Lawyers and activists have urged the government to take the lead in drawing up a legal framework for the recognition of same-sex relationships in Hong Kong rather than leaving decisions to the courts, which struck down a major case seeking to recognise foreign gay marriages last week.
They accused the administration of leaving the burden on people to mount legal challenges on the grounds of discrimination, which could be expensive, time-consuming and emotionally draining for plaintiffs.
The LGBT community was disappointed by the High Court’s ruling on September 18 when it rejected a bid by civic rights activist Jimmy Sham Tsz-kit, who filed a lawsuit for Hong Kong to recognise foreign same-sex marriages. Sham argued that the government’s decision not to recognise marriages performed overseas, such as his, which was registered in New York, violated the right to equality guaranteed by Article 25 of the Basic Law, the city’s mini-constitution.
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However, Justice Anderson Chow Ka-ming found Sham’s attempt to achieve complete parity of legal recognition “too ambitious” and “fundamentally flawed” when the basic question of whether there was differential treatment “cannot be answered in a vacuum”, without subject matter or context, which Hong Kong’s top court had ruled as a “crucial” consideration.
Sham was considering whether to file an appeal, according to a source. Plaintiffs have 28 days to do so for final hearings.
The community did, however, see a breakthrough that day in a separate case when Edgar Ng Hon-lam won his challenge seeking equal inheritance rights for his partner. Ng applied for judicial review in November 2019 after finding out his husband, Henry Li Yik-ho, would be unable to inherit their home as the marriage was not legally recognised in Hong Kong.
While human rights lawyer Mark Daly, who represented Ng, welcomed the judgment he said lawyers could not rewrite the law, but only strike down issues that discriminated against the LGBT community.
“It is unfortunate that we have to have brave clients standing up to take these cases, which is not easy for them to do, to make incremental improvements in the area of discrimination against the LGBT community,” Daly said.
The city’s only openly gay legislator, Raymond Chan Chi-chuen, agreed, and called for a public consultation on allowing same-sex unions in Hong Kong as a further step to recognising LGBT rights as human rights.
“My position is that the government should hold a public consultation and study the matter, with the ultimate goal of establishing an institution with which everyone, regardless of his or her sexual orientation, can enter into a marriage or civil union,” Chan said.
The lawmaker believed the goal should be that both LGBT and straight couples received the same benefits and protection whether it be in a marriage or civil union.
He added: “It is the government's job to make sure that it happens, sooner rather than later.”
However, pro-establishment lawmaker Holden Chow Ho-ding said there were still those in the community who opposed a change in legislation.
“The issue of legalising same-sex marriage is deeply controversial, and I have received countless opinions from parents and religious groups that they have grave concerns about same-sex marriage, such as it would give rise to the issue of adopted children and how to teach our kids about marriage in textbooks.”
Hong Kong currently has four anti-discrimination laws, relating to sex, disabilities, family status and race. There is no law against LGBT discrimination.
There have been a number of legal challenges brought to the Hong Kong courts in recent years, which have resulted in gradual progress for LGBT people, including the right to obtain visas for dependants and spousal benefits for same-sex partners.
In October last year, a court ruled in favour of the government in a legal challenge by a woman – known as MK – who argued the ban on same-sex civil partnerships was unconstitutional. Justice Anderson Chow said in strictly legal terms, the government did not violate her constitutional rights.
A few months earlier, in June, senior immigration officer Angus Leung Chun-kwong won a legal battle against the government, when the Court of Final Appeal granted the city’s gay partners the right to submit joint tax returns. Gay civil servants were also given spousal benefits, including medical and dental, in line with those of their heterosexual colleagues. In March, the High Court court ruled that married same-sex couples had the right to apply for public housing.
Tino Chan, the LGBTQI programme manager at the Faith in Love Foundation, a charity founded by Gigi Chao, one of Asia’s most outspoken gay rights advocates, called the inheritance and public housing cases small victories, and believed there was still a long road ahead before Hong Kong legalised same-sex marriage.
“For us to get the same rights for same-sex marriage, we have to do so by filing court cases one by one. I do not want this, but this is the reality,” he said.
Public support for same-sex marriage has risen, according to a study published this year by Chinese University. It found 44 per cent of people polled supported same-sex marriage, up from 27 per cent in 2016. It also found that only 12 per cent of respondents disapproved of providing legal protection for the LGBT community, down from 35 per cent.
Hong Kong Marriage Equality, a non-profit organisation launched last year, is the city’s first pressure group dedicated to putting same-sex unions on the statute books.
Jerome Yau, the group’s co-founder, said community engagement was key for talking to those in the public who might have concerns, but the survey was an encouraging sign that society was ready for a change in legislation.
“I’ve noticed over the years lots of younger same-sex couples have more confidence to show their affection in public, such as holding hands. People do not take much notice of those couples. I take that as a very good sign that society is ready to move forward.”
More from South China Morning Post:
- Bittersweet day for Hong Kong LGBT community as court rules in favour of inheritance rights between gay couple, but rejects foreign same-sex marriage bid
- Lawyers for Hong Kong rights activist Jimmy Sham urge court to recognise his same-sex marriage