Author: Caroline Xu (LLM, Year 1), Thomas Chung (LLB, Year 3), Thomas Yuen (BA&LLB, Year 3), Zheng Yuqiao (LLB, Year 1) 

Summary: This article considers the legal and political impasse surrounding same-sex partnership recognition in Hong Kong in the wake of the 2025 defeat of the Same-sex Partnerships Bill. The article argues that administrative measures, while normatively and institutionally limited, represent the most viable interim response, and that any meaningful reform is likely to proceed through gradual, negotiated legislative change rather than judicial compulsion.

Picture: Kyle Lam/HKFP
​https://hongkongfp.com/2025/09/11/lgbtq-activists-disappointed-as-same-sex-partners-bill-vetoed-beijing-says-outcome-shows-legco-not-rubber-stamp/

Author: Victoria Ip (she/they) is currently a third-year Government & Laws student at HKU. She is vocal in local issues and hopes to strive for LGBTQ+ equality and protection. 

Summary: This article offers the author’s objective prediction as to whether Sham Tsz Kit (Jimmy)’s CFA Challenge on recognition of same-sex marriage and foreign same-sex marriage in Hong Kong would succeed. The article first summarises the grounds of previous and current proceedings of Jimmy, then offers a perspective in which the recent judgement of Q & Tse Henry Edward v Commissioner of Registration might give hope to Jimmy’s appeal. In the end, the author gives their prediction as to the outcome of Jimmy’s final quest.

Picture: May James/HKFP
​https://hongkongfp.com/wp-content/uploads/2019/11/district-council-election-2019-november-24-16-Copy.jpg

Main Content: 

Two years after the release of Sham Tsz Kit (Jimmy)’s first constitutional challenge on the recognition of gay marriage, the ultimate question reaches the Court of Final Appeal. The CFA is yet to decide whether overseas gay marriage should be legally recognised. While it is important to refrain from making definitive predictions regarding the ruling, the recent court decisions regarding the rights of the LGBTQ+ community may provide insight into the potential success of Jimmy’s case. This article aims to discuss how the Court might respond to the ultimate appeal of Jimmy. 

1. Jimmy’s Judicial Review Timeline

Jimmy was the first to challenge the legality of same-sex marriage in Hong Kong subsequent to the landmark ruling MK v Government of HKSAR, which confirmed that marriage, under the Basic Law and local ordinances, should include only marriages between “one man and one woman”. [1] He submitted his judicial review application in November 2018, on the grounds that the exclusion of same-sex couples from the institution of marriage and the non-recognition of foreign same-sex marriages constitute constitutional violations of right to equality and right to privacy. Bounded by the judgement of MK, only the ground of “the laws of Hong Kong, in so far as they do not recognise foreign same-sex marriage, constitute a violation of the right to equality protected by BOR22 and BL25” reaches the High Court. [2]

The Court of First Instance (CFI) held that Jimmy’s same-sex marriage lacked essential validity and hence could not be recognised as valid under Hong Kong law. CFI, by applying the observation in QT v Director of Immigration that a valid marriage in Hong Kong is restricted as “heterosexual and monogamous”, held that marital status is not a status open to couples of the same sex. The final ground denied the attempt to apply the proportionality test to prove unjustifiable discrimination. [3]

The Court of Appeal (CA) upheld the ruling of CFI that Basic Law only confers exclusive rights to marry upon heterosexual couples. [4] Furthermore, the CA dismissed the contention that the unequal treatment of same-sex couples who were married overseas, in comparison to their heterosexual counterparts, constitutes discrimination. This is because, according to the Basic Law, same-sex marriages are not constitutionally recognised, whether they are registered domestically or overseas. [5]

Jimmy was granted the leave to appeal to CFA in November 2022. [6] It will be his final chance to advocate for the recognition of overseas same-sex marriage in Hong Kong. The CFA judgement is still pending. 

For a more detailed case summary, please refer to “When will the rainbow stretch again? The first LGBTQ+ case brought to the Court of Appeal court - Sham Tsz Kit v Secretary for Justice”. 

