It’s the best of times, and yet the worst of times.
Momentum for marriage equality in Hong Kong has never been stronger. The coalition of businesses, organisations, community groups, and individuals supporting the legal recognition of, and equal benefits for, same-sex relationships is larger and more unified than ever. A 2018 HKU public opinion poll showed that a majority of Hong Kong people favor same-sex marriage, with 78 percent of respondents agreeing that same-sex couples should have some or all of the rights enjoyed by different-sex couples. In two recent landmark decisions, the Court of Final Appeal affirmed the right of same-sex couples married abroad to be accorded the same rights and benefits in respect of immigration, taxes and medical insurance benefits, as those of opposite-sex couples (see Court of Final Appeal decisions in the QT case (http://www.hk-lawyer.org/content/law-transition-qt-v-director-immigratio...) and Leung Chun Kwong v Secretary for Civil Service). And our Asia Pacific neighbors, including Taiwan and Australia, have already achieved marriage equality, paving the way for other Asian jurisdictions to follow suit.
Yet, the path to marriage equality in Hong Kong remains murky at best. Neither the legislature nor the courts have shown any interest in lifting the ban on same-sex marriage. The Legislative Council, even before it became preoccupied with recent political matters, has been unwilling to take up the issue even for consultation. And the first-ever direct judicial challenges to the ban on same-sex marriage in Hong Kong has suffered a disappointing initial blow in the lower courts (see Court of First Instance ruling in the MK v Government of HKSAR case and the Court’s stay on the TF/STK case).
The case for marriage equality in Hong Kong is clear and undeniable, but it bears repeating:
- The right to marriage is a fundamental human right that should be made available to everyone.
- Hundreds of laws and policies are potentially impacted by an individual’s relationship status, and hence, a denial of the right to marry denies individuals equal treatment under the law (see report (http://www.hk-lawyer.org/content/recognition-and-treatment-relationships...) issued in June 2019 by Allen & Overy, and commissioned by the Equal Opportunities Commission, identifying at least 21 separate areas of Hong Kong law and government policy that are impacted by one’s relationship status; the work on the report was commended in a rare joint press statement issued by HKGALA and the Hong Kong LGBT+ Interbank Forum in September 2019.)
- Opening up marriage to same-sex couples strengthens, not weakens, the institution of marriage by helping to ensure it remains an essential building block of society.
- Hong Kong’s position as an international financial hub would be further strengthened by promoting LGBT+ rights. As the proposed intervention by the coalition of 31 companies in the QT case showed, efforts to recruit and retain the best talent are hindered by the lack of same-sex partnership rights and other legal protections for LGBT+ people.
- Discriminatory laws stigmatise LGBT+ people, and perpetuate the stigma of LGBT+ people being ‘less than’ their straight counterparts. This stigma is particularly damaging to children of LGBT+ parents.
- Religious views and social/cultural values are not legitimate justifications for discriminating against a minority group and denying one’s fundamental human rights.
- There is no such thing as “traditional” marriage as the institution of marriage has evolved over time.
- The love between two people of the same sex is no different at its core from that between different-sex couples.
In summary, marriage equality is good for individuals, good for society, good for business, and good for Hong Kong.
As history has shown, major legal and social advancement has a better chance of succeeding when there is a focused, mobilised, and coordinated effort by a critical mass of people who are brave enough to speak out. As stewards of justice and fairness, lawyers have a particularly important role to play, especially given that change is more likely to come by way of the courts rather than by legislation.
There is absolutely no doubt that marriage equality will be achieved in Hong Kong. The only question is when. Hopefully, it will be sooner rather than later so that those who are currently in loving, committed same-sex relationships in Hong Kong, as well as those who are aspiring to be, may have the opportunity to have their relationship recognised and treated equally under the law.