HONG KONG (Agencies): Hong Kong’s highest court issued a ruling on Tuesday mandating local lawmakers to draft special legislation to officially recognize same-sex civil unions. However, the court did not extend this recognition to homosexual marriages or unions conducted abroad.
In its verdict, the court asserted that the government of the Chinese Special Administrative Region of Hong Kong had failed to meet its positive obligations under the Bill of Rights and, as a result, was obliged to establish a legal framework acknowledging same-sex couples. The court has granted lawmakers a two-year timeline to create this framework, emphasizing that it should exist independently of the institution of marriage.
The ruling emerged from a lawsuit initiated by LGBTQ rights advocate Jimmy Sham Tsz-kit in 2018. Sham argued that Hong Kong should legally acknowledge his and his husband’s marriage, which was conducted in New York five years earlier. Despite being presently incarcerated for violating Hong Kong’s national security law on charges of attempting to subvert state power, Sham contended that the refusal to recognize overseas marriages contradicted Hong Kong’s Basic Law and its Bill of Rights.
Previously, all three of Sham’s appeals grounds were dismissed by the courts in 2020 and 2022. On Tuesday, a panel of judges in Hong Kong’s Court of Final Appeals reached a unanimous decision to uphold current laws restricting marriage to heterosexual couples and not recognizing same-sex marriages performed abroad. However, the judges were divided on the issue of same-sex civil unions. Three out of five justices argued that recognizing such unions was a compelling necessity. They asserted that this recognition is vital to fulfill fundamental social needs and to provide same-sex couples with a sense of legitimacy, describing the absence of legal recognition as demeaning.
While most Asian governments do not yet recognize same-sex marriage, and some even criminalize homosexual relationships, a handful of countries and regions have been moving toward decriminalizing such unions and granting them legal status in recent years. Notably, in 2019, Taiwan, a self-governing island of China, became the first Asian jurisdiction to fully legalize same-sex marriage, and this year, it passed legislation permitting same-sex couples to legally adopt children.