1. Recent development of LGBTQ+ Issues

While most of the allies had felt hopeless towards the case, given that the Court is extremely reluctant to depart from MK and obiters of other landmark cases on LGBTQ+ rights like W and QT, the recent judgement of Q & Tse Henry Edward v Commissioner of Registration shone a beam of light to Jimmy’s victory. In the case of Q, CFA finally declared that the policy requirement for Female-to-Male transgender persons to undergo full Sex Reassignment Surgery in order to alter gender markers on HKID cards is unconstitutional due to violation of the right to privacy. Q’s judgement recognises transgender Hong Kong citizens’ rights to alter their gender marker, providing them full recognition of their intended gender without having to undergo full surgery. [7] 

Besides the recent judgement of Q, previous judgements on LGBTQ+ couples or individuals' rights (such as Leung Chun Kwong, Edgar Ng) supported the possibility that Jimmy may bring home an official legal recognition of his overseas marriage. 

1. Predictions to Jimmy’s CFA Challenges

Despite having personal inclination towards Jimmy’s success, I am rather reserved in saying that Jimmy has a chance to win the case for the following reasons: 

Firstly, it has been recognised in CFA, namely in W and QT, that the constitutional meaning of marriage is still confined to “voluntary union of life between one man and one woman”. CFA indeed had acknowledged the increasing social acceptance of same-sex couples, or other types of couples outside heterosexual ones, but the court still finds the marriage of heterosexual couples as the cultural fundamentals of Chinese traditional society. It could not be disputed that the importance of family and inheritance has been determinant of traditional Chinese culture, thus creating an irrefutable factor for the court to overturn. 

Secondly, CA and CFI have been slow in overruling the lower court judgements, as evidenced by Jimmy’s unsuccessful application and subsequent appeal.  MK, which is a lower court judgement, still stands strong amid being endorsed by higher courts. Possibly due to policy reasons, such as the need to raise the birth rate and alleviate ageing population, the Court has mostly been on the Government’s side unless the case concerns unjustifiable discrimination on the rights of persons that does not have anything to do with the person’s sexual orientation (see QT, Leung Chun Kwong, Edgar Ng etc). Yet, the victory in Q undoubtedly provides a much-needed impetus and raises the question of whether CFA would depart its judgement from the lower courts. 

Thirdly, the questions Jimmy raised to CFA were not particularly strong, as commented by the Appeal Committee panel. The three crucial queries pertain to whether the exclusion of same-sex couples marriage, the failure to provide alternative legal recognition of same-sex partnerships, and the non-recognition of foreign same-sex marriage amount to violations of the Hong Kong Bill of Rights and the Basic Law. In the past successful legal challenges on LGBQT+ rights, there must involve discrimination to persons compared to those in analogous positions (also known as unjustifiable discrimination). Given that the court has been affirmative in denying same-sex marriage in Hong Kong, it would be hard for Jimmy to argue plainly on the constitutional interpretation of marriage.


Bibliography 
[1] Para.16, MK v Government of HKSAR [2019] HKCFI 2518
[2] Para. 7, Sham Tsz Kit v Secretary for Justice [2020] HKCFI 4211
[3] Para. 7-13, Sham Tsz Kit v Secretary for Justice [2022] HKCA 1247
[4] Para. 30, ibid.
[5] Para. 72, ibid.
[6] Para. 2, Sham Tsz Kit v Secretary for Justice [2022] HKCA 1690
[7] Q & Tse Henry Edward v Commissioner of Registration [2023] HKCFA 4

​

Image source: ​https://edition.cnn.com/2017/09/26/asia/hong-kong-lgbt-dependent-visa-ruling/index.html

Image source:​ http://www.montanakaimin.com/news/facing-microaggressions-how-lgbt-students-navigate-classrooms-campus/article_9805c04a-e648-11e5-a50d-ebbcc8c1bf87.html

Jisu Park
​
Jisu is a student from BSocSc&LLB programme. She is a non-LBTQI+ ally, who wills to work for LGBTQI+ rights and protection after graduation. ​​

Unseen Everyday Micro-Aggressions
*This article is written with the personal testimonials of people who either were subjected to or witnessed the micro-aggression. The names used in the articles are aliases. *


