Explainer-Hong Kong court smooths path for protection for same sex couples

By Jessie Pang and Greg Torode

HONG KONG (Reuters) – Hong Kong’s top judges on Tuesday opened the path for sweeping legal protections for same sex couples but stopped short of full recognition of gay marriages after a landmark appeal by an LGBTQ activist in a ruling expected to be closely watched in Asia.

The ruling ended a five year legal battle by Jimmy Sham to get the Hong Kong government to recognise his marriage to a man in New York in 2013.

WHAT IS THE IMPACT OF THE RULING?

While the five judges on Hong Kong’s Court of Final Appeal did not grant Sham’s appeal that he had a constitutional right to a same sex marriage in Hong Kong, they did demand the government create new legal protections for same sex couples in their daily lives.

Lawyers and activists say while that it stops short of full recognition for same sex marriages, it remains highly significant, forging a path for the creation of legal protections in a whole range of areas, potentially from health care and insurance to inheritance and taxation issues.

Two of the judges noted that a lack of a legal framework had been “essentially discriminatory and demeaning to same sex couples”.

Local publisher Salena Chung, who married her wife in the U.S. in 2021, told Reuters that when she tried to buy insurance she was told to note down her wife as “friend”. Other firms told her to write down her mother as the beneficiary instead.

“I think it definitely helps people to understand same-sex couples because fear comes from misunderstanding,” Chung said.

WHAT COMES NEXT?

By suspending its finding that the government had violated Sham’s rights by its lack of an existing legal framework, the court has effectively given Hong Kong two years to make changes.

Lawyers say this could be done by local laws and regulations without complex constitutional changes to the Basic Law, the document that guides Hong Kong’s relationship with its Chinese sovereign since its return from British colonial rule in 1997. The judges ruled that the Basic Law’s marriage protections were confined to opposite sex marriage.

While critics say Hong Kong is under tighter control from Beijing, the document enshrines a high degree of autonomy for the city over local issues.

The Hong Kong government did not immediately respond to a request for comment.

The ruling comes as the Hong Kong government attempts to attract more professional talent to the Asian financial hub.

The city is also due to host Asia’s first Gay Games in November – its biggest international event since the city emerged from COVID-19 restrictions at the end of 2022 and one expected to draw over 30,000 participants and spectators.

COULD IT GO FURTHER?

The ruling is being closely watched across Asia, a largely socially conservative region where only Taiwan and Nepal allow same-sex unions.

Some activists and business lobbies say it could influence regional financial centres from Tokyo to Singapore to create more inclusive laws as a lure for global professionals that multinational corporations are seeking to hire and retain.

It remains unclear if the ruling will have any impact in mainland China, where homosexuality was decriminalised in 1997, and in 2001, removed from its list of mental illnesses. Same-sex marriage is not recognised and no official legal protections exist.

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