In a recent ruling, the Hong Kong Court of Final Appeal announced that the Hong Kong government has a duty to provide an “alternative legal framework for recognition of same-sex relationships”. The Court determined that the government’s long-term failure to deliver on this duty constituted an infringement of the constitutional right to privacy. However, it stopped short of asserting that the right to same-sex marriage is enshrined in the constitution.
The appellant, Jimmy Sham Tsz Kit, who married his husband in New York a decade ago, has been contesting Hong Kong’s refusal to acknowledge same-sex marriage since 2018. The Court, in a 3 to 2 majority, agreed with the need for a legal alternative to accommodate the specific needs of same-sex couples, ensuring not just basic social necessities, but also granting their relationships a degree of legitimacy.
This recognition follows a series of legal contests involving same-sex couples’ rights to secure dependent visas, spousal benefits for civil servants, and access to public housing. The Court opined that both the legal proceedings and the resulting publicity added stress and financial burden to these couples, who still face challenges arising from the lack of recognition of their relationships.
Yet, a five-judge panel unanimously upheld previous lower court decisions which asserted that the constitutional freedom of marriage – protected under Hong Kong’s Bill of Rights and the Basic Law (the “mini constitution”) – is restricted to opposite-sex marriage. As such, same-sex couples do not possess legal capacity to enter into a recognized marriage in Hong Kong. This also means foreign same-sex marriages fail to receive recognition as per the lex specialis principle.
Earlier, Sham’s initial attempt and his first appeal were rejected as lower courts declined to identify a constitutional right for same-sex couples to marry in Hong Kong. They were also unwilling to acknowledge foreign same-sex marriages under Hong Kong law, asserting that authorities were under no constitutional obligation to formally recognize same-sex partnerships. Past judicial resistance to same-sex marriage was established in 2019 when the Court of First Instance defined marriage to remain confined to the “voluntary union for life of a man with a woman”. This definition has remained largely unchallenged by higher courts.
It is noteworthy to mention that Sham, apart from championing LGBTQ+ rights, is also a pro-democracy activist. Formerly the convenor of Civil Human Rights Front, the organization behind the 2019 Anti-Extradition protests in Hong Kong, Sham was arrested in 2021 for breaching the National Security Law. The law was enacted after the 2019 protests to quell anti-government activism, and Sham has since been held in custody, having pleaded guilty to violating the National Security Law last year.