Microaggression refers to commonplace daily verbal, behavioural or environmental slights, whether intentional or unintentional, that communicate hostile, derogatory, or negative attitudes towards stigmatised or culturally marginalised groups [1]. Unlike outright aggression, microaggression is subtle and oblivious to both the aggressor and the victim; however, the psychological and societal effect of microaggression is equivalent to that of outright aggression. Within the LGBTQI+ community, microaggressions reduce a person’s capacity to be honest about their sexuality and sexual orientation by creating a hostile environment. It further reinforces the heteronormativity in the society of evolving relationship norms. Unfortunately, in a conservative Hong Kong society, diversity in gender and sexual orientation is still an estranged concept, especially to older generations. Hence, despite their adverse effects, both direct aggression and micro-aggression against the LGBTQI+ community is prevalent in Hong Kong society. This article explores personal accounts of different experiences of micro-aggression against the LGBTQI+ community and their impacts on individuals and wider society. 


Sarah
Sarah is a non-binary individual. One day S was filling out the application for a job. Then S found that there are only three prefixes - Mr., Mrs., and Ms - to define oneself. S does not identify oneself with any of those prefixes. S, however, must choose one because it was a mandatory field. S reluctantly puts in Ms., but S feels as if one’s entire gender identity is rejected. 

Sarah’s experience is an example of microaggression, where the aggressor is oblivious to the act of aggression. Here, only after acknowledging how S must have felt, can we recognise that binary gender prefixes could amount to micro-aggression. With society’s deeply rooted binary norm, people are usually unaware of how such a minor thing could harm society-wide understanding of gender diversity. Thus, they unconsciously assume that others would identify themselves as either male or female. Such binarity thinking is detrimental as it could marginalise certain individuals who identify themselves outside the binary gender and induce them to think that they do not belong in society. 


Adam
Adam is a homosexual cis-gender male. He met his partner recently, so he talked about it with his friends. One of his friends, who were unaware of A’s sexual orientation, asked, “how did you meet your girlfriend”. A felt torn between wanting to be candid and open about his sexuality and being afraid of the friend's judgement. He ends up fabricating the story and feels guilty.   


Chris
Chris is a heterosexual cis-gender male. He loves putting on make-up and dressing himself to look pretty. One day he tried the trendy make-up by Kylie Jenner and went outside to meet his friends. In MTR, he hears some people saying, “I bet $1000 that he is gay”. 

What Chris’ case shows is how some people relate femininity to a stereotypical characteristic of “gay” people, albeit Chris is not an LGBTQI+ individual. Despite the fact that one’s personality or physical characteristics do not define one’s sexual orientation, there is a general misunderstanding that homosexual individuals are more inclined to the characteristics of the opposite sex: gays to be more girlish than straight guys and lesbians to be more boyish than straight girls. The most common examples would be presuming that a girl would be bisexual, lesbian or transgender if she has short hair and boyish clothes, that a guy having long hair and putting make-up is queer, and that a guy with a high-pitched voice and feminine accent would be gay. Although sexual orientation is distinctive to one’s gender identification, people misconceive that one pursues homosexuality because one wills to be a different gender. Such microaggression is harmful not just to LGBTQI+ community but non-LGBTQI+ community: first, it reinforces the misconception that queer people is prone to pursue gender behaviours opposite of their sex. Second, it prevents free expression or pursuit of activities connoted with specific gender norms.


Jess
Jess is a bisexual cis-gender female. She recently came out to her best friend, Betty. Her friend replied, “you’d better not like me”. For Jess has always thought of Betty as her only best friend, J could not believe that B thought J would perceive B as a potential romantic partner just because she came out. Despite B’s humorous tone, J is hurt and feels as if their friendship will never be the same. 

Indeed,  LGBTQI+ people could be hindered from establishing casual and comfortable friendships with same-sex people lest others feel uncomfortable about their sexual orientation. Though the person would have been making a pun like B, it could instil fear in LGBTQI+ people that their genuine interest in people could be interpreted as a romantic gesture. 

The experiences of Sarah, Adam, Chris and Jess are the most prevalent forms of micro-aggressions that people experience on daily basis. From a simple assumption of one’s sexuality to the mockery of misformulated stereotypes, any acts or words spoken about the LGBTQI+ community could be a microaggression, whether they were said or acted to their face. While LGBTQI+ people are effectively precluded from marriage and forming a family, LGBTQI+ people are sometimes even forced to convert, get married to the ones they do not want, or even told: "it is simply a phase". Here, we must understand that once micro-aggression is left unacknowledged and abused within society, the progression in gender equality and LGBTQI+ rights would deter. We should, therefore, reflect on ourselves as to whether we have unconsciously engaged in micro-aggressions by generalising and assuming others’ sexuality based on what heteronormative society has educated and dictated upon us. Indeed, a minor change could change the prospect of LGBTQI+ rights, and the slightest recognition could change how they are treated in society. 

