Marriage Equality in Hong Kong: Progress and Next Steps

Pride Month aims to raise awareness around equality and celebrating our LGBTQIA+ people and communities and to raise awareness of issues that affect them and steer conversation and action towards positive change. Recently in celebration of Pride Month, ten LGBTQIA+ couples tied the knot in a Hong Kong Hotel, a remarkable occurrence for a city in which same-sex marriage is not legalised. In order to achieve legal recognition for the marriage, the ten couples legally married registering their marriages online through a process recognised by the United States.

Marriage equality, or the lack thereof, is often under the spotlight in Hong Kong and for good reason. In Hong Kong the Constitutional right to marry is enshrined in Article 37 of the Basic Law, which states that “the freedom of marriage of Hong Kong residents shall be protected by law”. However, in the case  MK v Government of HKSAR [2019] HKCFI 2518, the court upheld the HKSAR Government’s policy such that same sex couples do not have a constitutional right to marry under the Basic Law and denied the recognition of their relationships with the provision of an alternative legal framework in Hong Kong.

Despite that there is still no legal recognition for same-sex couples in Hong Kong, there has been significant strides towards marriage equality in the recent years.

1. Progress So Far

In 2023, the Hong Kong Court of Final Appeal (“CFA”) handed down its judgment in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28. This judgment was widely regarded as a partial victory for LGBTQI+ rights in Hong Kong. While the CFA still declined to recognise same-sex marriages, it acknowledged the necessity of establishing an alternative legal framework to address the basic social requirements of same-sex partnerships.

Effectively, the CFA ordered the HKSAR Government to establish a legal framework that would recognise same-sex partnerships and address crucial rights such as access to hospitals, inheritance, and tax benefits. This development signifies a positive step forward in ensuring equal treatment and protection for same-sex couples in Hong Kong.

Furthermore, noteworthy progress was made as the majority of the CFA declared that the absence of an alternative legal framework for the recognition of same-sex partnerships constitutes a violation of the HKSAR Government’s positive duty under Article 14 of the Hong Kong Bill of Rights. 

2. What’s Next?

While progress is encouraging, there’s more work to be done. Hong Kong Marriage Equality, an NGO group, considers that the path to achieving marriage for same sex couples in Hong Kong to be three-pronged: –

• Legislative Empowerment Advocate for legal reforms and empower legislators and policymakers to prioritise enacting change. Marriage equality should be placed high on their agenda to ensure that the rights and recognition of LGBTQIA+  individuals are fully protected under the law. This includes efforts to amend existing legislation and enact new laws that support equal rights for all couples, regardless of their sexual orientation.
• Community Engagement: Mobilise the LGBTQIA+ community and allies to create a strong and unified voice. Encourage open dialogues and discussions across different districts and communities in Hong Kong to foster understanding and empathy. It is essential to engage with stakeholders who may have previously considered the topic of marriage equality as taboo or unfamiliar. By educating and raising awareness, we can challenge misconceptions and promote inclusivity.

• Broaden Support: Build a coalition of key constituencies within society to amplify the call for marriage equality. Voices from various sectors such as business, education, healthcare, and beyond can play a vital role in advocating for equal rights. Engaging these stakeholders, including influential individuals and organizations, will help create a broader support network that can effectively push for legislative changes and societal acceptance.

According to the latest poll by the Chinese University of Hong Kong, 49% of the respondents supported marriage equality. While this is an improvement and a step forward for LGBTQIA+  communities, it takes everyone in society to pay more attention and to do much more work in order to create a fully inclusive and equal rights platform for the LGBTQIA+ community.

3. Celebrating Pride

We have witnessed remarkable progress in both legal reforms and shifts in social attitudes towards LGBTQIA+  people in Hong Kong. However, it is evident that legislation and protections still lag behind global norms for the LGBTQIA+ community. While the recent positive developments in legal cases are encouraging, the specific legal protections for same-sex partnerships remain uncertain.

Moving forward, it is crucial to focus on raising legal awareness about the LGBTQIA+  community and advocating for legal reforms. By fostering understanding and promoting inclusivity, we can strive towards a more equitable society that provides equal rights and protections to all individuals, regardless of their sexual or gender orientation. Continued efforts and advocacy are essential to ensure that Hong Kong progresses towards a future where LGBTQIA+  individuals enjoy the same rights and opportunities as their heterosexual counterparts.

Joanne Brown and Kathy Siu

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 28 June 2024.