Hong Kong's top court urges alternative legal framework for same-sex
couples
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[September 05, 2023]
By Jessie Pang
HONG KONG (Reuters) - Hong Kong's top court partially approved on
Tuesday a landmark appeal by an LGBTQ activist for recognition of
same-sex marriages, calling for new regulations for gay couples to
protect their basic social needs.
The ruling by Hong Kong's Court of Final Appeal followed a five-year
legal battle fought by jailed democracy and LGBTQ rights activist Jimmy
Sham. It was the first time that the court directly addressed the issue
of same-sex marriage in the Asian financial hub.
The judges dismissed Sham's appeal that he had a constitutional right to
a same sex marriage in Hong Kong but effectively gave the government two
years to ensure that rights, such as access to hospitals and
inheritance, could be protected for same-sex couples.
Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph
Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane ruled that
marriage freedoms outlined in Hong Kong's mini-constitution, known as
the Basic Law, were confined to opposite sex marriage.
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But the judges acknowledged same-sex couples' need "for access to an
alternative legal framework in order to meet basic social requirements."
Same-sex couples also needed 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
judges wrote.
The Hong Kong government did not immediately respond to a request for
comment.
Lawyers and activists say the ruling could potentially force changes by
the city's government and institutions, and lead to the creation of a
new legal regime to allow smoother inheritance and insurance options as
well as tax allowances, among other rights.
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The decision could also influence Asian financial hubs from Tokyo to
Singapore to draft more inclusive laws as a drawcard for the diverse,
global talent that multinational corporations from banks to technology
giants are seeking to hire and retain.
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.
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A statue of Lady Justice at the Court of
Final Appeal is pictured, in Hong Kong, China, September 5, 2023.
REUTERS/Tyrone Siu
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The judges suspended a declaration that the Hong Kong government's
lack of an alternative legal framework had violated Sham's rights,
giving the government two years to make changes before they would
say it was in breach of the law.
In the ruling, judges Fok and Ribeiro noted "real difficulties in
many situations" for some same sex couples, noting the need for them
to participate fully in health care and hospitalisation decisions.
"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."
Sham, 36, married his partner in New York in 2013 and twice lost in
lower courts after launching his bid for Hong Kong to recognise
overseas same-sex marriages in 2018.
Sham is one of the 47 democrats charged under the Beijing-imposed
national security law over an unofficial primary election held in
2020 and has been detained since March 2021.
Esther Leung, campaign manager of the Hong Kong Marriage Equality
group, said after the ruling that while the decision was a "major
step forward, it falls short of what is really at stake in this
case: full inclusion in marriage".
"It is a significant victory which makes clear that Hong Kong law
must afford due respect and protections to same-sex couples. This
will help families while hurting no one," Leung said.
Hong Kong is due to host Asia's first Gay Games in November - an
event that could help boost Hong Kong's lacklustre post-COVID
economic recovery. Family lawyer Azan Marwah said the ruling had
"serious and long-term impacts on the recognition and treatment of
same-sex couples here in Hong Kong and those who are coming from
abroad."
(Reporting by Jessie Pang; Additional reporting by Farah Master;
Writing by Greg Torode; Editing by Clarence Fernandez, Simon
Cameron-Moore and Kim Coghill)
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