Same-Sex Marriage and Hong Kong

Allison Lam

Author Allison Lam is a law student at HKU enrolled in the  LLB programme

These few years has been described as ‘bittersweet days’ [1] for the Hong Kong LGBT community. The momentum for marriage equality in Hong Kong has grown stronger and stronger as courts affirmed same-sex couples married abroad to have access to the same rights and benefits as opposite-sex couples. Still, neither the legislature nor the courts have shown any interest in giving full recognition to foreign same-sex marriages, not to mention lifting the local ban. 

Among all the cases regarding sexual rights, MK v Government of HKSAR has directly challenged the court against the denial of the right of homosexual couples to marry under Hong Kong law. The plaintiff challenged that the lack of legal recognition for homosexual couples violates their right to marriage under Article 37 of the Basic Law, as well as right to freedom of conscience and religion under Article 32 of the Basic Law and Article 15 of the Hong Kong Bill Of Rights. The High Court refused to do so on three grounds: first, legal recognition of marriage is a matter of status which affects society and is a question of public policy. Marriage has ‘deep-rooted social and cultural connotations’ which each place differs depending on its social context, thus requiring more analysis. Second, the court’s duty was to interpret the Basic Law to give effect to its legal intention at the time as they were drafted, adopted and promulgated. The relevant statutory provision is Article 37 of the Basic Law, which provides that the freedom of marriage of Hong Kong residents and their right to raise a family shall be protected by law. This article can be interpreted literally. However, in this case, it cannot be argued that this article had application to homosexual couples because such form of marriage was unknown at the time of promulgation of the Basic law. Lastly, the High Court emphasised that the court’s role is limited to exercising the power to update interpretation, but not to introduce or make a new policy. It is ‘beyond the proper scope of the functions or powers of the court, in the name of interpretation, to seek to effect a change of social policy on such a fundamental issue’.  This is yet another example of the court’s unwillingness to legalize same-sex marriage through its judgements due to tradition and policy reasons, as well as to trespass on the function of the legislature by extending legal recognition. 

Still, the path to achieving marriage equality is not hopeless. The only Court of Final Appeal decision on the right to marry in Hong Kong which gave transgender people the right to marry as their identified gender rather than their biological sex at birth is W v the Registrar of Marriages. In that case, the plaintiff was a post-operative male to female transsexual person. The court took societal changes into account and deemed that in present-Hong Kong, procreation was no longer regarded as necessary or essential marriage. Thus, there is no justification for rejecting the marriage due to the inability to have procreative sexual intercourse. [2]  It also discussed an individual’s inherent human dignity, equality and respect, especially to transexuals.[3] The court pointed out that if W was precluded from marrying a man, and in light of her irreversible surgery and rejection of male identity, when she cannot enjoy the right of marrying a woman, she would not be able to marry at all. Not only does it preclude W from enjoying fundamental rights, but also failed to demonstrate the court’s role in protecting members of minority communities. Thus, a remedial interpretation was given such that the laws must give effect to include the post-operative male-to-female transexual person within the meaning of ‘woman’ and ‘female’. Perhaps this judgement could serve as a starting point for future considerations and discussions of equality in cases relating to the rights of members of the LGBT community in Hong Kong. This result also leads to scholars arguing that a greater burden is imposed on the judicial branch ‘serve as a conduit for minority representation in contentious constitutional issues and more broadly as a forum for deliberative participation by marginalised communities’. [4] 

Taking reference from the cases mentioned above, human rights, dignity and traditions are the principle contradictory factors in the discussion of marriage equality. On one hand, different lawmakers and political parties argued that there is the need to protect family values and heterosexual marriages. On the other hand, LGBT communities rebutted that homosexuals deserve the same rights as heterosexuals. These are both important considerations which overseas jurisdictions have pondered on. In the USA case Obergefell v Hodges, Justice Anthony Kennedy acknowledged that the right to marry is fundamental as a matter of history and tradition, but opined that rights do not come from history alone. He emphasized in his judgement that rights also rise from ‘a better understanding of how constitutional imperatives define a liberty that remains urgent in our era’. Furthermore, he asserted that the right to marry is a fundamental right inherent in the liberty of the person. He argued that the nature of marriage is finding expression, intimacy, and spirituality through an enduring bond between two persons, regardless of their sexual orientation, which compels the court to hold that same-sex couples may exercise the fundamental right to marry.  

Taiwan’s court, in legalizing same-sex marriage in recent years, also wrote in its judgment that ‘disallowing same -sex marriage for the sake of safeguarding basic ethical order is a different treatment also having no apparent rational basis, thus is incompatible with the spirit and meaning of the right to equality given by its constitution’. The court also mentioned that classification based on sexual orientation is unfavourable to homosexual’s freedom of marriage, along with the factor that they lack political power due to stereotypes, heightened standards should be applied to meet the requirements of the right to equality. 

From the above, it is observed that conflicting arguments present in Hong Kong also exist in other jurisdictions. However, according to article 84 of the Basic Law, Hong Kong courts may refer to precedents of other common law jurisdictions when adjudicating cases. As an international city, Hong Kong is highly influenced by other jurisdictions. This can be shown from the government’s determination in putting an end to the longstanding traditions of Chinese customary marriage, concubinage and  kim t’iu marriage. Also, awareness of equal rights and freedoms have emerged in international events and declarations, e.g. U.N. Seminar, Declaration of Human Rights…etc. [5] Therefore, other jurisdiction’s judgments will have considerable influence on marriage equality in Hong Kong, 
 
In addition, there has been step-by-step progress concerning different rights and benefits of heterosexual couples, i.e. concerning entitlement to benefits and allowances as heterosexual couples (Leung Chun Kwok v Secretary of the Civil Service), entitlement to granting dependent visas to the spouses of employment visa holders (QT v Director of Immigration)…etc. It must be reminded that same-sex marriage could not be implemented overnight, and states must also ensure that same-sex couples have non-discriminatory rights, I.e. rights not denied on the grounds of sexuality, as married heterosexual couples during the transition period to same-sex marriage.[6] Therefore, it is my opinion that the path to marriage of equality remains hopeful. 

[1] Jasmine Siu, Bittersweet day for Hong Kong LGBT community as court rules in favour of inheritance rights between gay couple, but rejects foreign same-sex marriage bid, South China Morning Post, 2020: https://www.scmp.com/news/hong-kong/society/article/3102011/hong-kong-activist-jimmy-sham-loses-high-court-bid-recognise 
[2] [2013] 3 HKLRD 90 
[3] Kelly Loper, W v Registrar of Marriages and the Right to Equality in Hong Kong, HKLJ, 2011: https://hub.hku.hk/bitstream/10722/135137/1/content.pdf 
[4[]Kapai Puja, A Principled Approach Towards Judicial Review: lessons From W v Registrar of Marriages, HKLJ, 2011: https://hub.hku.hk/bitstream/10722/142360/1/content.pdf 
[5] Marco Wan, The Invention of Tradition: Same-Sex Marriages and its Discontent in Hong Kong, International Journal of Comparative Law, 2019: https://www.law.hku.hk/_files/ICON%20Article%20Final%20(WAN).pdf 
[6] Advisory Opinion OC-24/17, (2017), para 227