Hong Kong’s top court ruled in favour of recognising same-sex partnerships on Tuesday, saying in its judgement that “the absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples.”
It marked the latest in a long series of litigations surrounding LGBTQ issues, as same-sex couples in the city have been forced to carve out rights from laws often ruled as discriminatory since the city decriminalised sexual acts between gay men in 1991. Lesbian sex was never explicitly outlawed, although stigma surrounded such relationships, too.
LGBTQ rights remains one of the areas in which the city stands apart from mainland China, where same-sex sexual acts have been legal since 1997 but recent years have seen a crackdown on the community.
Tuesday’s ruling marked the culmination of a five-year court battle for marriage equality launched by pro-democracy and LGBTQ rights activist Jimmy Sham.
Sham, who has since been detained since March 2021 under the national security law, married his partner in New York in 2013. He later launched a legal challenge in Hong Kong, arguing that his right to equality, protection against discrimination and privacy were violated by the failure of the city’s laws to allow same-sex couples to marry, failure to offer an alternative framework to recognise same-sex relationships, and failure to legally acknowledge overseas same-sex unions.
That bid was dismissed in 2020, and a subsequent appeal went the same way in August 2022, before the Court of Final Appeal agreed last November to hear Sham’s appeal, saying the points raised were of great importance.
In the judgement handed down on Tuesday, Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane, rejected Sham’s argument that gay couples had the right to marry under the city’s mini-constitution the Basic Law and its Bill of Rights, saying that right was enshrined for heterosexual partnerships. The appeal panel also dismissed an assertion that failing to recognise same-sex unions entered into abroad violated the right to equality.
But judges Ribeiro, Fok and Keane acknowledged that there was a need for same-sex couples to have access to an alternative legal framework to meet basic social requirements, and gave the government two years to come up with that framework.
Jerome Yau, co-founder of Hong Kong Marriage Equality, told HKFP on Tuesday the ruling marked a “major development” for the recognition of same-sex marriage in Hong Kong.
Yau was echoed by Suen Yiu-tung, an associate professor of gender studies at the Chinese University of Hong Kong, who spoke at a press conference after Tuesday’s court proceedings.
“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 said. “But the content of the alternative framework, or what the core rights are, remain unclear.”
Citing a 2019 study by the Equal Opportunities Commission, 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.
Public support for granting same-sex couples the same rights as those enjoyed by married heterosexual couples has grown in the past decade, according to a long-term research project run by the University of Hong Kong, the Chinese University of Hong Kong, and the University of North Carolina in the US.
The latest findings, published in May, showed that 60 per cent of Hongkongers who took part in a survey supported same-sex marriage, up from 38 per cent in 2013 when the poll was first conducted.
In 2013, the Court of Final Appeal gave transexual individuals who had undergone sex reassignment surgery (SRS) the right to marry as their affirmed gender.
Hong Kong’s top court in February ruled in favour of two transgender men, affirming that it was not necessary for them to undergo invasive full SRS to change the gender marker on their identity cards.
Like Sham’s long journey through the judicial system, the legal challenge against the government policy which stated that SRS was required to change an individual’s gender marker lasted five years. Launched by Henry Tse and two other trans men “Q” and “R,” it was dismissed by the city’s lower court. Tse and Q later lodged an appeal at the Court of Appeal, which upheld the government’s stance, before being heard at the Court of Final Appeal.
In the written judgement handed down in February, a panel of five judges sided with the by then two appellants, Tse and Q, ruling that the policy violated the right to privacy under the Bill of Rights and “imposes an unacceptably harsh burden on the individuals concerned.”
The panel also called SRS “at the invasive end of the treatment spectrum for gender dysphoria” and “not medically required by many transgender persons.”
Following the ruling, HKFP learned in March that the Immigration Department had suspended accepting applications to change gender markers, even from those who had completed full SRS.
The Immigration Department said it was “studying the judgement carefully and reviewing” its policy, adding that it would “seek legal advice on follow up actions to comply with the judgement.” It did not give a timeframe for its policy review, telling HKFP only that it aimed to complete it within “reasonable time.”
Same-sex parents were granted a pathway to joint guardianship of their children after a landmark Court of First Instance judgement in 2021.
The court ruled in May that year that a non-biological mother should be granted joint custody of her children with her ex-partner, who was the biological mother.
Following the separation of the couple, the children’s birth mother sought to formalise the non-biological mother’s parental rights to guarantee her legal status to her children. Given that both partners always shared the care of their children, the court said it would not be in the children’s best interests if the application was unsuccessful.
While it remains that only a biological parent may be listed as legal parent – which, prior to the ruling, caused problems for couples who chose to have children with the assistance of a sperm or egg donor – it is now possible to apply to the court to formalise the parental rights of a non-biological partner.
