The highest court of Hong Kong partly allowed a groundbreaking challenge by an LGBTQ activist for recognition of same-sex unions on Tuesday, September 5, asking for new legislation for homosexual couples to protect their fundamental social requirements.
Five years of legal fight by imprisoned democracy and LGBTQ rights campaigner Jimmy Sham ended in the verdict by Hong Kong's Court of Final Appeal. When the court finally ruled on the legality of same-sex marriage in the Asian financial capital, it was a historic moment.
Sham, now 36 years old, got married to his partner in New York in 2013 and has twice been unsuccessful in lower courts in his efforts to have Hong Kong recognize overseas same-sex weddings.
Sham is one of the democratic activists jailed since March 2021 for their involvement in an irregular primary election staged in 2020, which is said to have violated Beijing's national security legislation, as reported by BBC.
Fight for Fundamental Rights
In a report by Reuters about the rulings, the justices in Hong Kong's high court rejected Sham's claim that he was guaranteed the right to marry someone of the same gender under the city's constitution. Still, they did give the government two years to pass legislation guaranteeing same-sex partners basic protections like access to hospitals and inheritance.
The Hong Kong court (Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane) decided that the freedom of marriage guaranteed by Hong Kong's mini-constitution, the Basic Law, applied only to marriages between people of different sexes.
The court system, nonetheless, recognized that same-sex couples need a separate legal system in order to fulfill fundamental societal needs. The justices said that same-sex couples should not be stigmatized and should have the confidence that their relationships are just as valid as those of heterosexual couples.
The verdict may prompt the city's administration and institutions to make reforms, according to lawyers and campaigners. This may result in the establishment of a new legal framework that makes it easier to inherit property, get insurance, and pay taxes, among other privileges.
Viewpoint on Homosexuality
Reuters said homosexuality was removed from mainland China's list of mental diseases in 2001, and the country officially decriminalized homosexuality in 1997. Yet, same-sex marriage is illegal, and LGBT people have little legal rights.
The courts put off declaring that Hong Kong was in violation of the law since there was no alternative legal framework to protect Sham's interests, allowing the government two years to implement reforms.
Judges Fok and Ribeiro said in their judgment that same-sex couples face real problems in many situations and still must have full input into medical and hospitalization choices. They added, "Problems like these have unsatisfactorily led to recurrent approaches to the courts asking them to deal with each controversy on a case-by-case basis."
They said the lack of legal protection for same-sex couples has been seen as discriminatory and demeaning.
