Jornal Do Brasilia - Hong Kong's top court rules to recognise same-sex partnerships

LGBTQ activists in the former British colony have won piecemeal victories in court over the past decade that struck down discriminatory government policies on visas, taxes and housing benefits.

But the case brought by jailed pro-democracy activist Jimmy Sham is the first time Hong Kong's Court of Final Appeal has directly addressed the issue of same-sex marriage.

The court ruled that the Hong Kong government violated its "obligation... to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions)".

It gave authorities two years to comply with the ruling, leaving the specifics of the framework to be decided by the government and the opposition-free legislature.

The court stopped short of full-throated support for same-sex marriage, siding instead with lower courts in saying that, under Hong Kong's Basic Law, "the constitutional freedom of marriage... is confined to opposite-sex marriage".

Hong Kong has enjoyed a semi-autonomous status that allows it more freedoms than in the mainland since the city was handed back to China in 1997 and its legal system is governed under a common law system.

Activists and human rights lawyers said the "partial" win could pave the way for more protections for same-sex couples but remained wary of what sort of framework would emerge from Hong Kong's Beijing-approved legislature.

"This ruling is an important step forward... but there is still a long road ahead," said Amnesty International, calling on the government not to delay implementation.

Travas Chow said at a news conference held by Hong Kong Marriage Equality after the verdict that it was "a pleasant surprise" for him and his partner of seven years.

"In the past, I wondered what our future would be like," Chow said.

"After the ruling today, we began to seriously consider that we could stay in Hong Kong for the long-term.... if the important moments of our lives can be accomplished in Hong Kong, this should be celebrated by every Hong Konger."

- 'Compellingly advocated' -

Hong Kong has seen increasing support for same-sex marriage -- jumping to 60 percent according to a recent poll -- a stark contrast to the mainland, where stigma is widespread and the LGBTQ community has alleged a growing crackdown on their already-limited space.

The challenge launched by Sham, 36, began in 2018. He is currently behind bars facing trial on national security charges unrelated to LGBTQ rights and was not brought to court Tuesday.

Sham, whose marriage to his partner was registered in New York nearly a decade ago, had argued that the city's ban on same-sex marriage violated his right to equality.

The lack of a policy alternative, such as civil unions, does the same and also breaches his right to privacy, he said.

The judges said Sham had "compellingly advocated" for an alternative framework for legal recognition of his relationship.

Citing issues such as making medical decisions if a partner is ill or dividing assets at a relationship's end, the judges said "such needs must be addressed in Hong Kong where no means of legal recognition for same-sex relationships presently exists".

The ruling added that the framework must dispel "any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition".

- 'Partial but important victory' -

While calling it "a partial but very important victory", gender studies scholar Suen Yiu-tung said he was concerned the government "may interpret such rights pretty narrowly".

"They may take forms that will sometimes surprise people."

LGBTQ activist Brian Leung had "complicated" feelings about the verdict but said, thanks to the court's two-year timeline, "the government would have to produce some results".

"Locally, the civil society has been shattered. But can the voices of the LGBTQ community be heard through legislators?" Leung said.

Rights advocacy has partly gone underground since Beijing imposed a national security law on Hong Kong in 2020, following huge and sometimes violent pro-democracy protests in the finance hub.

While some international businesses in Hong Kong have backed marriage equality campaigns, crediting it as a way to attract talent, the city's Beijing-approved leadership has shown little appetite for passing laws.

In Asia, only Nepal and Taiwan recognise same-sex marriage while in South Korea lawmakers have recently introduced legislation that would recognise same-sex partnerships.

M. Oliveira--JDB