The ruling on Tuesday ended a five-year legal battle fought by jailed democracy and LGBTQ rights activist Jimmy Sham, marking the first time Hong Kong‘s Court of Final Appeal directly addressed the issue of same-sex marriage in the Asian financial hub.
Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane ruled that marriage freedoms outlined in Hong Kong‘s mini-constitution, known as the Basic Law, were confined to opposite sex marriage.
But the judges acknowledged the need same sex couples have, “for access to an alternative legal framework in order to meet basic social requirements.”
Same sex couples also needed to “have a sense of legitimacy which dispels any sense of them belonging to an inferior class of person whose committed and stable relationships are undeserving of recognition,” the judges wrote.
Lawyers and activists say the ruling could potentially force changes by the city’s government and institutions, and lead to the creation of a new legal regime to allow smoother inheritance and insurance options as well as tax allowances, among other rights.
The decision could also influence Asian financial hubs from Tokyo to Singapore to draft more inclusive laws, as a magnet for the global talent that multinational corporations from banks to technology giants are seeking to hire and retain.
The group of judges suspended a declaration that the government’s lack of an alternative legal framework had violated Mr Sham’s rights, giving the government two years to make further submissions.
Mr Sham, 36, married his partner in New York in 2013 and twice lost in lower courts after launching his bid for Hong Kong to recognise overseas same-sex marriages in 2018.
He is one of the 47 democrats charged under the Beijing-imposed national security law over an unofficial primary election held in 2020 and has been detained since March 2021.
Esther Leung, campaign manager of the Hong Kong Marriage Equality group, said after the ruling that while the decision was a “major step forward, it falls short of what is really at stake in this case: full inclusion in marriage”.
Hong Kong is due to host Asia’s first Gay Games in November - an event that could help boost the city’s lacklustre post-COVID economic recovery.