The majority verdict decided by five judges on the Court of Final Appeal gave Hong Kong two years to create a new framework that would confer “legal recognition” on same-sex relationships “in order 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.”
“This can be seen as progress, as success in stages,” said Kenneth Cheung, founder of Rainbow of Hong Kong. “This doesn’t mean that we stop fighting for the equal rights we should have, but I believe after the laws are revised the public will see that gay couples just want to start a family and work and live in peace and happiness.”
The ruling is in response to a years-long case brought by jailed democracy activist Jimmy Sham who argued the court should declare the government’s longtime denial of same-sex marriage as a violation of Hong Kong’s Basic Law, its mini constitution.
Yet the judges concluded that the right to freedom of marriage under Hong Kong law refers only to heterosexual marriage. The court dismissed an appeal by Sham that all same sex marriages registered overseas be recognized in Hong Kong.
“We are not addressing the question of whether in terms of social policy for Hong Kong same sex unions should be recognized with rights and obligations similar to those presently enjoyed by heterosexual couples. That is a question for the government and the legislature; and social policy is not a question for the court to decide,” wrote Justice Johnson Lam.
Members of Hong Kong’s once active civil society have turned to the court system to push for change after a far-reaching national security law imposed by Beijing decisively shut off other avenues for protest. In recent months, activists have won a few, small judicial victories, including a rejection of a government request to ban online the popular pro-democracy anthem “Glory to Hong Kong.”
Homosexuality was decriminalized in Hong Kong in 1991. While same-sex marriage continues to be banned, judges have ruled in favor of same sex couples married overseas when it comes to issues like applications for visas and tax issues. In February the top court ruled that surgery was not necessary for transgender people to change their gender on their ID cards.
Yet at the same time, as Hong Kong comes ever more under the control of Beijing — which has in recent years cracked down on LGBTQ activism — the space for advocacy has shrunk. The city’s annual gay pride parade has been canceled since 2020. In August, Hong Kong’s first queer radio show was canceled after 17 years.
Hong Kong Marriage Equality, an nongovernmental organization, applauded Tuesday’s ruling, calling it an “important victory for Hong Kong society” despite significant shortcomings.
“The judgment clearly states that Hong Kong law must respect and protect same-sex couples. It marks a big step forward for Hong Kong society toward equal love and a more harmonious society.”
The group said that without giving same-sex couples the right to marry, however, they would continue to be subjected to unequal treatment.
“Marriage gives families a unique legal status and protects partners and families that no other institution can match. The continued exclusion of same-sex couples from the current marriage system not only violates equality, but also harms social harmony,” it said.