Court rejects legal fight over same-sex marriage

Friday, October 18, 2019

In what could be regarded as a setback for the LGBT movement in the city, the High Court today ruled against same-sex marriage and civil unions, saying under the Basic Law in its current form, marriage can only be between a man and a woman, RTHK reports.

Justice Anderson Chow Ka-ming also said the government has no legal obligation to allow same-sex couples to enter into civil unions.

But Chow pointed out that there's no ban against gay marriage or civil unions as such. It's for the legislature, and not the courts, to open the door to such partnerships, he ruled.

The legal action, brought by a woman known as MK, was the first direct challenge to the lack of any options in Hong Kong for same-sex couples to get married or enter into civil partnerships.

MK, who wanted to marry her girlfriend, had asserted that she's been stripped of her constitutional right to marry. Her lawyer had argued that MK should at least be allowed to enter into a civil union, so she wouldn't be subject to unlawful discrimination.

But Chow said while people's right to marry is guaranteed, it's clear that at the time of the promulgation of the Basic Law, marriage was understood as a union between a man and a woman.

He said it's beyond the court to give an updated interpretation this definition of marriage, and that would effectively be introducing a new social policy with far-reaching consequences.

The judge also disagreed with the applicant's argument that civil unions must be made an option for same-sex couples.

Chow said the lack of such options is not a violation of MK's constitutional rights, as there's no actual ban against gay marriage or civil unions in the Basic Law.

He noted that the Legislative Council is free to enact new legislation to legalize gay marriage, or provide an alternative such as civil unions, to give same-sex couples the same rights and benefits as opposite sex couples.

The judge also said while the court doesn't take any stance on this controversial issue, it believes "there is much to be said for the Government to undertake a comprehensive review on this matter".

He warned that failing to do so will inevitably lead to more legal challenges against specific laws, or government policies and decisions on the grounds of discrimination.

This, he said would mean the law would be incoherent, and much time and money would be wasted in the process.

The court also ordered MK to pay the legal costs of the government in this case.