​
References
[1] Sue, D. W. (2010). Microaggressions in Everyday Life: Race, Gender, and Sexual Orientation (1st ed.). Wiley.

[2] Woo, A. (2021, June 15). How Microaggressions Affect the LGBTQ+ Community. NewYork-Presbyterian. https://healthmatters.nyp.org/how-microaggressions-affect-the-lgbtq-community/

image source: 
​https://www.reuters.com/article/us-hungary-lgbt-wedding-idUSKBN27M235

image source: 
​https://med.stanford.edu/news/all-news/2022/01/mental-health-hormone-treatment-transgender-people.html

image source: ​https://en.wikipedia.org/wiki/Court_of_Final_Appeal_%28Hong_Kong%29

image source: ​https://gaygames.org/

At its annual meeting in Paris in 2017, the international Federation of Gay Games (FGG) announced that Hong Kong had won the bid to host the Gay Games XI in 2022, beating Washington DC, USA and Guadalajara, Mexico. The decision marks the first time a city in Asia becomes the host of the Games. 
Origin of the Gay Games
The Gay Games (originally named the “Gay Olympics”) was the brainchild of Tom Waddell. Out as a gay man, Waddell had served as a physician within the US military and competed as a decathlete in the 1968 Mexico City Summer Olympics. Galvanized by the momentum of civil rights movement and the burgeoning of equality rights advocacy (for race, gender, sexual identity, etc.) in society at that time, Waddell solidified his idea of holding an “Olympic-style” sporting event for the LGBTQ+ community.
Through the “Gay Olympics”, Waddell hoped to recreate the Olympics’ power to bring people of diverse backgrounds together, with his additional agenda to humanize and make visible the LGBTQ+ community to spectators. In an interview with the CNN, Waddell said that the Games is a form of activism, through which LGBTQ+ people could play the same sports they watched during the Olympics and achieve the same kind of glory as he had at the 1968 Olympics. 
Just short before debut of the frist Gay Olympics in 1982, San Francisco, the United States Olympic Committee (USOC) sued Waddell and other event organizers for appropriation of the name “Olympics.” Despite many other groups (e.g., the “Special Olympics”) have previously used the name without facing lawsuits, USOC alleged that a “Gay Olympics” would injure its image and obtained an injunction against Waddell’s use of this name 19 days before the opening ceremony. The event was immediately renamed as the “Gay Games.”
The nine-day Games was a great success and attracted 1,350 athletes from 12 nations to compete. One distinguishing feature of the Games is taht everyone is welcomed to participate regardless of race, ethnicity, sexual orientation, or atheletic ability. Throughout the years, events at the Games have extended beyond the traditional Olympic sports to include Dodgeball, Cheerleading, E-Sports, and cultural events which enhances accessibility to and inclusion of all participants.
Gay Games XI Hong Kong: from 2022 to 2023?
Just like the first ever Gay Games in history, Gay Games Hong Kong (GGHK), the first ever in Asia, has been riddled with obstacles and uncertainties. 
The GGHK, which was to be held in 2022, was postponed to 2023 due to travel restrictions and other public health concerns in light of the pandemic. Guadalajara will join Hong Kong as the co-host next year to ensure greater accessibility for participants across the world. To some critiques, however, this postponement and new arrangements reveal the GGHK’s lack of resources and institutional support.  This February, Beijing was able to hold the Winter Olympics while in compliance with a rather stringent “zero-COVID” policy, whereas the GGHK entirely relies on volunteers and the fundraising of the non-profit FGG. It is impossible to establish a similar “closed-loop” bubble with routine PCR testings and disinfections the way Beijing had it. 
Another dilemma is the venue-booking for the GGHK. Lisa Lam, a co-chair of the Games, told RTHK that with the existing rigid policy of the Leisure and Cultural Services Department (LCSD), a charitable orginazation can only book LCSD facilities three to six months in advance. As organizers would not be able to have early enough confirmations of the government-run venues, they have turned to universities and private sports clubs for support.
Hong Kong’s legal and socio-political climate underwent some changes after it was elected the host city in 2017. Although Hong Kong courts have retained the originalist definition of marriage - between a man and a woman to the exclusion of others, there has since been tangible judicial progress in upholding the validity of same-sex foreign workers’ dependent visa and a gay civil servant’s spousal benefit. In 2020, the High Court granted two separating lesbian mothers joint custody of the children. 
However, socio-political concerns have become more conspicuous after the protracted anti-extradition movement in 2019 and the subsequent passage of National Security Law. In 2021, the Taiwan Gay Sports and Movement Association announced that they would not send a Taiwanese delegation to the GGHK, fearing for the athletes’ “personal safety” and inability to display the Republic of China national flag. Inside the Legislative Council, three pro-establishment legislators expressed sharp criticisms that the authority’s support for the Games would be tantamount to supporting same-sex marriage. Among them, Junius Ho further suggested that to avoid another potential “political storm,” officials should consult the Office for Safeguarding National Security before they openly take a stance.
Ways Forward
It is almost uncanny how a successful preparation and hosting of the Gay Games can be so easily overshadowed by the “greater” or “mainstream” concerns for trademark violation, public health crisis, or political disruptions. And yet, the Games has made its 40th anniversary and continues expanding its influence geographically and demographically. The general public is overall optimistic that GGHK 2023 would be a great opportunity to strengthen Hong Kong’s image as a vibrant, diverse, and welcoming international city gradually recovering from the previous turmoils. 
The GGHK would also be a huge benefit for the local LGBTQ+ community, providing those who were unable to participate before the unparalleled experience of celebrating diversity and unity in the home city. Most importantly, a new sport has been added just for the Hong Kong Games: Mahjong.
Reference:
 https://edition.cnn.com/2021/07/31/us/gay-games-lgbtq-olympics-trnd/index.html 

