Hong Kong's top court urges alternative legal framework for same-sex couples

Hong Kong's top court partially approved on Tuesday a landmark appeal by an LGBTQ activist for recognition of overseas same-sex marriages, and called for an alternative legal framework for such couples to legitimise their basic social needs.

However, the court stopped short of granting full marriage rights to the city's LGBTQ community.

Over the past decade, LGBTQ activists in the former British colony have won piecemeal victories in court, striking down discriminatory government policies on visas, taxes and housing benefits. 

The Court of Final Appeal ruling followed a five-year legal battle fought by jailed democracy and LGBTQ rights activist Jimmy Sham. It was the first time that the court directly addressed the issue of same-sex marriage in the Asian financial hub.

In its ruling, the court declared that the Hong Kong government "is in violation of its positive obligation... to establish an alternative framework for legal recognition of same-sex partnerships", such as civil unions.

The judges - including Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane - unanimously dismissed the appeal in relation to same-sex marriage and recognition of foreign same-sex marriage, but acknowledged same sex couples' need "for access to an alternative legal framework in order to meet basic social requirements."

The court effectively gave the government two years to ensure rights, such as access to hospitals and inheritance, could be protected for same sex couples.

Same sex couples needed to "have a sense of legitimacy which dispels any sense of them belonging to an inferior class of person whose committed and stable relationships are undeserving of recognition," the judges wrote.

While LGBTQ activism faces political challenges in mainland China, semi-autonomous Hong Kong has seen increasing support among its population for same-sex marriage. 

A poll this year found that 60 percent of Hong Kongers supported same-sex marriage, compared to just 38 percent a decade ago. 

The challenge launched by Sham, 36, had twice failed to convince the courts that Hong Kong should legally recognise his marriage to a same-sex partner, which was registered in New York nearly a decade ago. 

In August 2022, appeal judges wrote that Hong Kong's constitutional text "only provides access to the institution of marriage to heterosexual couples". 

Sham had argued the city's ban on same-sex marriage violated his right to equality, while the lack of a policy alternative -- such as civil unions -- does the same, in addition to breaching his right to privacy. 

British rights lawyer Karon Monaghan, representing Sham, told the court in June the ban disadvantages same-sex couples in areas such as inheritance and housing rentals. 

Sham, a prominent democracy campaigner, is one of dozens of activists behind bars awaiting prosecution under the security law on charges unrelated to LGBTQ rights. 

Gender studies scholar Suen Yiu-tung said Hong Kong decriminalised sexual acts between adult men in 1991, but still had "no protection against discrimination on the grounds of sexual orientation and gender identity". 

Local courts have struck down discriminatory policies "domain-by-domain", but that approach resulted in a "really, really long journey", Suen told AFP. 

Tuesday's case was different because it asked for a more "wholesale" recognition of same-sex marriage, but that also meant success "might be more difficult", he added. 

Esther Leung, campaign manager of the Hong Kong Marriage Equality group, said after the ruling that while the decision was a "major step forward, it falls short of what is really at stake in this case: full inclusion in marriage".

"It is a significant victory which makes clear that Hong Kong law must afford due respect and protections to same-sex couples. This will help families while hurting no one," Leung said.

In Asia only Nepal and Taiwan recognize same-sex marriage while in South Korea lawmakers have recently introduced legislation that would recognize same-sex partnerships. 

Some international businesses in Hong Kong have also backed marriage equality campaigns, crediting it as a way to attract talent. 

But the city's Beijing-approved leadership has shown little appetite for passing laws that advance LGBTQ equality. 

Rights advocacy has partly gone underground after Beijing imposed a national security law on Hong Kong in 2020, following huge and sometimes violent pro-democracy protests in the finance hub. 

In July, a radio show promoting gay rights aired by Hong Kong's public broadcaster was cancelled after a 17-year run. 

(Staff reporter, AFP and Reuters)