Hong Kong: Same-sex marriage ruling a moment of hope for LGBTI rights

In response to today’s Hong Kong Court of Final Appeal verdict that granted a partial victory to LGBTI activist Jimmy Sham, who has been bidding to have his overseas same-sex marriage recognized since 2018, Amnesty International’s Regional Director for East, Southeast Asia and the Pacific, Piya Muqit, said:

“This ruling is an important step forward and a moment of hope for Hong Kong’s LGBTI people, who have long been denied equal rights due to the city’s outdated and discriminatory laws.

“Jimmy Sham’s partial victory in court is the reward for his tireless campaigning for equality, and it sends a clear message to the Hong Kong government that its laws on same-sex marriage are in urgent need of reform.

“It is regrettable that the Court saw the constitutional right to marry as being exclusively confined to opposite-sex couples. But it cannot be ignored that the Court still demands that the government provides same-sex couples with formal and general legal recognition to protect their rights, enable them to participate with certainty in social life and recognize their legitimacy.

“Today can be the start of a more equal society in Hong Kong, but there is still a long road ahead. It is now crucial that the government does not delay in implementing this ruling as a first step towards ensuring full equality for LGBTI people.

“This order to adopt a framework for recognition is now added to the Hong Kong government’s to-do list of legislating laws on gender recognition and against discrimination based on the grounds of sexual orientation, gender identity or intersex status, both of which have yielded minimal progress after public consultations in the past decade.

“Jimmy Sham’s marriage is legitimate and should be recognized as such. Today’s verdict must be the springboard for the Hong Kong authorities to stop discriminating against people based on who they are and who they love.

“All laws, policies and practices that discriminate based on sexual orientation, gender identity and intersex status must be reviewed and overhauled. All marriages should be treated equally.”

Background

Hong Kong’s Court of Final Appeal’s today handed a partial victory to Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) activist Jimmy Sham, ruling that the government has a constitutional duty to provide a legal framework for same-sex relationships to be recognized.

The Court set a two-year timeline for the government to provide the alternative framework, following further legal submissions.

However, the Court ruled against Sham on two other questions put to it: whether the exclusion of same-sex couples from the institution of marriage was a violation of the right to equality under the Hong Kong Bill of Rights and Basic Law; and whether the lack of recognition of foreign same-sex marriage violated the right to equality.

While the decision confirmed an August 2022 ruling by Hong Kong’s Court of Appeal, which said that the city’s law only acknowledged marriages between a man and a woman, it overturned that ruling in that the government now has to adopt “an alternative legal framework” of recognition.

Sham, who married his partner in the USA in 2013, began his campaign for Hong Kong to recognize same-sex marriages performed overseas in 2018, arguing that current laws are unconstitutional.

The former leader of disbanded protest group Civil Human Rights Front, Sham has since then been separately targeted by the authorities for his political activism. He has been in custody awaiting trial since March 2020 on a charge of “conspiracy to commit subversion” under Hong Kong’s National Security Law.

Currently, Hong Kong only legally recognizes “marriage” as being between a man and a woman and does not recognize same-sex marriage or civil partnership or any other form of legal union.

Nor have the authorities taken sufficient steps to combat discrimination against LGBTI persons more broadly, despite a clear recommendation arising from the 2022 review of Hong Kong by the UN’s Human Rights Committee, tasked with monitoring the government’s implementation of obligations under the International Covenant on Civil and Political Rights.

However, in recent years, the Court of Final Appeal and lower courts in Hong Kong have held the blanket denial of partnership rights to be discriminatory, such as by accepting the right of same-sex couples to spousal dependent visas, employment benefits, joint tax assessment and public housing.

Amnesty International believes same-sex relationships should be recognized equally and on the same basis and with the same rights as those of opposite-sex couples.