Sawt Falasteen - Hong Kong's top court rules to recognise same-sex civil unions

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 registered civil partnerships or civil unions)".

The court gave "a period of two years" for authorities to comply with the ruling by creating a framework, leaving specifics to be decided by the government and the opposition-free legislature.

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 judgment.

Since Hong Kong was handed back to China in 1997, it has enjoyed a semi-autonomous status that allows it more freedoms than in the mainland, and its legal system is governed under a common law system.

The city has in recent years seen increasing support among its population for same-sex marriage -- a stark contrast to the mainland where social stigma is widespread and the LGBTQ community have alleged a growing crackdown on their already-limited space.

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, began in 2018. He is currently behind bars awaiting prosecution for national security charges unrelated to LGBTQ rights, and was not brought to court Tuesday.

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.

But he had twice failed to convince Hong Kong's lower courts to legally recognise his marriage to his partner, which was registered in New York nearly a decade ago.

The judges agreed Tuesday with the lower courts that under Hong Kong's Basic Law, "the constitutional freedom of marriage... is confined to opposite-sex marriage and does not extend to same-sex marriage".

But they conceded that Sham had "compellingly advocated" for access to an alternative framework for legal recognition of their relationship.

Citing issues like making medical decisions if their partner is ill or dividing assets at a relationship's end, the judges said "such needs must be addressed in Hong Kong where no means of legal recognition for same-sex relationships presently exists".

- 'Partial but important victory' -

Gender studies scholar Suen Yiu-tung called the ruling "a partial but very important victory" for Hong Kong, which decriminalised sexual acts between adult men in 1991.

"Still, the marriage system is an important institution in society both symbolically as well as granting access to a lot of rights," he said.

Human rights lawyer Wong Hiu-chong said it was "an important move towards the protection of LGBT rights" but said the two-year timeline for the government to create a same-sex partnership framework was "a bit long".

"We hope the administration will adhere to such a generous time frame, and not procrastinate," Wong told AFP.

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.

D.Khalil--SF-PST