Hong Kong | Giant Leap Forward for LGBTQ rights in Hong Kong: Sham Tsz Kit v Secretary for Justice

The Hong Kong Court of Final Appeal ruled this week that the government was in breach of fundamental rights under the Hong Kong Bill of Rights by failing to provide a framework to give legal standing to same sex partnerships and gave the government two years to devise one. It has, in effect, opened the door to a civil partnership regime in Hong Kong.

The decision was not unanimous but three of the five judges in the highest court ruled in favor of activist Jimmy Sham that the current state of the law violated the right to privacy enshrined in Article 14 of the Bill of Rights. The ruling did not go so far as to recognize or legalize same sex marriages in Hong Kong.

1. Whether the exclusion of same-sex couples from the institution of marriage constitutes a violation of the right to equality enshrined in Article 22 of the Hong Kong Bill of Rights (BOT22) and Article 25 of the Basic Law of the HKSAR (BL25);

2. Whether the laws of Hong Kong (including the Marriage Ordinance, Cap 181), in so far as they do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnerships (such as civil unions or registered partnerships), constitute a violation of the right to privacy enshrined in BOR14 and/or the right to equality enshrined in BOR22 and BL25?

3. Whether the laws of Hong Kong, in so far as they do not recognize foreign same-sex marriage, constitute a violation of the right to equality enshrined in BOR22 and BL25?

None of the five judges found that the applicant had a constitutional right to a same sex marriage in Hong Kong, nor did they find that it was a violation not to recognize foreign overseas same sex marriages, but Justices Ribeiro, Fok and Keane found that Hong Kong should have some regime in place to formalize relationships to allow Hong Kong to comply with its obligations in respect of privacy under Article 14.

Article 14 provides that: “(1) no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation and (2) everyone has the right to the protection of the law against such interference or attacks.”

The history of the legal struggles which the LGBTQ community has had with securing fundamental rights demonstrates the necessity for certainty and protection. Over the past ten years, there have been piecemeal advances in a variety of aspects of life which arose as and when applications were made to secure rights including rights in respect of immigration, tax, death and housing. Positive rulings by the Court of Final Appeal on immigration, benefits and tax allowed same sex couples to settle and work in Hong Kong without fear of eviction or unfair treatment in respect of tax and spousal benefits. Further positive rulings relating to simple human rights have been made by the High Court concerning the ability to deal with one's deceased spouse or partner and the ability to live together in public housing.

As aptly put by Mr. Justice Keane: "In the case of committed, loving, stable, long-term relationships between partners of the same sex, the absence of any legal recognition means that the partners may be confronted in the ordinary course of their daily lives with a state of affairs in which their privacy, and the dignity associated with private life, are subject to arbitrary or unlawful interference.  The absence of legal recognition of their relationship is apt to disrupt and demean their private lives together in ways that constitute arbitrary interference within the meaning of BOR14."

Mr. Justice Ribeiro and Mr. Justice Fok found that, contrary to the Government's arguments that there was no positive obligation to put in place a framework to confer official recognition of the relationship between same sex couples, Article 14 did impose such an obligation under the 'right to protection of the law' in order to guarantee effective protection. They mentioned, by way of illustration, that important issues could be resolved by creating such a framework, namely recognizing the status of each partner, providing rules for mutual support and maintenance, and rules as to their separate property. Clarification could be made on how a same sex union could be dissolved and its consequences: what grounds would be required for dissolution, what jurisdiction would the court have, and would there be rules permitting property adjustments? Would there be intestate inheritance upon dissolution by death? These have been pressing issues for the LGBTQ community which can be resolved by a framework providing appropriate non-marital legal recognition for same sex couples in a committed and stable relationship, as found in other jurisdictions in the form of a civil partnership regime.