legalisation of same-sex marriage in Taiwan in 2019 and a historic ruling in Nepal in June this year which ordered the government to register same-sex marriage on a temporary basis.

Travis, who has been in a relationship with his same-sex partner for seven years, told reporters that Tuesday’s ruling was “beyond his expectation.” He said he hoped the court decision would eventually lead to the granting of rights such as spousal benefits offered by employers, as well as the right to make decisions after his partner’s passing.

Per the judgement, the government will submit written submissions to the court on a proposed framework under which same-sex relationships would be recognised.

Hong Kong Marriage Equality
Travis at a press conference held by Hong Kong Marriage Equality on Sept. 5, 2023. Photo: Kyle Lam/HKFP.

“The definition of rights should be inclusive, rather than trying to draw on a very narrow list, which then will invite more debates in the future,” Suen said.

A five-year court battle

Activists have often criticised Hong Kong’s limited rights and protection for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.

Cases involving Hong Kong’s LGBTQ+ rights have often played out in the court of law, which has seen some landmark victories, including one in 2019 in which the top court sided with a gay civil servant applying for spousal benefits and tax assessment, and another two years ago when the court granted equal parental rights for same-sex partners.

Since 2018, Sham has launched a string of legal challenges to fight for the city to recognise overseas same-sex marriages.

His first bid was rejected by the Court of First Instance in September 2020 and his subsequent appeal was dismissed by the Court of Appeal in August last year. But the top court agreed to hear the democrat’s arguments last November, saying the questions of laws he raised were of great general or public importance.

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Court of Final Appeal. Photo: GovHK.

The Court of Final Appeal was asked to rule on three questions: whether the exclusion of same-sex couples from the institution of marriage was a violation of the right to equality under the Hong Kong Bill of Rights and Basic Law; if it was a violation of the right to privacy and/or equality when same-sex couples were not allowed to marry in Hong Kong and there were no alternative means of legal recognition such as civil partnerships; and whether the lack of recognition of foreign same-sex marriage violated the right to equality.

Whilst same-sex sexual activity was legalised in 1991, Hong Kong has no laws to protect the LGBTQ community from discrimination in employment, the provision of goods and services, or from hate speech. Equal marriage remains illegal, although a 2023 survey showed that 60 per cent of Hongkongers support it. Despite repeated government appeals, courts have granted those who married – or who entered civil partnerships – abroad some recognition in terms of tax, spousal visas and public housing.

Sham has been detained since March 2021 after he was denied bail in a high-profile national security case involving 47 pro-democracy figures. He pleaded guilty to conspiracy to commit subversion in connection with an unofficial legislative primary poll held in July 2020 and is awaiting to be sentenced after the trial of his co-defendants concludes.

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Ho Long Sze Kelly is a Hong Kong-based journalist covering politics, criminal justice, human rights, social welfare and education. As a Senior Reporter at Hong Kong Free Press, she has covered the aftermath of the 2019 extradition bill protests and the Covid-19 pandemic extensively, as well as documented the transformation of her home city under the Beijing-imposed national security law.

Kelly has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration. Prior to joining HKFP in 2020, she was on the frontlines covering the 2019 citywide unrest for South China Morning Post’s Young Post. She also covered sports and youth-related issues.