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Fiona Chow

Connor Mycroft

Hong Kong’s top court earlier this week called on the government to devise a framework for recognising same-sex partnerships in two years’ time as it ruled in favour of an appeal filed by gay activist Jimmy Sham Tsz-kit.
The Court of Final Appeal ruled against recognising same-sex marriage but said authorities had violated the Hong Kong Bill of Rights.
Three of the five judges said the government had failed to establish an alternative regime to give legal standing to same-sex relationships, such as registered civil partnerships or unions.
The landmark ruling is one of several handed down by Hong Kong courts after years of legal challenges by LGBTQ campaigners. The Post looks back on the cases and explains their significance.
Hong Kong must create legal framework for same-sex partnerships: top court
1991
Decriminalisation of same-sex acts
The Legislative Council passed a law that decriminalised sexual acts between consenting gay men in 1991. The decision was sparked by comments in 1980 from then governor Murray MacLehose, who favoured decriminalisation.
Sexual acts between women were never explicitly outlawed under the old legislation, but lesbian relationships generally faced public stigma.
The new law set the age of consent at 21 for gay men, higher than the 16 years required for heterosexual couples, a decision that would spark several judicial challenges over the years.
The criminalisation of homosexual acts was common in many British colonies and territories, with such laws still in place in some locations.


2005-14
Age of consent laws amended
The High Court in 2005 ruled that laws banning men aged under 21 from having sex with each other were unconstitutional and undermined human rights.
The decision was in response to William Roy Leung’s filing of a judicial review challenging the Criminal Ordinance, which had prohibited sex between men if one or both were aged under 21, but allowed heterosexual and lesbian couples to have sex at the age of 16 and above.
The government at first challenged the ruling, but the decision was later upheld unanimously by the Court of Appeal in 2006. The move effectively equalised age of consent laws in the city, but the ordinance was only formally amended in 2014.
More LGBTQ rights could help Asia financial hubs draw global talent
2013
Transgender people win right to marry
The Court of Final Appeal in 2013 ruled in favour of a transgender woman, identified as W, who filed a legal challenge against the Registrar of Marriages for only recognising her sex listed when she was born, which barred her from legal marriage.
The decision forced Hong Kong to rewrite its definition of “sex” and saw the government establish an Interdepartmental Working Group on Gender Recognition to oversee legal and administrative changes.
The case also became a legal reference for later judicial reviews that have challenged the institution of marriage.


2018
Same-sex couples win right to spousal visas
The top court ruled in favour of a lesbian woman, identified as QT, in 2018 following a judicial review against the Immigration Department’s decision to deny her a dependant visa.
QT and her spouse, known in court as SS, entered into a civil partnership in Britain, months before the latter secured a job in Hong Kong and they decided to move to the city in 2011.
The ruling established that marriage status and civil union partnerships for same-sex couples would be recognised in Hong Kong for the specific purpose of a dependant visa.
But the decision did not affect the city’s definition of marriage as between a man and a woman.
The cases also established that any unequal treatment favouring heterosexual couples over same-sex ones by the government without legitimate reasons constituted unlawful discrimination, which set a precedent for future legal battles.
‘I tried my very best’: host of Hong Kong’s axed LGBTQ radio show reflects
2019
Gay civil servant wins spousal benefits
The Court of Final Appeal ruled that the husband of Angus Leung Chun-kwong, a senior immigration officer, was entitled to enjoy spousal benefits, including dental and medical ones, as well as a joint tax assessment option.
The decision required the government to change its policies for all civil servants who had entered into a same-sex marriage outside Hong Kong.
Officials also amended the Inland Revenue Ordinance and ditched the phrase “husband and wife” for “spouse”.
The ruling also enshrined the position that the absence of a prevailing view on same-sex marriage in Hong Kong did not justify denial of the fundamental rights of a minority group.
RTHK cancels Hong Kong’s only LGBTQ radio show, ‘a step backward for community’
Court abolishes four offences criminalising sex between men
The High Court found that four criminal offences targeting gay men were unconstitutional and repealed them.
The abolished crimes included “procuring others to commit homosexual buggery”, “gross indecency with or by a man under 16”, “gross indecency by a man with a man otherwise than in private”, and “procuring gross indecency by a man with a man”.
The court also changed the interpretation of three other crimes to ensure they aligned with the Basic Law, the city’s mini-constitution, and ruled the offences must be applicable to both women as well as men.
Scrapping the four offences was considered significant since they had only applied to gay or bisexual men, but not to heterosexual or lesbian couples.
The decision also ensured that offences, such as engaging in sexual acts with a non-consenting mentally incapacitated person, could equally apply to women.