Spousal benefits, tax assessment
In June 2019, the Court of Final Appeal ruled that employment-related spousal benefits such as medical coverage and joint tax assessment should be extended to same-sex couples who married overseas.
That case centred on a challenge put forward by immigration officer Angus Leung in 2015, whose employer, the Civil Service Bureau, refused to change Leung’s marital status or grant benefits to his partner, whom he married in New Zealand in 2014.
Leung also argued that he was discriminated against on the basis of his sexual orientation by the Inland Revenue Department, which said he was not entitled to opt for joint assessment with his partner because same-sex marriage was not recognised.
In 2017, the Court of First Instance sided with Leung in the spousal benefit application, with judge Anderson Chow writing that allowing benefits to same-sex partners would not constitute indirect legalisation of same-sex marriage.
However, the decision was overturned by the Court of Appeal in June 2018, which said that the Basic Law favours heterosexual marriage and therefore it is not discriminatory for gay people to be excluded from marrying
In a unanimous decision, the Court of Final Appeal judges ruled that Hong Kong’s civil service and Inland Revenue Department both failed to justify their policy towards Leung, and by extension other same-sex married couples.
The judges wrote that the protection of heterosexual marriage was a legitimate aim, but there was no connection between that and the policies of Hong Kong’s civil service and taxation authority.
Same-sex spouses have been eligible for dependent visas since a landmark 2018 case involving a woman known as QT, who was forced to stay in Hong Kong on a tourist visa after her partner, with whom she was in a civil union, moved to the city for work on the grounds that their partnership was not recognised under Hong Kong law.
QT filed a legal challenge against the Immigration Department decision in 2014, which was dismissed by the Court of First Instance in 2016. However, the Court of Appeal reversed that ruling the following year, prompting the Immigration Department to file an appeal to the city’s top court.
In a unanimous judgement handed down in July 2018, the court agreed with the Court of Appeal that the differential treatment towards QT – namely denying her a spousal visa on the basis of marital status – amounted to unlawful discrimination.
The case was closely watched by LQBTQ advocates and the city’s business community, stoked by fears that if the Immigration Department’s policy held, it would have reduced the pool of quality foreign employees.
While Hong Kong’s High Court ruled in 2020 that same-sex couples should enjoy equal rights under the city’s inheritance laws, the government has sought to appeal that decision.
The September 2020 judgement, in which a judge said “the differential treatment accorded to same-sex married couples and opposite-sex married couples… cannot be justified, and constitutes unlawful discrimination,” was seen as a victory for the city’s LGBTQ community.
It came after a legal challenge was filed by Edgar Ng over concerns his partner, Henry Li, would not be able to inherit a government-subsidised flat bought in Ng’s name in 2018 in the absence of a will. The couple were married in the United Kingdom in 2017.
The court of appeal heard the government’s appeal against that decision last December, with the government’s lawyer arguing that treating heterosexual and same-sex couples differently under the city’s two inheritance laws could be justified because they were “materially distinguished.”
HKFP reported in December that the appeal judgement was expected within six months, however, it has yet to be handed down.
After death arrangements
In late 2020, Ng, who had suffered from depression, died by suicide. Months later, Li launched a legal bid against the government for refusing to allow him to identify Ng’s remains and from attending to administrative arrangements surrounding his death without first receiving authorisation from Ng’s mother.
A year later, Li dropped his challenge after the government clarified its position and regulations on after-death arrangements for surviving same-sex spouses in a letter to Li in July 2021.
That October, the court heard that position, which stated “there is no distinction between same-sex and opposite-sex spouses for the term ‘spouse’” under the Coroners’ Ordinance.
However, Li’s legal representative later noted that the government’s position excluded a host of other rights and treatments for same-sex widows and widowers in after-death matters, including the right to consent to organ donation for education or research, and their right to be buried together.
Access to subsidised housing
In March 2020, the High Court ruled that excluding same-sex married couples from access to government-subsidised housing as “ordinary families” was unconstitutional and unlawful.
The decision came after Nick Infinger, who married his partner in Canada in 2018, launched a legal bid that same year challenging the Housing Authority’s refusal to consider his application for public housing because his same-sex union was not recognised.
The court ruled in favour of Infinger, concluding the Housing Authority’s policy “plainly cannot be justified as a measure to ensure the administrative effectiveness in implementing the Housing Authority’s PRH policy, which is to address the housing needs of low-income families.”
A second case surrounding the Housing Authority’s Home Ownership Scheme was brought to court by Ng before his death, with Li taking over after his partner’s suicide. Ng launched the legal challenge after buying a government-subsidised flat and being told that Li was not eligible for joint-ownership because their marriage was not recognised.
In June 2021, the court sided with Li and his late partner, saying that the city’s subsidised housing policies, which do not acknowledge same-sex partners as a tenant’s family member, “constitute unlawful discrimination on the ground of sexual orientation.”
