The fight for equality in Hong Kong faces a major test today as the city’s highest court considers whether to overturn a ban on same-sex marriage.
The hearing — taking place on the 54th anniversary of New York’s Stonewall uprising that launched the modern gay rights movement — comes at a time when local support for LGBTQ rights is at historic highs. Courts have also issued a series of pro-equality decisions in recent years.
Not recognizing same-sex marriage violates equality and privacy provisions of Hong Kong laws as well as the principle of recognizing foreign marriages, Karon Monaghan, attorney for the plaintiff, told a panel of five judges at the Court of Final Appeal.
The ban also sends a message to the community at large that same-sex relationships are less worthy and undeserving under the law, she said.
A lawyer representing the government had yet to speak before the court adjourned the hearing for lunch.
The hearing follows earlier rulings by the court in favor of LGBTQ rights. In February, the CFA struck down a rule requiring transgender people to undergo surgery before correcting the designated gender on their government identification cards.
Because of a 2018 CFA decision, Hong Kong offers visas to same-sex spouses of expatriate workers married overseas, but the city is an equality laggard compared with Europe, Australia and the Americas. Taiwan remains the only place in Asia where same-sex couples can get married.
“Progress is happening, piece by piece,” said Azan Marwah, a lawyer who has successfully argued on behalf of LGBTQ challengers in lower-court cases. The court victories are chipping away at the marriage-equality ban, he added. “When we get those other key rights, it will be a lot harder for the government to say there shouldn’t be equal status.”
The latest legal challenge also comes amid a renewed push for LGBTQ rights across the region. India’s Supreme Court will likely rule this year in a marriage equality case, and Japan’s may address the issue after two courts ruled same-sex-marriage bans were unconstitutional. A South Korean court in February recognized the rights of same-sex couples to receive health insurance benefits.
In Thailand, Pita Limjaroenrat, leader of the coalition that won the most seats in May elections, has pledged to support legislation protecting marriage equality and transgender rights.
While Hong Kong’s government hasn’t made LGBTQ rights a priority, people and businesses are showing greater interest in promoting equality. Support for same-sex marriage is at 60%, up from 38% in 2013, according to a May report from researchers at the University of Hong Kong, the Chinese University of Hong Kong and the University of North Carolina. The researchers found about 70% support for legislation against discrimination based on sexual orientation.
Meanwhile, more than 100 employers, including local companies such as Cathay Pacific Airways Ltd. as well as multinationals like Goldman Sachs Group Inc. and McKinsey & Co. support a call for recognition of same-sex relationships by Equal Love Hong Kong, a coalition of business and community organizations. Bloomberg LP is also a supporter.
It’s unclear what impact popular opinion and corporate support can have in Hong Kong, where there are few powerful voices for LGBTQ rights left in government or the legislature. Many pro-equality politicians lost their positions after the passage of a national security law in 2020. Activist Jimmy Sham, who filed the marriage case, pleaded guilty to violating the security law by participating in an unofficial 2020 primary election the government said was part of a subversive plot.
Sham, who has been in custody since 2021, attended this morning’s hearing, wearing a black T-shirt with the words “House of Yes” in red.
Hong Kong’s government has appealed court rulings supporting challenges to inheritance law and housing policy, and hasn’t yet changed its requirement that transgender people complete what it calls sex reassignment surgery before changing their ID cards.
The government “has been actively reviewing the conditions for amendment of the HKID gender markers having regard to the associated policy issues, including necessary consultation with the medical professionals and related research work,” the Immigration Department said in an emailed statement. “We strive to complete the review within a reasonable period,” it added.
Still, the court rulings are encouraging, said Henry Li, 37, the challenger in the housing and inheritance cases. “It’s good that we have an impartial and independent judicial system, where the court is more open to consider equality claims,” said Li, whose late husband, Edgar Ng, initiated the lawsuits. Li became the plaintiff after Ng died by suicide in 2020.
Litigation “seems to be the only recourse for equality,” Li added. “The only thing we can do is sue.”
In a sign of obstacles that remain, the marriage appeal to the CFA follows a lower court’s powerfully worded rejection last August, when judges said the drafters of the Basic Law, Hong Kong’s mini constitution, recognized only heterosexual marriage.
“Any suggestion otherwise is divorced from reality,” the judges wrote, calling the marriage provision an “insurmountable hurdle.”
The CFA will likely take several months before announcing whether it agrees, but Marwah is hopeful it won’t follow what he called the lower court’s “too blinkered” historical approach, which he said didn’t properly consider other provisions in the Basic Law ensuring equal treatment.
“Unless you can provide some justification for inequality, there ought to be equality,” said Marwah. “There shouldn’t be the onus on the victims of discrimination to launch 1,000 different cases to obtain equality.”
--With assistance from Shirley Zhao.
(Updates with details from the court hearing after the second paragraph)