Hong Kong’s gay community suffered a further legal setback on Wednesday after the Court of Appeal rejected an appeal against the city’s denial of same-sex marriage to those legally married in the foreigner
Lesbian, gay, bisexual and transgender activists have won multiple court victories in recent years against the discrimination currently enshrined in Hong Kong law.
But Wednesday’s ruling means that any lifting of the current ban on gay marriage will likely have to be done through legislation, not the courts.
The appeal was brought by prominent activist Jimmy Sham, who married his Hong Kong partner in the United States in 2013 and was seeking to have that partnership legally recognized in his hometown.
Sham is also a democracy activist and one of dozens of activists in jail awaiting trial under a new national security law Beijing imposed on Hong Kong to quell dissent after massive protests.
Three judges ruled on Wednesday that the Basic Law, Hong Kong’s mini-constitution, “only favors heterosexual marriage, which means that only heterosexual couples have the right to have their foreign marriages recognized.”
If recognition were offered to same-sex couples married overseas, it would “create an inherent incompatibility” between them and gay couples who cannot legally marry in Hong Kong, the judges added.
The ruling can now only be overturned by Hong Kong’s Court of Final Appeal, but it is unclear whether Sham will continue a legal battle that has now been rejected by two levels of court.
In recent years, incremental legal victories have been achieved in Hong Kong.
The rulings include that a foreign lesbian couple is entitled to spousal visas and that the husband of an immigration officer should be entitled to the same benefits as heterosexual employees.
Courts in 2004 also ruled that a higher age of consent for resident gay men – 21 compared to 16 – was unconstitutional, but the law was not changed until a decade later.
Polls show a growing number of Hong Kongers, especially younger residents, favor gay rights, while a growing number of international companies have backed marriage equality campaigns, arguing it will make it easier to attract talent.
But Hong Kong’s Beijing-approved leadership has shown little appetite in recent years to pass legislation that could bring about equality for LGBTQ residents.
Many of the equality advocates were involved in the city’s now crushed democracy movement, while some prominent pro-government politicians have spoken out publicly against gay rights.
The campaign for equal marriage rights has had limited success in much of Asia.
The only place in the region that has legalized gay marriage so far is Taiwan.
Singapore’s government said this week it would repeal a colonial-era law that criminalizes gay sex.
But he also said he would amend the city-state’s constitution to avoid legal challenges to the traditional definition of marriage.
AFP
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