Like the court’s ruling on equal inheritance rights, both of these rulings have been appealed by the government in a hearing last February.
The judgement has yet to be handed down.
Transgender public toilet access
The High Court in January heard a challenge to the city’s public convenience laws, which argued that transgender people should be allowed to use public toilets designated for their chosen gender before they have undergone surgery.
The legal bid filed by K, who identifies as a male but was born a woman, sought to amend the Public Conveniences (Conduct and Behaviour) Regulations to allow a transgender person undergoing real life experience (RLE) treatment under the certification and care of a doctor to use public toilets of their identified gender.
RLE requires people who are transitioning to live in their identified gender consistently on a day-to-day basis, which can include the use of public conveniences of that gender.
However, the legislation in question currently criminalises people over the age of five entering public conveniences allocated for the opposite sex. As K has not yet undergone a full sex replacement surgery, at the time a requirement for changing their gender marker, they were legally banned from using male public toilets.
HKFP reported in January that a decision was expected the following month. No judgement has yet been delivered, but the ruling regarding gender markers may have implications for this case.
Age of consent, archaic laws
Perhaps the city’s first legal victory for the LGBTQ community came in 2005, when the High Court ruled that laws setting the age of consent for men who have sex with men at 21 was unconstitutional.
The age of consent for gay sex was set at 21 after it was decriminalised in 1991, higher than the age of consent for heterosexual activity, which was 16. However, it took until 2014 for the provisions to be formally removed from the Crimes Ordinance.
In 2019, another High Court ruling struck down a series of laws targeting male sexual acts for being unconstitutional because “no comparable offences exist for heterosexuals or female homosexuals.”
Two of the laws, for example, criminalised the procuring of a man for buggery or gross indecency with another man.
“These provisions are inconsistent with the right to equality… and discriminatory in nature. They are unconstitutional and should be struck down,” the written judgement read.
The government requested to amend other laws, including one that saw men face up to life in prison for having sex with a boy under the age of 16, while men who had sex with a girl under the age of 16 faced a maximum jail sentence of five years.
The judge agreed to temporarily equalise the penalty for both crimes at five years until lawmakers could write a new law.
Gay Games 2023
In 2017, Hong Kong was announced as the host city of the 11th Gay Games, prevailing over competing bids from Washington DC and Guadalajara, Mexico. It marked the first time in the 40-year history of the games it was handed to an Asian city.
The news, hailed as a stepping stone for advancing LGBTQ issues in the city, was quickly marred by attacks from conservative corners. Junius Ho, a pro-Beijing lawmaker, claimed during a Legislative Council meeting in June 2021 that Hong Kong did not want the event’s “dirty money”, adding that he was worried it might lead to the legalisation of same-sex marriage.
Originally slated for 2022, the inclusive sporting event was postponed until November and Guadalajara was added as a co-host because of the uncertainty surrounding Hong Kong’s enduring Covid-19 restrictions.
Beyond the pandemic, Gay Games Hong Kong has been hampered by a lack of government cooperation and internal strife, attracting 2,000 participants rather than the hoped-for 12,000.
Last month, the government issued a seemingly unprompted warning stating that the event must be conducted in a “lawful, safe and orderly manner.”
Government-subsidised conversion therapy
In 2003, the Constitutional and Mainland Affairs Bureau began administering an annual Equal Opportunities (Sexual Orientation) Funding Scheme to support projects promoting equality for sexual minorities.
However, since 2017, around HK$694,000 has been distributed to groups said to advocate efforts to change sexual orientation.
Hongkongers who engaged with one such Christian organisation spoke to HKFP about their experiences earlier this year. “I was torturing myself, but I rationalised it by thinking that Christians must go through pain,” Cheung said. “After all, Jesus sacrificed himself for us.”
Globally, efforts to change sexual orientation, commonly referred to as conversion therapy, have been accepted to cause long-lasting psychological damage and are viewed as inherently discriminatory. In 2020, the United Nations called for an international ban on the practice.
Only LGBTQ radio show axed
Government-funded broadcaster RTHK axed We Are Family, the city’s only radio show that promoted LGBTQ equality in July citing “programme rescheduling.”
Host Brian Leung, who fronted the show since its inception in 2006, said: “At a time when Hong Kong saw drastic changes, many things are just a matter of time, and we had mentally prepared ourselves for what may come.”
|💡If you are in need of support, please call: The Samaritans 2896 0000 (24-hour, multilingual), Suicide Prevention Centre 2382 0000 or the Social Welfare Department 2343 2255. The Hong Kong Society of Counselling and Psychology provides a WhatsApp hotline in English and Chinese: 6218 1084. See also: HKFP’s comprehensive guide to mental health services in Hong Kong.|
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