Hong Kong must create legal framework for same-sex partnerships, top court rules, possibly paving way for couples to be eligible for marital entitlements
- Activists praise landmark decision, but one says it is too early to call ruling a victory pending government response in drawing up new framework
- Court rules failure to provide alternative means of acknowledging same-sex partnerships is rights violation, but request for marriage recognition dismissed
Hong Kong’s top court on Tuesday handed a gay activist a major victory by ruling the government must formulate an official framework for recognising same-sex partnerships, which could pave the way for a landmark change making the couples eligible for marital entitlements given to their heterosexual counterparts.
The Court of Final Appeal ruled against recognising same-sex marriage but said the government had violated the Hong Kong Bill of Rights. Three of the five judges noted authorities had failed to establish an alternative regime for legally acknowledging same-sex relationships, such as registered civil partnerships or unions.
The court said its declaration would be suspended for two years to give the government time to come up with an approach.
Lawyers and scholars largely praised the landmark decision, but a gay rights observer said it was too early to conclude the ruling a victory for the LGBTQ community, as he expressed concerns about the government’s pending response.
The ruling has not closed the door on same-sex marriage. But authorities must now create a legal framework that sets out the rights of same-sex couples, leaving room for a more progressive or restrictive approach.
The judicial challenge by detained activist Jimmy Sham Tsz-kit is the first case to ask the highest arbiters the ultimate question of whether same-sex couples had a right to marry under the statute of the city.
Sham, 36, applied for a judicial review in 2018 for a declaration that Hong Kong laws were unconstitutional as they recognised foreign heterosexual marriages but not same-sex ones, such as his, registered in New York in 2013.