Hong Kong court rules in favour of same-sex unions but stops short of granting marriage rights

‘Major step forward’, says city lawyers and rights activists

File: Participants carry a rainbow flag as they rally during the Hong Kong Pride Parade in 2009 (EPA)

Hong Kong's top court has ruled in favour of recognising same-sex civil unions in a landmark verdict for the LGBTQ+ community, but stopped short of granting gay marriage rights.

The Hong Kong Court of Final Appeal on Tuesday said the government was violating the city's Bill of Rights by failing to provide an "alternative legal framework" for recognition of same-sex unions to meet "basic social requirements".

The court granted two years’ time to the city administration to ensure rights, such as access to hospitals and inheritance, in an effort to protect same-sex couples.

Same-sex couples also need to "have a sense of legitimacy which dispels any sense of them belonging to an inferior class of person whose committed and stable relationships are undeserving of recognition", the panel of judges, including chief justice Andrew Cheung, wrote.

However, the court refused to grant equal marriage rights to gay couples. The court "unanimously dismisses the appeal in relation" to same-sex marriage and recognition of foreign same-sex marriage, it said.

The ruling comes following a five-year legal battle fought by jailed pro-democracy activist Jimmy Sham, who had appealed to the government in 2018 for recognition of overseas same-sex marriages.

Mr Sham, 36, married his partner in New York in 2013 and twice lost in lower courts after launching his bid for the Asian financial hub to recognise overseas same-sex marriages. The activist is one of the 47 democrats charged under China's national security law over an unofficial primary election held in 2020.

The judges suspended a declaration that the city administration's lack of an alternative legal framework had violated Mr Sham's rights, allowing the government two years to make further submissions.

Detained activist Jimmy Sham, center, leaves a prison van to enter the Court of Final Appeal (AP)

Judges Roberto Ribeiro and Joseph Fok noted that same-sex couples face "real difficulties in many situations". "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 wrote.

"The absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples."

Lawyers and activists say the court ruling would have a far-reaching impact on the LGBTQ+ community and force the city administration to create legal regime to allow smoother inheritance and insurance options as well as tax allowances, among other rights.

Jerome Yau, co-founder of Hong Kong Marriage Equality, said the ruling marked a "major development" for the community for the recognition of same-sex marriage.

“Given all the considerations, and what the court majority has said, I think this is a major step forward and it is a good thing,” he told the Hong Kong Free Press.

The ruling isn't a victory for the appellant but is a victory for the community, said Azan Marwah, a legal advisor for Hong Kong Marriage Equality.

The easiest thing for the city administration to do was “provide same-sex marriage in substance” by amending the relevant legislation, he told the newspaper.

Mr Marwah suggested that Hong Kong authorities could follow the "comprehensive and sensible" legislation put in place in England.

Mainland China decriminalised homosexuality in 1997, and in 2001, removed it from its list of mental illnesses, but same-sex marriage is not recognised and no official legal protections exist.

Recent surveys in 2023 found 60 per cent of the respondents in Hong Kong supported same-sex marriage, a 38 per cent rise since 2013.