LETTER OF THE LAW

Has the time come for Hong Kong to legalise same-sex marriage?

Dr Karen Lee, assistant professor with Education University of Hong Kong’s Department of Social Sciences, traces the history of same-sex marriage legislation here and abroad

PUBLISHED : Monday, 28 November, 2016, 1:13pm
UPDATED : Monday, 28 November, 2016, 7:15pm

Three controversial bills which would allow gay citizens to marry and adopt are going through Taiwan’s legislative process will, if passed, make it the first Asian – and Chinese – society to legalise same-sex marriage.

Has the time come for Hong Kong to face this issue?

First recognised in the Netherlands in 2001 and now legal in more than 20 countries, same-sex marriage attracted local attention in 2012 after the coming-out of a newly elected legislator and two pop singers who went on to form an organisation that promotes LGBT rights. That coincided with the Equal Opportunities Commission’s call in November for a public consultation on enacting a sexual orientation anti-discrimination law. The move prompted some faith-based groups to voice their concerns, which culminated in a 50,000-strong rally outside government headquarters in January 2013.

Watch: Thousands march for equality in Hong Kong pride parade

Hong Kong petition for same-sex spousal visas finds few signatories among banks

In the 2013 case of W v Registrar of Marriages, the Court of Final Appeal allowed a post-operative transsexual woman to marry in her newly acquired sex. Despite the narrowly worded judgment, the fact that it unlinked marriage from procreation and allowed a “biological” male to marry another male raised concerns over its implications for the institution of marriage. In June 2014, the British Consulate asked the government to allow it to solemnise same-sex marriages – legal in the UK – for British nationals in Hong Kong, a service that it already provided in a number of countries including China, Russia, and Azerbaijan, but to no avail.

In March this year, a British lesbian lost her initial legal battle against the Immigration Department’s refusal to recognise her overseas same-sex marriage and grant her a spousal dependent visa. In rejecting her judicial review application, the High Court ruled that the definition of marriage under Hong Kong’s law does not allow for the inclusion of foreign recognised same-sex marriages. This followed another application filed in December by a civil servant against the government’s refusal to recognise his overseas same-sex marriage for the purposes of taxation and enjoyment of spousal benefits, on the grounds of discrimination under the Basic Law and the Bill of Rights.

Hong Kong lawmaker fights for same-sex partners to get right to claim ashes of loved ones

According to overseas experience, legalisation of same-sex marriage often follows an incremental trajectory, which progresses from decriminalisation of homosexuality, to harmonisation of the age of consent for heterosexual and homosexual acts, enactment of anti-discrimination law, legalisation of civil union or partnership, and finally, full marriage status. The Law Reform Commission has recently recommended standardising the age of consent. But a long-discussed sexual orientation anti-discrimination law remains in limbo.

What does the public think? In a 2013 survey conducted by the Public Opinion Poll Programme at the University of Hong Kong, respectively 33 per cent of the respondents supported the legalisation of same-sex marriage or registered partnership and 43 per cent and opposed it, while 66 per cent said the government should enact a sexual orientation anti-discrimination law, with 18 per cent showing disapproval.

If social consensus is needed for the law to move forward, as a trial judge in the W case opined, does it mean it is time Hong Kong progressed to the next stage of the incremental process?

Dr Karen Lee is an assistant professor with Education University of Hong Kong’s Department of Social Sciences