Sham Tsz Kit v. Secretary for Justice: A step too ambitious?

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https://www.scmp.com/comment/letters/article/3103940/lgbt-rights-hong-kong-if-tradition-justified-discrimination-where

Sham Tsz Kit v. Secretary for Justice

Summarised by Kairos Chu (Associate)

Introduction

Since 2017, the courts in Hong Kong have gradually recognized the rights of same-sex couples in specific circumstances, such as with spousal benefits, tax benefits and dependent visas. However, this case is distinguished from previous cases, as the applicant was in fact challenging the constitutionality of the laws in Hong Kong for the general lack of recognition towards same-sex marriages.  
  
Facts

The applicant, a male Hong Kong permanent resident, was born and raised in Hong Kong. He married his same-sex partner in the United States in 2013. In his application, he argued he would have married his partner in Hong Kong if he was allowed to, and it was unfair that they were forced to marry outside Hong Kong.  
  
On 22 November 2018, he submitted a judicial review application seeking a declaration that the laws of Hong Kong, insofar as they do not recognize same-sex marriages, constitutes unlawful discrimination on the grounds of sexual orientation.  
  
Issues

The applicant put forward three alternate grounds of judicial review: 

1. The exclusion of same-sex couples from the institution of marriage constitutes a violation of the right to equality, protected under the Hong Kong Bill of Rights (BOR) and the Basic Law (BL).  
2. The laws of Hong Kong, insofar as they do not allow same-sex couples to marry and fail to provide alternative means of legal recognition for same-sex partnerships, violates the right to privacy and the right to equality under the BOR and the BL.  
3. The laws of Hong Kong, in so far as they do not recognize foreign same-sex marriages, constitutes a violation of the right to equality under the BOR and the BL. 

  
Decision

On the first two grounds, the Court dismissed the application as similar grounds were already rejected in MK v Government of HKSAR. In the previous case, the Court held that (i) the denial of the right to marriage did not constitute any violation of their constitutional rights, and (ii) the Government was under no positive obligation to provide an alternative legal framework that allowed same-sex marriages.  
  
On the third ground concerning recognition of foreign same-sex marriages, the court also rejected the application. In considering unlawful discrimination, the court adopted the two-stage approach endorsed by the Court of Final Appeal in Leung Chun Kwong v Secretary for Civil Service and QT v Director of Immigration. The relevant test was (1) whether there was differential treatment on a prohibited ground and (2) if there was, whether the differential treatment was justified. On the first stage of the test, the court argued the reason for differential treatment between opposite-sex and same-sex couples is often fact-specific. It will not be possible to determine whether differential treatment was based on a prohibited ground without relevant context. The court therefore refused to address the issue in abstract and ruled that the applicant’s attempt to recognize foreign same-sex marriages regardless of context is too ambitious. The application was consequently rejected.  
  
Comments

This case is a good representation of the Court’s lukewarm approach towards marriage equality in Hong Kong. Despite being willing to strike down specific policies or statutory provisions on the grounds of unlawful discrimination based on sexual orientation, the court is reluctant to provide complete parity of legal recognition between same-sex and opposite-sex marriages under the current legal climate.