By Gabriella Chan
Hong Kong, 7 September 2023: The Court of Final Appeal (CFA) has handed a partial – but still significant – victory to Hong Kong’s LGBTQ+ community this week by ruling that the government has not fulfilled its constitutional duty to provide a legal framework for recognising same-sex relationships. The top court has suspended its declaration for two years to give the administration time to come up with such a mechanism.
In its judgment, delivered on Tuesday, the CFA unanimously ruled against recognising same-sex marriage. However, by a three to two majority, it declared the authorities had failed to establish an alternative regime for legally acknowledging same-sex relationships, such as registered civil partnerships or unions.
The case was brought by gay activist Jimmy Sham, who married his partner in the United States in 2013, a union that is not recognised under Hong Kong law. He applied for a judicial review in 2018 for a declaration that local laws were unconstitutional since they recognised foreign heterosexual marriages but not same-sex ones such as his.
Sham – former convenor of the now-disbanded Civil Human Rights Front and currently remanded under the national security law – saw his application dismissed by the Court of First Instance and Court of Appeal but was granted leave to take his case to the CFA.
The top court was asked to rule on three questions framed within the provisions of the Basic Law and Bill of Rights: first, whether there is a constitutional right to same-sex marriage; second, whether the absence of any alternative means of legal recognition of same-sex relationships is a violation of the right to equality; and third, whether the non-recognition of foreign same-sex marriage is a violation of the right to equality.
With regard to questions one and three, the judges were in agreement that the constitutional freedom of marriage guaranteed under the Basic Law and Bill of Rights is confined to opposite-sex unions, thus overriding equality protection in that legislation.
On question two, the court acknowledged by majority the need of same-sex couples for access to an alternative legal framework in order to meet basic social requirements and to have a sense of legitimacy which dispels any sense of them belonging to an inferior class of persons. “[T]he absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples,” the judgement read.
The judges accepted the government would have flexibility in deciding the content of the recognition to be devised, including a “core” of rights necessary for establishing the legal framework.
In the absence of affirmative government policy to protect the rights of Hong Kong’s LGBTQ+ community, campaigners have been achieving piecemeal change through the judicial system. This week’s CFA ruling is a notable landmark. It could, potentially, pave the way for same-sex couples – who currently face various obstacles in their daily lives – to enjoy many of the marital entitlements given to their heterosexual counterparts.
In saying this, however, it should be stressed that we have no idea what sort of “alternative framework” the authorities will propose. There is risk that any attempt to draw narrow parameters will simply invite further litigation. It is expected the authorities may take a long time to establish a comprehensive system to recognise same-sex relationships. Nonetheless, it is pleasing to see our society moving, albeit slowly, towards becoming an all-inclusive one.
For now, at least, the CFA is compelling the government to act. We await developments with interest and anticipation.
Gabriella Chan is a Senior Associate with BC&C. She focuses her practice on Family Law, being proficient in a wide range of matters arising from the matrimonial context, and is also active in the Hong Kong Family Law Association. She can be contacted at Gabriella@boasecohencollins.com.