Legal Recognition of Different Forms of Same-sex Relationships in Hong Kong

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

Jessica Lam
Jessica Lam is a final year LLB student at HKU. She is interested in advocating human rights, including the rights of the LGBTQ+ community.

Summary:
The legal protection of different forms of relationship models for same-sex couples is very limited in Hong Kong. The inadequate protection for same-sex marriage and civil partnership is the result of the widely upheld notion of “Christian marriage” in Hong Kong. Same-sex couples could only seek limited protection in the cohabitation context.

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
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[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