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Hong Kong Court of Appeal has ruled that same-sex marriage will not be recognized, dealing a blow to the city's LGBTQ community.
The right to marry is one of the most fundamental rights guaranteed under Hong Kong law, yet same-sex couples in the city are currently denied this right.
Jimmy Sham, a Hong Kong-based LGBTQ rights activist who married his partner in New York in 2013, decided in 2018 to mount a legal challenge to this discrimination, arguing that it was unfair that he could not enjoy the same spousal benefits as opposite-sex couples.
He argued that the current law, which does not recognize marriages between same-sex partners, not only discriminates against these couples but violates their right to equality.
Sham's lawyer, Hector Pun, cited Article 37 of the Basic Law, which states that "the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law."
But in a disappointing decision, the Court of First Instance ruled a year later that the city's mini-constitution grants access to the institution of marriage only to opposite-sex partners and that the government has no obligation to recognize same-sex unions as a valid marriage.
Sham appealed the decision.
The Hong Kong Court of Appeal has now rendered its verdict, which confirmed the lower court's decision not to recognize same-sex relationships.
The court ruled that the definition of marriage is "as a voluntary union for life of one man and one woman to the exclusion of all others."
"The Basic Law only prefers heterosexual marriage, which means that only heterosexual couples are entitled to recognition of their foreign marriage," Chief Judge of the High Court Jeremy Poon Shiu-chor wrote.
"If the same recognition is afforded to same-sex couples married overseas, they would be able to circumvent the preference enshrined in Article 37, clearly contrary to the intention of the drafters of the Basic Law."
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In its ruling, the court found that there was "difficulty or even perceived hardship" for same-sex married couples to get legal status in Hong Kong, but successful legal challenges to discriminatory policies in recent years did not mean they could bypass existing laws to "access the institution of marriage".
The court also noted that other couples who had married abroad had tried to get the same benefits as straight couples but had failed. It said that foreign same-sex marriages are still facing an "insurmountable hurdle" when it comes to equal treatment under the law.
This decision is a huge setback for the LGBTQ community in Hong Kong that have been fighting for legal recognition and equality under the law. It only further cements the inequality between same-sex spouses and straight ones.
Jerome Yau, the chief executive of Hong Kong's LGBTQ organization Pink Alliance, told RTHK that if Jimmy Sham appeals his case again, it could be taken to the city's Court of Final Appeal.
"Right now, the courts have dealt a significant blow in terms of how to advance marriage equality in the courts," he said. "At the same time, I must caution with a note that this case can be appealed to the Court of Final Appeal. If the litigant decides to file an appeal, it means it's not quite over yet."
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