The Hong Kong Court of Final Appeal finished hearing submissions from parties on Thursday in a case involving the constitutionality of Hong Kong’s preclusion of same-sex marriage. This is the first time the top Hong Kong court dealing directly with the homosexual couples’ right to marry. The applicant, Jimmy Sham, also happens to be a defendant in the “Hong Kong 47” case.

The lower Court of Appeal previously dismissed the constitutional review, citing four primary reasons for its decision.

First, the interpretation of the term “marriage” in Article 37 of the Basic Law cannot include same-sex marriage. The court believed that same-sex marriage was first legally recognised in the Netherlands in 2001. For that reason, in the court’s view, the drafters of the Basic Law were not likely to have included same-sex marriage in the Basic Law, which was adopted in the 1990’s.

Second, the Court of Appeal disagreed with the applicant’s argument that same-sex couples’ right to marry can arise from the right to equality and the right to privacy. Under constitutional law, the principle of lex specialis provides that if there is a specific provision on a particular subject matter, it will prevail over some other general provisions. Lex specialis, therefore, dictates that the right to equality and the right to privacy cannot be the grounds for same-sex couples to access the right to marry.

Third, the court did not accept the argument that the Hong Kong government had a positive duty to protect the same-sex couples’ right to marry. The Court of Appeal contended that the law only prevents the government from interfering with citizens’ right to form a family, not ensuring that such a right is recognized.

Fourth, the Court of Appeal held that discrimination is not sound legal ground because other grounds of law cannot circumvent the special status of marriage in Article 37, which prefers heterosexual marriages.

Sham applied to the Court of Final Appeal seeking to challenge the rightfulness of the lower court’s reasonings. In doing so, Sham introduced the concept of core rights. He suggested that the government has a positive duty to protect the core rights of married couples, regardless of their sexual orientation, including the right to inheritance. The government challenged that the concept of core rights is too vague and will only attract more legal challenges.

Previously, the Hong Kong Court of Final Appeal demonstrated its judicial open-mindedness occasionally on the issue of sexual equality. In February, the court recognized pre-operative transexual citizens’ right to have their gender marker on HKID recorded according to their acquired gender. A few other cases on the marital rights of same-sex couples are also pending judgments at the Court of Appeal, including the right of inheritance and the right to apply for public housing unit as a married couple.

The applicant, Sham, is also facing trial in the case of conspiracy to commit subversion. Sham was one of the pro-democracy activists who participated in the 2020 pro-democracy Hong Kong primaries. The prosecution alleges that the primary election was an effort to take control of the Legislative Council and to paralyze the government’s operation. Thursday marks day 79 of the trial, and Sham has been remanded for more than 700 days since the trial began.