Gay marriage is an issue that must be faced

PUBLISHED : Monday, 06 October, 2003, 12:00am
UPDATED : Monday, 06 October, 2003, 12:00am

Since gay and lesbian marriages have been recognised in two Canadian provinces - and are soon expected to become legal across the nation - it is a question of when, and not if, someone would use the situation to test marriage laws in other jurisdictions. Some US couples have married in Canada and sought to have their unions legally sanctioned at home. And with the return of Roddy Shaw Kwok-wah and Nelson Ng Chin-pang from their ceremony in Toronto, Hong Kong now has its own test case.

Today's debates about recognising gay and lesbian unions could not have happened if a previous generation of activists and lawmakers had not moved to strike down laws that criminalised homosexual acts and to introduce legal protection against discrimination on the grounds of sexual orientation.

Hong Kong overturned its laws against homosexual behaviour in 1991, but legislation making discrimination against gays and lesbians an offence is still a distant reality. Passage of the latter is something this paper has long advocated. Now that there is some momentum behind the campaign to ban discrimination on the basis of race - and residents are taking part in wide-ranging discussions about what kind of society Hong Kong wants to foster - it would seem an ideal time to engage in a mature debate on the matter.

If anti-discrimination laws are a long-term prospect, gay and lesbian rights activists should be prepared for recognition of their unions to take even more time. Mr Shaw and Mr Ng are hoping that a ruling by Inland Revenue allowing their taxes to be assessed jointly will be the legal opening needed to encourage other couples to marry in places like Canada and seek recognition here.

In deciding whether to follow Canada's lead, Hong Kong will look to other common-law jurisdictions such the UK and Australia with which we have strong links. Both have jurisdictions where gay and lesbian couples can register, while the UK is planning to introduce national legislation granting such couples many of the same rights as married heterosexual couples. Cases such as Mr Shaw's and Mr Ng's have not yet materialised in either place, but Hong Kong will surely be watching closely when they arise.

It is not a given that recognition of gay and lesbian unions means granting them the same rights as traditional marriages - nor even that they will be called marriages. In places where the laws exist - including several states in the US and many northern European countries - rights range from recognition of joint tax status to pension benefits and the right to bring a foreign partner into the country. In some cases, including the UK and Ireland, discussion of revising the relevant laws is also tied to granting similar rights to heterosexual couples who are in long-term relationships but not married. As with anti-discrimination legislation, Hong Kong will have to engage in its own debate about what laws it wants to pass, and when and how.

A good place to begin would be with the Law Reform Commission. As a group appointed to advise the government and consult the public on matters of legal reform, the commission could help focus the debate on expanding the definition of marriage recognised by the government. Such debates are happening elsewhere, and Hong Kong, as a city that is economically and culturally linked to every corner of the globe, will not be able to defer the discussion indefinitely. Reforms should proceed at a pace with which the wider community is comfortable. We are a cosmopolitan city located in a region that can be conservative when it comes to cultural and sexual mores. The only way to know what the people of Hong Kong want is to lay the groundwork for an open and orderly debate.