By Holmes CHAN
Hong Kong, China — Hong Kong’s top court ruled Tuesday in favour of same-sex partnerships including civil unions but stopped short of granting full marriage rights in a partial win for 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.
But the case brought by jailed pro-democracy activist Jimmy Sham is the first time Hong Kong’s Court of Final Appeal has directly addressed the issue of same-sex marriage.
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.
But it stopped short of making a decision of full marriage equality for same-sex couples.
The court “unanimously dismisses the appeal in relation” to same-sex marriage and recognition of foreign same-sex marriage, it said in its judgement.
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.
A ‘long journey’
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.
In Asia only Nepal and Taiwan recognise same-sex marriage while in South Korea lawmakers have recently introduced legislation that would recognise 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.