Hong Kong’s highest court hears same-sex marriage appeal

The issue of LGBTQ+ rights has been growing in Asia, and in Hong Kong specifically, in recent years.

Hong Kong’s highest court hears same-sex marriage appeal
People with gay pride flags take part in a gay pride parade in Hong Kong November 10, 2012. The parade called to end work-place discrimination and for the legalisation of gay marriage. REUTERS/Bobby Yip

The backstory: The issue of LGBTQ+ rights has been growing in Asia, and in Hong Kong specifically, in recent years. The city has also been building up its reputation as an international hub for tourism and business, so some see this push for more inclusivity as part of that. Five years ago, Jimmy Sham, an activist in Hong Kong, began fighting for the same-sex marriage he got in New York to be recognized legally in Hong Kong. He’s been looking for a change to the city’s laws, which don’t recognize foreign same-sex marriages. Sham’s argument is that, by not recognizing his marriage, Hong Kong’s government is violating his constitutional right to equality. Since he took up this judicial review in 2018, lower courts have dismissed his legal challenge and his following appeal.

More recently: Last month, a new report was released showing that ​​Hong Kong's public opinion on same-sex couples’ rights has noticeably shifted over the past decade. In a survey taken earlier this year, researchers saw that 60% of Hong Kong residents said they supported same-sex marriage, with only 17% not being supportive and 23% being neutral on the issue. Back in 2017, only 50.4% supported same-sex marriage, and 38% supported it in 2013. In February, The Court of Final Appeals (CFA) struck down a rule requiring transgender people to have sexual reassignment surgery before changing the designated gender on their government IDs. Through legal challenges over the last few years, the city has started recognizing same-sex marriage for specific purposes like taxation, civil service benefits and dependent visas.

The development: On Wednesday, Sham – who’s been detained since 2019 for subversion over an unofficial primary election – began his final appeal in the CFA in his fight to get recognition for his same-sex marriage from overseas. With this appeal, the CFA will consider if excluding same-sex couples from marriage in general and not providing some kind of legal recognition for these partnerships actually violates the right to equality. The judges will also be looking to see if the city’s current laws violate that right as it’s laid out in Hong Kong’s constitution.

Sham’s lawyer is arguing that the absence of same-sex marriages in Hong Kong suggests that same-sex marriages aren’t as worthy of recognition as heterosexual marriages. But the lawyer repping the government says that there’s another law under the constitution only giving access to marriage for heterosexual couples. The hearing will continue on Thursday.

Key comments:

“It’s good that we have an impartial and independent judicial system, where the court is more open to consider equality claims,” said Henry Li, one of the challengers whose late husband, Edgar Ng, initiated the lawsuits.

“Progress is happening, piece by piece,” said Azan Marwah, a lawyer who’s successfully argued for LGBTQ challengers in Hong Kong’s lower-court. Court victories are weakening the marriage equality ban, he added. “When we get those other key rights, it will be a lot harder for the government to say there shouldn’t be equal status.”

“Our study shows that support for the rights of same-sex couples has grown quite considerably in the last decade,” said Professor Yiu Tung Suen from the Chinese University of Hong Kong about the public opinion report. “The increase in support for same-sex marriage and the decrease in opposition to sexual orientation discrimination legislation are particularly striking.”