Court rules against judicial challenge seeking marriage equality
The courts ruled against a lesbian woman, only known as MK, who argued that the city’s ban preventing her from marrying her girlfriend had violated rights guaranteed under the Bill of Rights and the Basic Law.
The Court of First Instance sided with the government and reiterated that marriage under the mini-constitution only referred to those between men and women.
MK’s judicial review was the first to take a look at same-sex marriage and was a direct challenge to how the concept was defined in the Marriage Ordinance.
‘A special perspective’: Hong Kong LGBTQ life coaches on their own journey
2020
Court quashes public housing ban for LGBTQ couples
The Court of Instance ruled that a government policy of denying legally married same-sex couples the right to apply for public housing was unconstitutional in March of that year.
The decision came after Nick Infinger sued the Housing Authority over its decision to bar him and his husband from renting a public housing flat.
The court found the public housing provider had failed to justify its treatment of same-sex couples, which resulted in “an unacceptably harsh burden”.
The case has proved significant for same-sex couples applying for government welfare services and later inspired a judicial review of whether such couples in public housing flats had cohabitation rights.
The ruling has been appealed by the authority and is awaiting a verdict.
Hong Kong’s LGBT community struggles for acceptance in sports, CUHK survey shows
2021
Cohabitation Rights for LGBTQ couples
The High Court ruled that a government policy barring same-sex couples from living together in subsidised housing constituted unlawful discrimination on the basis of sexual orientation.
Gay widower Henry Li Yik-ho and his late husband, Edgar Ng Hon-lam, challenged the Housing Authority for only recognising heterosexual families as cohabitants, excluding spouses in foreign same-sex marriages.
Ng was the owner of a government-subsidised flat under the Home Ownership Scheme, but Li could not move in as a co-owner as Ng’s spouse unless he paid a premium – a policy unheard of for heterosexual couples.
The ruling was the second involving Li and Ng and the High Court said that measures involving legal entitlements and benefits relating to inheritance also constituted unlawful discrimination against same-sex couples.
Ng was alive when the legal challenges were filed, but died in December 2020.
The decision concerning public housing has been appealed by the government and is awaiting a verdict.

LGBTQ couples granted joint-parental rights
LGBTQ couples became eligible for joint-parental rights in May of 2021 after the Court of First Instance ruled in favour of a separated lesbian couple who wanted to maintain joint legal custody of their child.
The judge determined it was in the best interests of the child that the non-biological mother be granted parental rights equal to the biological mother.
The precedent set by the decision also helped remove uncertainty over whether non-biological parents could sign off on matters such as hospital visits and school trips.
Protecting LGBTQ rights can be ‘selling point’ for Hong Kong: UK envoy
Government affirms same-sex couples’ after-death rights
Widower Henry Li sued the government after being denied the right to independently make funeral arrangements for Edgar Ng, the third case to involve the couple.
Li made the decision after a public mortuary refused to accept him as Ng’s official identifier because their marriage was not recognised in Hong Kong.
Authorities opted to settle the lawsuit by issuing a clarification in July 2021 that “there is no policy for distinction between opposite-sex couples and same-sex couples” when handling matters related to deceased spouses.
The move affirmed that same-sex couples had the right to various after-death arrangements, including body identification and applying for a death certificate.
Same-sex couples stress inclusivity at Hong Kong’s Pink Dot festival
2023
Review on changing sex listed on identity cards
The Court of Final Appeal in February this year ruled that sexual reassignment surgery was not a precondition for changing the sex listed on a person’s identification card and that the Immigration Department’s past policy had “violated people’s constitutional rights”.
The decision also called for a review and amendment of current policies.
Henry Tse Ho-lam, alongside two other transgender men identified only as Q and R, first brought a lawsuit in 2018 against the government policy requiring the appellants to undergo medical procedures modifying their sexual organs to qualify for a change to the sex listed on their identity cards.
The ruling was monumental for the transgender community and stopped the government from listing the surgical procedures as a precondition for recognition of a different sex than the original one given.
The government in August said it was still reviewing the policy in compliance with the ruling.

