In what has been called a ‘moment of hope’ for LGBTQ+ rights in the city, detained Hong Kong civil rights activist Jimmy Sham has partially won his bid for equal recognition of same-sex marriage in a judicial review case he took all the way to the city’s Court of Final Appeal.
The final appeals court ruled on Tuesday that the government has a constitutional duty to provide a legal framework for same-sex relationships to be recognized, setting a two-year timeline for officials to deliver.
But it ruled against Sham’s argument that the exclusion of same-sex couples from the institution of marriage was a violation of the right to equality under the Hong Kong Bill of Rights and Basic Law; and that lack of recognition of foreign same-sex marriage violated the right to equality.
Sham, who is among 47 opposition activists and former lawmakers currently on trial for “subversion” under a national security law for taking part in a democratic primary, filed his judicial review back in 2018, but lost the case both in the Court of First Instance and the Court of Appeal at the High Court.
His lawyer, Karon Monaghan KC, had argued at the hearing in June that it is unconstitutional for the Hong Kong government to eliminate the possibility of same-sex marriage, and that it is unconstitutional not to offer an alternative legal union for same-sex couples.
She said such discriminatory treatment would likely also engender discrimination against same-sex couples in other areas, including inheritance rights and access to housing, and sent the wrong message to the public.
Same-sex relationships share all the characteristics of intimacy, love, long-term commitment and mutual support with heterosexual marriages, Monaghan said.
She argued that the government’s rejection of same-sex marriage, and its failure to provide alternatives like civil unions, amounts to discrimination against same-sex couples, sending the “insulting” message that homosexual relationships are inferior to heterosexual ones.
Sham, who married his husband in New York in 2013, but who has been denied permission to marry him in Hong Kong, called on the court to rule that the government’s approach is unconstitutional.
An earlier court ruling in 2020 described his bid for equality of recognition as “too ambitious.”
Hong Kong Marriage Equality welcomed the ruling, saying the verdict was an “important victory” for same-sex couples.
“This verdict won’t cause harm to anyone, and also marks Hong Kong society’s progress towards equality in love, and a more harmonious society,” it said. “This is a big step.”
It called on the government to actively communicate with the lesbian, gay, bisexual, transexual and questioning community in developing the framework.
Amnesty International described Tuesday’s ruling as “a moment of hope” for LGBTQ+ people in Hong Kong.
“Jimmy Sham’s partial victory in court is the reward for his tireless campaigning for equality, and it sends a clear message to the Hong Kong government that its laws on same-sex marriage are in urgent need of reform,” Amnesty International’s Regional Director for East, Southeast Asia and the Pacific, Piya Muqit, said in a statement.
“Today can be the start of a more equal society in Hong Kong, but there is still a long road ahead,” Muqit said. “It is now crucial that the government does not delay in implementing this ruling as a first step towards ensuring full equality for [LGBTQ+] people.”
“Jimmy Sham’s marriage is legitimate and should be recognized as such,” Muqit said, calling for a comprehensive review of all of Hong Kong’s laws, policies and practices that discriminate based on sexual orientation, gender identity and intersex status.
Sham is the former convenor of Civil Human Rights Front, which once organized mass protest marches on the anniversary of Hong Kong’s handover to Chinese rule and on New Year’s Day and which once led a march of 2 million during the 2019 protest movement.
The front was among several prominent civil rights groups to disband following the imposition of the national security law on July 1, 2020.
Translated by Luisetta Mudie. Edited by Malcolm Foster.