Hong Kong’s Top Court Urges Same-Sex Rights Recognition

Hong Kong (CNN) — Hong Kong’s top court has ordered the city’s government to set up a new framework to legally recognize the rights of same-sex couples in a partial victory for LGBTQ activists that stopped short of their demands for full marriage equality.

Five judges from Hong Kong’s Court of Final Appeal handed down their decision on Tuesday, following years of legal battles challenging the government’s refusal to let gay people get married or form a civil union partnership.

Hong Kong does not allow or grant same-sex marriage or unions, even though homosexuality has been decriminalized in the city since 1991.

Activists had been hoping the court would declare that the denial of same-sex marriage breached equal rights protections in the city’s mini-constitution.

Judges ruled the freedom to marry was guaranteed under the mini-constitution but that it only referred “to heterosexual marriage.”

Instead, the judges ruled in a majority verdict that there was a need for “an alternative framework” granting legal recognition to same-sex couples “to provide them with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition.”

The government has two years to comply with the ruling, the court said.

CNN has reached out to the Hong Kong government for comment.

Uphill battle

Activists in Hong Kong have used the courts as their main avenue to drive changes over the past decade, with both the government and legislature being seen as sluggish in catching up with other more liberal jurisdictions.

And Hong Kong’s judges have often sided with them, previously ruling against government lawyers and stating that the city’s mini-constitution affords same-sex couples certain protections and equality that they were being denied.

Several successful court challenges have led to same-sex marriages entered overseas being recognized in a handful of areas, such as tax declarations, applications for spousal visas, and parental rights, though the scope remains limited.

In contrast, the case that resulted in Tuesday’s landmark ruling was much broader with activists asking the city’s top court to rule directly on the issue of same-sex marriage after successive defeats in the lower courts.

The ruling has potentially far-reaching implications for Hong Kong’s gay community – and the many overseas nationals who work and live in the city – but it remains to be seen what steps the local government will now take in creating legislation that conforms to the court’s ruling.

Jerome Yau, co-founder of Hong Kong Marriage Equality, said he is “cautiously optimistic” as he awaits further details to be hammered out.

“It’s a major step forward and landmark decision. I understand it’s not full marriage equality but all things considered, it’s a good decision,” he said.

The battle for greater same-sex equality has faced an uphill struggle in much of Asia, where conservative values still dominate, especially among political elites. At present, only Taiwan and Nepal allow same-sex unions.

India’s Supreme Court is currently debating whether to allow same-sex marriage in the world’s most populous nation.

Polls in Hong Kong have shown growing support for same-sex equality among the public, especially younger people.

But the city’s government has long leaned conservative, mirroring official opposition to same-sex marriage and greater equalities on the Chinese mainland.

Hong Kong bills itself as a global financial hub that aims to attract top talent from around the world and businesses leaders have been among those pushing to allow same-sex unions to make the city a more attractive destination.

Jailed plaintiff

The case that resulted in Tuesday’s final ruling was brought by now detained pro-democracy activist Jimmy Sham Tsz-kit in 2019.

Sham, in his early 30s, organized rallies that drew in hundreds of thousands of people as the convenor of the Civil Human Rights Front during a wave of anti-government protests in 2019.

The group was disbanded in 2021, a year after Beijing imposed a national security law that critics said stifled dissent and shattered the democracy movement. Both Hong Kong and mainland Chinese authorities have maintained the law was necessary to safeguard national security and “restore stability.”

Sham, who has been remanded in custody for more than two years on a charge of subversion, is among dozens of prominent democracy campaigners accused of taking part in an unofficial primary election held by the opposition in 2020. Prosecutors have framed the vote as part of a wider move to overthrow the government at the time.

Before his detention, the activist – like many pro-democracy leaders in Hong Kong – had also campaigned on LGBTQ issues.

Raymond Chan Chi-chuen, the first member of Hong Kong’s Legislative Council to come out as gay, is a co-defendant in Sham’s case.

The city’s parliament no longer has any opposition lawmakers since Beijing redrew its electoral system in 2021 to ensure only patriots rule.

Court papers said Sham began a stable relationship with his partner in 2011 and two years later, got married in New York.

Sham argued that the Hong Kong government’s failure to let him and other gay and lesbian couples get married, or enter some forms of civil union partnership, had infringed upon their rights to equality and privacy.

In mainland China, Beijing has widened crackdowns on LGBTQ activists and groups in recent years, with Chinese leader Xi Jinping increasingly stressing the ruling Communist Party’s absolute control over every aspect of society.

China’s biggest and longest-running LGBTQ festival, Shanghai Pride, was canceled in 2020, with dozens of accounts related to sexual minorities censored on Chinese social media.

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