 San Francisco Arts & Atheletics Inc. v United States Olympic Committee.
https://gaygames.org/History

 https://gaygames.org/latest-news/7568459 
 https://news.rthk.hk/rthk/en/component/k2/1619165-20211110.htm

QT v Director of Immigration
Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue
 AA v BB
 https://www.taipeitimes.com/News/taiwan/archives/2021/08/07/2003762181
https://www.scmp.com/news/hong-kong/society/article/3146387/hong-kong-gay-games-wolf-sheeps-clothing-and-threat-national?utm_term=Autofeed&utm_medium=Social&utm_content=article&utm_source=Twitter#Echobox=1629908050

Image source: Courtesy Eaton HK, https://www.timeout.com/hong-kong/lgbt/the-best-lgbtqi-venues-in-hong-kong

Summary:
​Shimmery spotlights, loud music and intoxicating liqour. As the K-pop girl group song reaches its climax, so is the atmosphere of the bar. Mr A will walk us through a little bit of everything about gay bar, and his insight into LGBTQ+ issues.

Bars and the Gay Liberation Movement
Did you know that in the past, if you wanted to know whether someone was gay, you could ask him, ‘Do you know where is PP?(PP refers to the first generation gay bar in Hong Kong  - Propaganda)’. If he smiles, you know that he is a friend of Dorothy. Well, for now, ask him if he has ever been to the fifth floor (referring to a gay bar called Vibranium). Gay bar is a really ideal place for relaxing, getting yourself intoxicated or meeting some new friends (or even your lover). On the other hand, gay bars also played a essential role in the gay liberation movement.

‘You just feel like you are not alone here, you know,’ Mr A, who is a frequent customer of gay bars, said. ‘Hong Kong is much more conservative than you think. People are just, close-minded, not willing to accept things that were different from what they perceived. People always say “Be yourself”, but how do I dare to when most people around me are homophobic,’ Mr A added.

Indeed, Hong Kong, although has positioned itself to become the world city of Asia, is conservative. Only was sexual intercourse between homosexuals in Hong Kong decriminalised in 1991. Back in 1969 had Hong Kong tried to decriminalise sexual intercourse between homosexuals but failed, due to the opposition of the ethnic Chinese people. 

