Original Author: Derrick Bryson Taylor
Hong Kong’s top court ruled on Tuesday that the city’s government must establish a framework to legally recognize same-sex partnerships, delivering a partial victory to L.G.B.T.Q. activists. The ruling underscores how Asia’s conservative landscape is evolving when it comes to gay rights.
However, the five judges on Hong Kong’s Court of Final Appeal stopped short of recognizing same-sex marriage, something activists had been demanding.
In 2019, a Hong Kong court ruled against allowing same-sex unions in the city, a decision that came five months after Taiwan’s government became the first in Asia to legalize same-sex marriage.
The ruling on Tuesday said that “an alternative framework” was needed to provide those in same-sex partnerships “with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition.”
The plaintiff in the case was Jimmy Sham, a pro-democracy activist who has been fighting for the recognition of same-sex marriages registered overseas for five years, according to The Associated Press. Mr. Sham, who is gay, married his partner in New York in 2013, court documents showed.
The government has two years to develop a plan, according to the ruling.
As part of Tuesday’s ruling, the court also unanimously dismissed appeals on the constitutional right to same-sex marriage and whether the lack of recognition of foreign same-sex marriages violated rights.
The appeal on Tuesday was important on many fronts, particularly because previous judiciary review cases in Hong Kong granted rights to same-sex couples in specific domains of life, like taxation, fringe benefits and the right to a dependent visa, said Yiu-tung Suen, an associate professor of gender studies at the Chinese University of Hong Kong. “This time, the court case is about the so-called wholesale recognition of same sex relationships,” he said by phone.
Kelley Loper, the director of the Human Rights Program at the University of Hong Kong, said that the ruling was a “step forward” for L.G.B.T.Q. people in the city, but that it was too early to know how the government would implement the decision.
“I’d say it’s more than a small victory in Hong Kong,” Ms. Loper said. “I mean, I think if the court had not held in favor of Jimmy Sham, the applicant in this case, on the point about some form of legal recognition for the relationships, probably nothing at all would have been done by anybody.”
She said that there was a lot of uncertainty about how the appeal would play out, and that the court’s split decision in favor of some form of legal recognition was unusual for Hong Kong because the Court of Final Appeal typically tries to reach a consensus and write joint decisions on constitutional rights issues.
Prof. Suen contextualized the ruling in Hong Kong, saying that although some may see Asia as a socially or culturally conservative region when it comes to L.G.B.T.Q. rights, a survey of recent legal developments suggests it is actually a more progressive region.
“Some jurisdictions like Indonesia and Malaysia, they are taking a very conservative approach to L.G.B.T.+ rights, but when it comes to legal recognition of same-sex relationships, we also see jurisdictions like Taiwan and recently in Nepal, they have got more positive decisions on legal recognition of same sex relationships,” he said.
In Japan, there are a few court cases with mixed results in terms of legal recognition of same-sex relationships, he said. And in April, India’s top court began hearing arguments in a case to legalize same-sex marriage.
Activists and L.G.B.T.Q. supporters in Hong Kong, Prof. Suen said, are now likely to turn their attention to what forms the legal recognition should take and what exactly are the core rights to be protected.