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Participants in Hong Kong’s annual Pride parade march through the streets with a large rainbow flag on November 26, 2016.
Hong Kong CNN –
Hong Kong’s top court has ordered the city government to create a new framework to legally recognize the rights of same-sex couples. This is a partial victory for LGBTQ activists who have been unable to meet their demands for full marriage equality.
Five Hong Kong Court of Appeal judges made their decision on Tuesday after years of legal battles against the government’s refusal to allow gays to marry or enter into civil partnerships.
In Hong Kong, same-sex marriages and partnerships are not permitted or granted, although homosexuality has been decriminalized in the city since 1991.
Activists had hoped the court would find that opposing same-sex marriage violated equal rights protections in the city’s mini-constitution.
The judges ruled that freedom to marry was guaranteed by the mini-constitution, but that it only applied to “heterosexual marriage.”
Instead, the justices ruled in a majority ruling that an “alternative framework” was needed that grants legal recognition to same-sex couples “to provide them with a sense of legitimacy and to dispel any feeling of belonging to an inferior class of persons whose relationship does not deserve recognition.” .”
The government has two years to comply with the ruling, the court said.
A Hong Kong government spokesman said: “It is inappropriate to make any comment at this time” until the court receives submissions from the parties on next steps.
Kin Cheung/AP
Participants take part in the annual Hong Kong Pride Parade on November 17, 2018.
Activists in Hong Kong have used the courts as their main means of pushing for change over the past decade, with both the government and legislature seen as slow to keep up with other more liberal jurisdictions.
And Hong Kong judges have often sided with them, previously ruling against government lawyers and declaring that the city’s mini-constitution grants same-sex couples certain protections and equal rights that have been denied to them.
Several successful court challenges have resulted in same-sex marriages performed abroad being recognized in a few areas, such as tax returns, spousal visa applications and parental rights, although the scope remains limited.
By contrast, the case that led to Tuesday’s landmark ruling was much broader, with activists asking the city’s highest court to rule directly on the issue of same-sex marriage after multiple defeats in the lower courts.
The ruling may have far-reaching implications for Hong Kong’s gay community – and the many foreign nationals who work and live in the city – but it remains to be seen what steps the local government will now take to create laws that comply with the court’s ruling .
Jerome Yau, co-founder of Hong Kong Marriage Equality, said he was “cautiously optimistic” as he waited for more details to be announced.
“It is a great step forward and a groundbreaking decision. I understand it’s not about full marriage equality, but all in all it’s a good decision,” he said.
The fight for greater same-sex equality is an uphill battle in much of Asia, where conservative values still prevail, particularly among political elites. Currently, only Taiwan and Nepal allow same-sex relationships.
India’s Supreme Court is currently debating whether to allow same-sex marriages in the world’s most populous country.
Surveys in Hong Kong have shown growing support for gender equality among the public, particularly among younger people.
But the city government has long been conservative, reflecting official opposition to same-sex marriage and greater equality in mainland China.
Hong Kong bills itself as a global financial center that aims to attract top talent from around the world, and business leaders are among those pushing to allow same-sex unions to make the city a more attractive destination.
Felix Wong/Portal/File
Jimmy Sham Tsz-kit appears in court on May 29, 2020.
The case that led to Tuesday’s final verdict was filed in 2019 by now-jailed pro-democracy activist Jimmy Sham Tsz-kit.
Sham, in his early 30s, as leader of the Civil Human Rights Front, organized rallies attended by hundreds of thousands of people during a wave of anti-government protests in 2019.
The group was disbanded in 2021, a year after Beijing enacted a national security law that critics said stifled dissent and crushed the democracy movement. Both Hong Kong and mainland Chinese authorities have claimed the law is necessary to protect national security and “restore stability.”
Sham, who has been in custody for more than two years on subversion charges, is among dozens of prominent democracy activists accused of participating in an unofficial opposition primary in 2020 in a broader attempt to topple the then-government.
Before his imprisonment, the activist, like many pro-democracy leaders in Hong Kong, had also advocated for LGBTQ issues.
Raymond Chan Chi-chuen, the first member of Hong Kong’s Legislative Council to come out as gay, is a co-defendant in the Sham case.
There are no opposition lawmakers in the city’s parliament since Beijing overhauled its electoral system in 2021 to ensure only patriots rule.
According to court documents, Sham began a stable relationship with his partner in 2011 and married two years later in New York.
Sham argued that the Hong Kong government’s failure to allow him and other gay and lesbian couples to marry or enter into certain forms of civil unions violated their rights to equality and privacy.
In mainland China, Beijing has expanded its crackdown on LGBTQ activists and groups in recent years, with Chinese leader Xi Jinping increasingly emphasizing the ruling Communist Party’s absolute control over every aspect of society.
China’s largest and longest-running LGBTQ festival, Shanghai Pride, was canceled in 2020, and dozens of accounts related to sexual minorities were censored on Chinese social media.