‘Their comments are hurtful, for real. You won’t want to know what they have said to me when I came out to them. They were my classmates. Anyways, I am sort of a tough guy, and I can bear with those comments (laugh). Thats’s why I come to visit gay bars so frequently, I feel included here, I feel like I can actually be myself here, there’s no need to camouflage myself anymore. It feels so good,’ said Mr A. 

But not all the gays had the priviledge to ‘Be Yourself’ in the past. June 28, 1970 was a date which marked the first-ever-held Gay Pride. It was also the date which marked the first anniversary of the Stonewall riots. In the 50s and 60s, the judiciary of the United States was homophobic, the society itself was, too,  homophobic. So what happened was that there was a police raid at the Stonewall Inn in New York City, at which there were so many gay and lesbian bars owned by Mafia. The people there fought back and things went violent. It was the Stonewall riots which had united the members of the  LQBTQ+ community in the United States regardless of their race, sex, social status, to form a coherent ‘communuity’. 

When being asked if there is any interesting thing in gay bar, Mr A said, ‘Handsome men! (laugh) Nah, it’s more than just about men. The drinks, the ear-piercing music, and more importantly, the atmosphere. People who go there just want to have fun, you know. Forget about work and burden and just have some fun. There is a bar which I often go to, and there is a dance floor in the middle. Oftentimes when the atmosphere reaches its climax, I climb up there and dance like crazy!’ 

Regarding his views towards the future of the gays in Hong Kong, Mr A suggested, ‘That is a delicate issue. For me I dare not to say pessimistic, but also not that optimistic indeed. The gay marriage, the sexual orientation discrimination ordinance, homosexual couples adopting children, all this issues should have been dealt with a long time ago, but what is the progress? Eternal consultation is what we have now. I see the dawn though, like the Gay Games 2023.’

Things do change. 153 years after criminalising sexual intercourse between homosexuals, Hong Kong is holding her first Gay Games in 2023.  Six months after the Stonewall riots, two communities which focused on LGBTQ+ rights and three newspaper offices which promoted the lives of the members of the LGBTQ+ community were established. On 28 June, 1970, the very first Gay Pride was held in New York City, San Fransisco, Los Angeles and Chicago. From that date on, other cities held Gay Pride in late june in memorial of the Stonewall riots. The Stonewall riots marked a milestone in the gay liberation movement. After that, more and more gays stood up and set up organisations concerning the rights of the LGBTQ+ community. 

‘Actually those legislative things should be, and should have been done, but those are not what concern me. For me, I just want to love someone I love, just like others, and that’s it! I mean, who needs to come out actually when you are just loving the one you love,’ Mr A concluded. 


Laws around alcohol
We all know that only those who are 18 or above can buy alcohol. Dutiable Commodities (Amendment) Ordinance 2018 (Cap. 109) states:

A person must not sell intoxicating liquor from a vending machine.

A person must not, in the course of business, sell or supply intoxicating liquor to a minor.

Furthermore, there are also regulations for the minors who drink alcohol on licensed premises. Dutiable Commodities (Amendment) Ordinance 2018 (Cap. 109) states:

A licensee must not permit a minor to drink any intoxicating liquor on any licensed premises.
 
But it may come to your surprise that there are no regulations for minors to drink alcohol on private premises. 

​

Sources:
[1] https://www.info.gov.hk/info/sar5/easia.htm
[2] https://lgbtpedia.hk/1969/05/31/1969%e5%b9%b4/

Image source: dolgachov 
​https://www.japantimes.co.jp/news/2020/06/27/national/social-issues/lgbt-same-sex-marriage-japan/

This article introduces the different degrees of protection offered to various forms of same-sex adult relationships in Hong Kong, namely marriage, civil partnership, and cohabitation. As examined below, there has been a descending hierarchy of legal protection in these same-sex relationships, with marriage being offered the least protection and cohabitation being offered the most. 

