After the Vote: Breaking Hong Kong's Same-Sex Partnership Impasse

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/

Introduction: Legal development of same-sex couples’ rights 

Hong Kong’s framework of monogamous, heterosexual marriage was formally established in 1971 via the Marriage Ordinance. Marriages entered into Hong Kong on or after the 7 October 1971 are only voluntary unions of one man and one woman for life. [1] Within the same decade, Hong Kong passed a law reform in 1979 decriminalising private and consensual sexual intercourse between adult males (previously punishable by life imprisonment). [2] While the reform gradually shifted public debate from criminal control to one closer to rights protection, the basic structure of family law laid down in 1971 still forms the institutional context faced by same-sex couples in their quest for legal recognition today. 

In recent years, Hong Kong’s legal development of same-sex couples’ rights has largely been shaped by a series of landmark cases that reached the Court of Final Appeal (CFA). In QT v Director of Immigration (2018), the CFA held that the Immigration Department’s sole acceptance of heterosexual couples and rejection of same-sex couples for its dependent visa policy constituted unlawful discrimination on grounds of sexual orientation. [3] In Ng Hon Lam Edgar v Secretary for Justice (2024), the Court ruled the exclusion of same-sex married couples from legal entitlements and benefits under intestacy and inheritance laws is discriminatory. [4] In Sham Tsz Kit v Secretary for Justice (2023), the Court declared that the government’s lack of legal framework for the recognition and protection for same-sex partnerships violated the constitutional right to privacy. [5] The court imposed an obligation on the government to establish such a framework within two years, with a deadline of October 27, 2025. [6]

Turning point: The Same-sex Partnership Bill 

On July 11, 2025, the government introduced the Same-sex Partnerships Bill (the Bill) into the legislative process. The Bill would allow same-sex couples who had registered their marriage or relationship overseas to register civil partnerships in Hong Kong, granting them certain legal rights, such as the ability to make medical and funeral decisions for their partners. [7] Of the 10,700 submissions to the Legislative Council (LegCo) public consultation, 80% opposed the Bill arguing that it breaches “Chinese moral standards” and represents “Western thinking.” [8] Other citizens in support saw the Bill as a small step forward, albeit inadequate given the distance remaining to the ultimate goal of legalizing same-sex marriage. While Chief Executive John Lee backed the bill warning that violating the CFA’s ruling “will bring serious consequences,” nearly all major political parties opposed the government’s proposal due to its erosion of the institution of traditional marriage. [9] On 10 September 2025, the Bill was voted down as widely anticipated by the LegCo with 71 votes against, 14 in favor, and one abstention. [10]

The road ahead: Ways out of the stalemate 

Following the Bill’s rejection in LegCo, the Chief Executive announced the government would explore administrative measures to safeguard the rights of same-sex couples. [11] These measures aim to protect fundamental rights without recourse to legislation. For instance, the government would grant same-sex partners the right to access the medical information of their partners and make medical decisions for them, in place of the proposed legislative amendments to the Medical (Therapy, Education, and Research) Ordinance (Cap. 278) and the Personal Data (Privacy) Ordinance (Cap. 486) respectively. Moreover, a registered same-sex partner would be able to be a living donor for their partner under the Human Organ Transplant Regulation (Cap. 465A), and be involved in the cremation arrangements for the deceased under the Cremation and Gardens of Remembrance Regulation (Cap. 132M). [12] 

However, questions linger over whether administrative measures could satisfy the CFA’s requirement for a stable and coherent legal framework. Others look to legal mechanisms to address the rights deficit the Bill’s rejection leaves unresolved. The “retention of supervisory power” is a common remedy in constitutional challenges against laws concerning LGBTQ+ rights. In the case of W v Registrar of Marriages (2013), the CFA made direct orders to effectuate the lawsuit’s outcome, with the effect of the order suspended for a period of time, subject to liberty to apply for an extension. [13] Similarly in Sham Tsz Kit, the court granted “liberty to apply to the Court in connection with the implementation of or non-compliance with” the principal judgment. [14] The CFA may grant orders of mandamus, prohibition, or certiorari at its discretion in response to parties’ application. [15] A certiorari (or quashing order) is likely inappropriate since it is a remedy used to invalidate an unlawful decision made by an inferior body or lower court, and Sham Tsz Kit does not involve such a decision which the CFA may quash by this order. A prohibition is also unlikely suitable as Sham (the claimant) would have to clearly point out the particular course of action he wishes the CFA to prohibit the government from acting. The CFA’s focus is on the government’s positive duty to act (i.e., legislate), rather than its negative duty to refrain from acting. 

In the face of the failure of the first two remedies, a mandamus (or commanding order) may appear appropriate. It compels a public body to perform a specific duty prescribed by law and within the scope of its public office. Although Sham’s inability to identify the specific thing he requires the government to do may not necessarily bar him from seeking a mandamus, the CFA would face significant difficulties in drafting one. [16] The Court would have to stipulate the exact orders to establish a legal recognition framework for same-sex couples and allow them to enjoy “core rights” as broadly defined in the principal judgment without risking acting beyond its constitutional scope of power as the judicial branch of the state. 