Court rules on recognition of same-sex couples
The government was told on September 5 to set up a legal framework for recognising same-sex partnerships after the Court of Final Appeal found authorities had failed to protect the privacy of homosexual couples.
The lack of a legal framework was considered a violation of the city’s Bill of Rights, the court said.
The court was responding to a judicial review launched by detained activist Jimmy Sham in 2018. He hoped judges would declare Hong Kong laws unconstitutional since they recognised foreign heterosexual marriages but not same-sex ones, such as his own, registered in New York in 2013.
The ruling could lead to authorities granting same-sex couples the same marital entitlements as their heterosexual counterparts.
But the court also ruled against recognising same-sex marriage, after finding the Basic Law specifically favoured opposite-sex unions.


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The role of jurors in the legal system should be strengthened, not restricted

Hong Kong courts

LGBTQ rights in Hong Kong: legal milestones in the long battle for equality

Members of Hong Kong’s LGBTQ community have taken on the government in various legal battles for recognition. Photo: Felix Wong

Edgar Ng (left) and his husband Henry Li challenged the Housing Authority over its strict policy on cohabitation. Photo: Handout

Activist Jimmy Sham filed a judicial review in 2018 in the hopes that the courts would recognise same-sex marriages. Photo: Felix Wong

Hong Kong must create legal framework for same-sex partnerships, top court rules, possibly paving way for couples to be eligible for marital entitlements

The judicial challenge was lodged by detained activist Jimmy Sham Tsz-kit. Photo: Felix Wong

The judicial challenge by detained activist Jimmy Sham Tsz-kit is the first case to ask the highest arbiters the question of whether same-sex couples had a right to marry under the statute of the city. Photo: Yik Yeung-man

Stronger LGBTQ rights in Asia will send ‘clear message’ in fight for global talent

Rainbow flag at the 2019 Pride Parade assembly in Hong Kong. Its top court will decide later this year if Hong Kong will recognise same-sex marriages conducted overseas. Photo: Felix Wong

Jimmy Sham poses with the rainbow flag at the High Court in Hong Kong. His five-year legal battle for his New York marriage to be recognised at home has helped raise awareness, with a poll this year showing over 60 per cent of respondents supported same-sex marriage, almost double the number in 2013. Photo: Felix Wong

Japanese people including plaintiffs’ lawyers hold banners and flags, after the lower court ruled that not allowing same-sex marriage was unconstitutional, outside Nagoya district court. Photo: Kyodo/Reuters

Pink Dot 2023 in Singapore. Under rules by the government, foreigners cannot attend the event and foreign companies cannot sponsor the rally. Photo: SCMP

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Hong Kong

Law and Crime

Court of Final Appeal has this week ruled government must formulate framework for recognising same-sex partnerships in two years’ time
For decades, members of LGBTQ community have fought policies restricting sex, marriage and after-death arrangements


For decades, members of LGBTQ community have fought policies restricting sex, marriage and after-death arrangements.