Marriage

The legal definition of marriage is currently stipulated under section 40 of the Marriage Ordinance (Cap. 181). Marriage is defined as a Christian marriage involving the voluntary union of life of one man and one woman to the exclusion of all others. It is clear from the legislation that same-sex couples are excluded from legal recognition. Although same-sex marriage is not recognized in domestic legislation, same-sex married couples who married overseas are given limited recognition, namely in areas of dependant visas, [1], spousal benefits [2] and joint tax assessment. [3]
This provision has been subject to constitutional challenges in the past, for example in MK v The Government of HKSAR, a lesbian challenged the denial of same-sex couples’ right to marriage since it amounted to a violation of their constitutionally protected right to marriage under article 37 of Basic Law. However, the Court of First Instance held that the right to marry under Basic Law has no application to same-sex couples. The court justified its position in stating that at the time of Basic Law’s promulgation, Hong Kong did not provide for or recognize same-sex marriage. [4] Although the court recognized a need to update the interpretation of the Basic Law to meet the changing needs of society and acknowledged international developments regarding same-sex marriage, the court held that evidence to support such change in contemporary needs is unclear. [5] The court’s reasoning demonstrates judicial reluctance to initiate huge policy changes involving sensitive issues with far-reaching social consequences.
It is worth noting that although the Court of Final Appeal has previously allowed transgender people the right to marry under their identified gender instead of their biological sex gender, [6] and acknowledged that one’s biological criteria is no longer determinative towards constituting an opposite-sex marriage, [7] the court had not relaxed from its traditional judicial position that only opposite-sex marriages are allowed in Hong Kong. The court’s judgment gave only operated to give effect to the applicant’s right to marry provided that she had already undergone sex reassignment surgery so that she could fit into the conventional opposite-sex marriage framework. 

Civil Partnership

The legal protection for civil partners is also limited. Civil partnership usually operates as an alternative regime for marriage, usually available for same-sex couples when marriage is not available for them. In Hong Kong, civil partnership is not recognized and civil partners are only given limited recognition, namely in the area of dependant visas. [8] It is also held that the government is not under a positive obligation to provide legal framework for the recognition of same-sex relationships because the court should look at the substance instead of form in providing rights. [9] Therefore, the court should not provide equal protection for same-sex couples if the government is not under an obligation to provide same-sex couples rights and benefits through the institution of marriage. [10] Since Hong Kong courts have taken a restrictive interpretation towards the construction of the right to marriage to only protect opposite-sex couples, it is difficult for same-sex couples to fight for a right to recognition of civil partnerships in Hong Kong following this line of reasoning.
 
Cohabitation

Cohabiting same-sex partners may have somealso gain some legal recognition. There is no current statutory definition of cohabitation relationships, but same-sex cohabitation relationships are recognized in different areas, including anti-discrimination, companies, compensation, crime, death, immigration, medical, public service, public welfare, regulatory and public offers. [11] It shouldshall be noted that in some areas same-sex cohabitants are offered less protection compared to their opposite-sex counterparts, leading to discrimination. Such differential treatment could be found under section 6G (3) of the Mandatory Provident Fund Schemes Ordinance (Cap. 485) which provides retirement benefits for dependant spouses of staff of the Mandatory Provident Fund Schemes Authority. Under this ordinance, the meaning of “spouse” only covers a person of the opposite sex with whom the person is cohabiting in a bona fide domestic relationship as man and wife. This shows that same-sex couples do not enjoy the same legal protections withint aare being discriminated against in the cohabitation context. 

Conclusion
  
As reviewed above, it is observed that the overall legal recognition for same-sex couples in different forms of adult relationships is insufficient. The inadequate recognition for same-sex marriage and civil partnership stems mainly from the judicial recognition of “traditional marriage” which only gives effect to a Christian model of opposite-sex marriage. This notion also influences same-sex cohabitants in the sense that they are given less protection than their opposite-sex counterparts. It is manifested that the more similarities that the LGBTQ+ relationship model has withhasis with the institution of marriage, the less likely that the model would be given legal recognition.

Bibliography
​
[1] QT v Director of Immigration [2018] HKCFA 28.
[2] Leung Chun Kwong v Secretary for the Civil Service and Another [2019] HKCFA 19.
[3] Ibid. 
[4] MK v The Government of HKSAR [2019] HKCFI 2518 at [14]. 
[5] Ibid at [24].
[6] W v Registrar of Marriages [2013] HKCFA 39. 
[7] Ibid at [103]. 
[8] n1 at [46] – [52]. 
[9] n6 at [47].
[10] Ibid. 
[11] Equal Opportunities Commission. (2019) The recognition and treatment of relationships under Hong Kong law. Retrieved October 15, 2022, from https://www.eoc.org.hk/EOC/upload/ResearchReport/2019626142922933384.PDF