Hong Kong top court affirms government obligation to recognise same-sex couples News
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Hong Kong top court affirms government obligation to recognise same-sex couples

The Hong Kong Court of Final Appeal handed down a judgment on Tuesday finding that the Hong Kong government has a duty to provide an “alternative legal framework for recognition of same-sex relationships.” The court also held that the government’s longstanding failure to do so amounts to a violation of the constitutional right to privacy, but it denied that the right to same-sex marriage is constitutionally guaranteed.

The appellant is Jimmy Sham Tsz Kit. He and his husband got married in New York 10 years ago and have been challenging Hong Kong’s refusal to recognize same-sex marriage since 2018.

By a majority of 3 to 2, the court acknowledged same-sex couples’ need for an alternative legal framework in order to meet basic social requirements as well as to have a sense of legitimacy. Following previous challenges surrounding same-sex couples’ access to dependent visas, spousal benefits for civil servants and access to public housing, the court observed that litigation and court proceedings have subjected same-sex couples to publicity, stress and expenses, while they still suffer from difficulties due to the non-recognition of their relationships.

However, the five-judge panel unanimously upheld lower court rulings which held that the constitutional freedom of marriage guaranteed and protected under Hong Kong’s Bill of Rights and the Basic Law (the “mini constitution”) is confined to opposite-sex marriage. Further, as same-sex couples lack the capacity to enter into a legally recognised marriage in Hong Kong, any recognition of foreign same-sex marriages is also denied according to the lex specialis principle.

Sham’s initial attempt and his first appeal failed, as lower courts were unwilling to recognise a constitutional right for same-sex couples to enter into a marriage in Hong Kong. The courts were also unwilling to recognise foreign same-sex marriages under Hong Kong law, and they denied that authorities have a constitutional obligation to enable official recognition of same-sex partnerships.

In fact, Sham was not the first to challenge the failure of the laws in Hong Kong to recognise and accept same-sex marriage. In 2019, the Court of First Instance ruled that the definition of marriage is confined to the “voluntary union for life of a man with a woman” and that the constitutional freedom of marriage guaranteed and protected under the Bill of Rights and the Basic Law is confined to opposite marriage. Since then, Hong Kong Courts, even the higher courts, have been reluctant to depart from this ruling.

Other than an LGBTQ+ activist, Sham is also a pro-democracy activist. He used to be the former convenor of Civil Human Rights Front, the pro-democracy organisation which organised the demonstration which started the 2019 Anti-Extradition protests in Hong Kong. He was arrested in 2021 for violating the National Security Law, which was enacted by the government to suppress anti-government activists after the Anti-Extradition protests in 2019, and has been remanded in custody since then. Last year, he pleaded guilty to violating the National Security Law.