It is time for same-sex marriages to be recognised in Hong Kong
- A court ruling confirming marriage to be the exclusive preserve of heterosexuals raises questions about how the city will ever be able to be more inclusive
The right to marry is an important freedom protected by Hong Kong law. But it does not extend to every couple. Same-sex partners are excluded. It is time for this to change.
But a ruling by the Court of Appeal last month emphatically confirmed the position that marriage is the exclusive preserve of heterosexual couples. It raises questions about how Hong Kong will ever be able to progress and to become more inclusive.
The legal challenge was brought by Jimmy Sham Tsz-kit, a human-rights activist. Sham and his male partner were married in New York in 2013.
His lawyers argued that the bar on marriage in Hong Kong between same-sex couples breaches the constitutional protection given to equality and privacy. The city should, at least, recognise same-sex marriages from overseas.
The Court of Appeal rejected these arguments.
At the heart of the case is Article 37 of the Basic Law, protecting the freedom to marry and raise a family. The wording does not expressly exclude same-sex couples. It simply refers to the freedom of Hong Kong residents to marry.
But the judges said the article had to be interpreted in the light of its history and context. They referred to a similar provision in the Bill of Rights which protects the freedom of “men and women” to marry. The court said this “strongly suggests” the right to marry applies only to heterosexual couples.
The court placed much importance on the fact that when the Basic Law was enacted, in 1990, marriage was generally understood to exist only between a man and a woman. Same-sex marriages did not emerge until 11 years later, when provided for by the Netherlands.
The drafters of the Basic Law would have intended marriage to be only for heterosexual relationships, the judges added.
They went on to find that this restriction on the right to marry has priority over other more general rights protected by the Basic Law, including equality and privacy.
The court used international human rights jurisprudence to back up their decision. But provisions elsewhere in the world have not prevented many places from recognising same-sex unions.
What happened to the idea that the Basic Law is a “living instrument” able to adapt to societal changes?
If this decision stands, it will set the restriction in stone. It could mean we have to wait until 2047, when constitutional guarantees expire, before same-sex couples can marry in Hong Kong.
Attitudes have been changing in the city. Polls have shown growing support in the community for protection of the rights of sexual minorities and same-sex marriage. The law must move with the times.
Taiwan legalised same-sex marriage in 2019. Thailand is moving in that direction. Hong Kong should be at the forefront of these progressive changes, not lagging behind.
Sham’s case may yet be heard by the Court of Final Appeal. But if the decision stays it is not easy to see how the legal position will change. The mainland does not permit same-sex marriage either. It is difficult to imagine China’s top legislature making its first amendment of the Basic Law to provide for such equal treatment.
Members of the LGBTQ community can continue to challenge discriminatory treatment in specific areas. The city’s courts, in recent years, have made several landmark decisions preventing discrimination by the government on access to visas, benefits and tax.
This is likely to prove more productive. But the piecemeal attrition of discriminatory practices through court actions is time-consuming, stressful, expensive and uncertain.
The government should take responsibility. The restriction on the right to marry may be here to stay. But more can be done to stop discrimination.
Rather than fighting to uphold discriminatory policies, the government should amend laws to eradicate them. Legislation protecting sexual minorities from discrimination is long overdue.
Chief Executive John Lee Ka-chiu has pledged to make Hong Kong a more inclusive and diverse society. A change of direction is needed if this objective is achieved.