Given the limits of legal mechanisms to redress the rejection of the Bill, these administrative measures offer a practical interim solution. While these measures are far from covering all “core rights” as mandated by the CFA in Sham Tsz Kit, one should not underestimate the practical significance of these rights, modest as they are. One might hope that a revised bill is on the horizon. In any revised bill, one pragmatic approach would be to adopt an “opt-out” model by inserting a provision stipulating that all legislation concerning spouses or marriages should be interpreted as including same-sex couples or relationships, unless expressly excluded. This would spare the government the need to revisit and amend the bill each time new legislation is enacted. Contentious areas such as adoption, surrogacy, and parenthood may fall within the opt-out list of exceptions, subject to further legislative debate in recognition that progress, in Hong Kong as elsewhere, tends to arrive not all at once but in negotiated increments. 

The experience of other common law jurisdictions could be instructive. In the United Kingdom, civil partnerships were introduced in 2004 as an intermediate step before same-sex marriage was legalised in 2014—a ten-year progression sustained by incremental political commitment. [17] Taiwan’s legalisation of same-sex marriage in 2019, driven by a Constitutional Court ruling, offers a parallel closer to Hong Kong's constitutional context. [18] Hong Kong’s trajectory points toward a similar gradualism, but whether any legislative solution can survive the political climate that defeated the Bill remains an open question. The Basic Law leaves family law largely to the legislature, and as the LegCo vote demonstrated, the legislature is not yet willing to act. The CFA’s supervisory jurisdiction provides a safety valve, but one the court itself acknowledged is limited in its remedial reach. In the meantime, the gap between Hong Kong’s constitutional commitments and its legal reality will remain—felt most acutely not in courtrooms or legislative chambers, but in hospitals, registries, and bereavement offices across the city.


Bibliography 
[1] Marriage Reform Ordinance, Cap. 178.
[2] Law Reform Commission of Hong Kong, Report on Laws GoverningHomosexual Conduct (Topic 2) (Government Printer, 1983) para 1.4.
[3]  QT v Director of Immigration [2018] HKCFA 28.
[4] Ng Hon Lam Edgar v Secretary for Justice [2024] HKCFA 34.
[5] Paco Chai and Christopher Crabtree, “Hong Kong's New LegCo Faces Test Over Same-Sex Partnership Recognition” (The Diplomat, 24 January 2026).
[6] ibid.
[7] Registration of Same-sex Partnerships Bill 2025.
[8] Hillary Leung, “Hong Kong's Legislative Council Votes Down Same-Sex Partnership Bill” (Hong Kong Free Press, 10 September 2025).
[9] ibid.
[10] ibid.
[11] Kelly Ho, “Hong Kong to Explore Administrative Means to Protect Rights of Same-Sex Couples after Bill Failure, Leader Says” (Hong Kong Free Press, 16 September 2025).
[12] The Bill (n [7]).
[13] W v The Registrar of Marriages (2013) 16 HKCFAR 112.
[14] Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28, (2023) 26 HKCFAR 385.
[15] High Court Ordinance (Cap. 4) s 21I (1).
[16] Halsbury’s Laws of Hong Kong (2024) vol 34(1) [226.114]; see also 龐孟婷 v 華人廟宇委員會 [2021] HKCA 661, [2021] HKCU 2181, [14]–[18], [22]–[26] (Lam VP).
[17] Civil Partnership Act 2004; Marriage (Same Sex Couples) Act 2013.
[18] Council of Grand Justices, Judicial Yuan Interpretation No 748 (24 May 2017).


Author Biographies
Caroline XU is a year 1 LLM student. Her interest in LGBTQIA+ rights is grounded in a broader commitment to justice and the protection of marginalized communities, with a particular focus on the ambivalent role of law as both a mechanism of constraint and a site of resistance in the pursuit of equality.

Thomas CHUNG is a year 3 LLB student born and raised in Hong Kong. He has served as Project Director for Be EnGayged in 2023/24 and 2024/25 and currently serves as Careers Officer of a LGBTQIA+ tertiary student body.  He is committed to this meaningful cause and is pleased to serve and contribute to the wider LGBT+ community and beyond.
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Thomas YUEN is a year 3 BA&LLB student from Hong Kong. As part of the LGBTQIA+ community, he is committed to advancing a more inclusive society in Hong Kong, and to advocating for sexual minorities’ rights by bringing a legal perspective to public understanding. 

ZHENG Yuqiao is a year 1 LLB student from Beijing. Her involvement with Be EnGayged reflects a conviction that advancing LGBTQIA+ rights requires not only understanding and compassion, but also the legal knowledge and expertise to achieve concrete policy and legal outcomes.