Hong Kong Court Wants Framework of Rights for LGBTQ

Two weeks ago, the Court of Final Appeal in Hong Kong ordered the government to establish some form of civil partnership framework for same-sex couples and the wider LGBTQ community. It gave the government two years to establish a legislature for core rights of same sex couples. 

The court’s ruling raised hopes for Hong Kong’s LGBTQ community that has been riddled with legal challenges. The community had been raising concerns about the absence of legal recognition making them vulnerable to discrimination. 

However, the Court of Final Appeal rejected LGBTQ rights activist Jimmy Sham’s argument that gay couples in Hong Kong had the right to marry under the city’s mini constitution the Basic Law and its Rights Bill. 

The court said this right was enshrined for heterosexual partnerships. But it did acknowledge the need for same-sex couples to have access to an alternative framework to meet basic social requirements. Once the government comes up with the framework, the court will determine the minimum threshold of what goes in the final legislation and what will happen if the government fails to implement it in the two year deadline. 

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Challenges for LGBTQ in Hong Kong

However, not many are optimistic about the court’s ruling. A same-sex couple said they are not sure about the government coming up with the legislature anytime soon. The couple said they can’t stay in Hong Kong if there is no comprehensive protection. 

It should be noted that gay sex was decriminalized in Hong Kong in 1991, but same-sex couples never got legal recognition. The city has a strict legal definition of marriage (heterosexual) between a man and a woman. But in 2018, the court ruled that civil union partnerships for same-sex couples in Hong Kong would be recognized for the specific purpose of a dependent visa. Then in 2019, the court ruled that gay gay and lesbian civil servants were eligible for spousal benefits. 

Hong Kong saw similar rulings for LGBTQ in 2020 and 2021 for cohabitation, inheritance and ownership of public housing flats. But there are lots of complications in regard to joint custody of children, biological children etc. Same sex couples cannot jointly adopt. 

These complications and challenges have driven same sex couples out of Hong Kong. 

Hope on Framework of Rights for LGBTQ

Now, there are high hopes on the framework of rights for LGBTQ. Legal experts want major issues like medical decision making, separation rights to be covered under the framework. But they say its yet to be seen if the government will include parental rights and adoption rights for both gay and lesbian couples. 

Azan Marwah, a lawyer, believes the differences between the rights enjoyed under marriage and the framework for same-sex couples would bring further scrutiny. There would be lots of problems. “We’re going to have a whole new language around these two groups of people, and that language can lead to discrimination at a private level.” 

As such, the government would have to take a technocratic approach.