Same Sex Rights in Hong Kong – A Light at the end of the Tunnel?
In the very recent Court of Appeal case Sham Tsz Kit v Secretary for Justice1, the Court was asked to determine, inter alia, whether the exclusion of same-sex couples from the institution of marriage violates the right to equality under Article 25 of the Basic Law, as well as Article 22 of the Hong Kong Bill of Rights.The Court of Appeal held that “…the scheme of fundamental rights contained in…the [Hong Kong Bill of Rights], [article 25 of the Basic Law]…which are general provisions and do not stipulate a right to marry, must take account of [article 37 of the Basic Law], the dominant provision on access to marriage, and cannot be developed, even by way of a most generous interpretation, to circumvent the express preference for heterosexual marriage…”2
The world is still widely divided when it comes to same-sex couples and same-sex marriages. Although many countries have accepted, if not embraced, such relationships, it remains one of the most controversial and hotly debated topics in many others, where countless cases were brought to the Courts for determination. Hong Kong is one of them.
After innumerable parliamentary debates and legal battles, in April 2001 The Netherlands became the first country to open the door for same-sex marriage. Since then, over 20 years of social movement to promote same sex rights has resulted in more than 30 countries around the world legally recognizing same-sex marriage3. But what is the situation in Hong Kong? The recognition of marriage in Hong Kong does not extend to same-sex marriage4 and it was held by the Court of Appeal in 2022 that the Hong Kong Bill of Rights “does not impose a positive duty on the Government to provide for an alternative framework for the recognition of same-sex unions that is equivalent to marriage, such as civil partnerships”5.
As a result, same sex couples in Hong Kong face many forms of discrimination in their daily lives. Fortunately, with the perseverance of many proponents of same-sex marriage over the years, we are slowly seeing progress being made in the recognition of same-sex couple’s rights. As early as 2007, the Court of Final Appeal held that equality before the law, enshrined in article 25 of the Basic Law (“BL 25”), is a fundamental human right, and discrimination on the ground of sexual orientation was unconstitutional and thus incompatible with BL 25 and article 22 of the Hong Kong Bill of Rights (“HKBOR”) in 20076.
To better understand the movement and its progression, we can take a journey through Hong Kong’s history and the developments in it’s acceptance of same-sex couple’s rights.
Mental Health (Since 1997)
When a person’s same-sex partner becomes a mentally incapacitated person (“MIP”), he/she may apply to the Court for financial provision for him/her under the Mental Health Ordinance, Cap. 136 (“MHO”).
The Court may, with respect to the property and affairs of a MIP, secure the doing of all such things as appear necessary or expedient, including making provisions for any other person or purposes for whom or for which the MIP might be expected to provide if he was not mentally incapacitated7.
Domestic Violence (Since 2009)
The Government enacted amendments to Hong Kong’s domestic violence legislation, which were incorporated into the Domestic and Cohabitation Relationships Violence Ordinance, Cap. 189 (“DCRVO”) in 2009. The amendment stated that a person who lives together with another as a couple (whether named or not, or of same sex or opposite sex), is now protected under the DCRVO and apply to the Court for injunction(s) for protective relief8.
Electronic Health Records (2015)
The Electronic Health Record Sharing System Ordinance, Cap. 625 (“EHRSSO”) was enacted in 2015 to create a system (i.e. Electronic Health Record Sharing System (“EHRSS”)) to record the health information of patients electronically, and to allow medical practitioners, whether in private or public sectors, to share the health information of the patients9.
EHRSSO further includes provisions where a “substitute decision maker” (“SDM”) can be appointed to make decision on behalf of the patients when they are unable, whether physically or mentally, to do so in relation to EHRSS matters. The SDM may include a family member of the patients or a person residing with him/her and accompanies him/her at the relevant time10. This allows same-sex partners to act as each other’s SDM.
Immigration (2018)
In 2018, the immigration policy on dependant visas was judicially reviewed by the Court of Final Appeal in QT v Director of Immigration11. This case involved a UK national, who had entered into a same-sex civil partnership in UK, but who had been refused a dependant visa by the Immigration Department on the ground that she was “outside the existing policy” to be admitted as a spouse. The Court of Final Appeal held it was unlawful discrimination on the grounds of sexual orientation to deny a dependant visa to the civil partner12.
Since that case, same-sex spouses can apply for dependent visas and the Immigration Department now recognises same-sex marriages and other similar relationships if such status is legally and officially recognised by the local authorities of the place of celebration13.
Employees’ Benefits as Civil Servant (2019)
In 2019, upon a judicial review on the various medical and dental benefits of a civil servant’s same sex spouse by an immigration officer, the Court of Final Appeal held that the Government failed to lawfully justify the differential treatment between the same-sex and opposite-sex couples and thereby constituted unlawful discrimination14.
Following for that decision, same-sex spouses can enjoy the same medical, dental, housing and other benefits as opposite-sex spouses of civil servants in Hong Kong.
Joint Tax Assessment (2019)
In the same case, the Court of Final Appeal also held that the differential treatment between same-sex and opposite-sex marriages was not rationally connected to a legitimate aim for allowing a couple to elect corresponding joint tax assessment and not justified and the Court has declared that “husband and wife” in the Inland Revenue Ordinance, Cap. 112 shall be read “a married person and his or her spouse”15. Same-sex marriages are now regarded as a valid marriage for the purposes of IRO and same-sex spouses are entitled to elect for joint tax assessment.
Housing Policy (2020 + 2021)
The public housing policies in Hong Kong have long received criticisms16 for differential treatment between normal heterosexual couples and same sex or unmarried couples. The latter 2 categories were excluded as “spouses” and “family members” of an “ordinary family” under the Public Rental Housing Application Guide of the Housing Authority (“PRHHA”), which gave preferences to named heterosexual couples and their family members.
The constitutionality on the exclusions of same-sex couples in the PRHHA and the Home Ownership Scheme (“HOS”) was recently judicially reviewed by the Court in 2020 and 2021 where the Hon Chow JA, sitting in the Court of First Instance, declared that the exclusions were unlawful and unconstitutional for being in violation of BL 25 and HKBOR 2217. Same-sex couples can now apply as “spouses” under the PRHHA, can be added as authorised occupants of HOS flats, and can receive a transfer of ownership of HOS flats without payment of a premium. These are being appealed by the Government and awaiting decision from the Court.
Inheritance (2020)
The Court of First Instance in 2020 held that the differential treatment on probate, intestacy and inheritance between same-sex spouses and opposite-sex spouses under the Intestates’ Estate Ordinance, Cap. 73(“IEO”) and Inheritance (Provisions for Family and Dependent) Ordinance, Cap. 481 (“IPFDO”) constituted unlawful discrimination and ruled that the proper remedy will be a declaration and remedial interpretation of the expression “valid marriage”, “husband” and “wife” under the IEO and IPFDO18.
After Death Arrangements (2021)
On the other hand, in 2021 the Government acknowledged the discrepancy and clarified that same-sex widows and widowers will be treated equally by various Government departments on handling after-death arrangements on their deceased spouses, regardless of the sexual orientation of the widows or the widowers19.
Children (2021)
In the highly promising landmark case in 2021, the Court of First Instance, encouragingly exercised its inherent jurisdiction for the first time to appoint the Respondent (the same-sex partner of the natural mother) who is not a legal parent under Hong Kong laws, to be the guardian of the children and to grant joint custody, care and control to the parties20. The separated same-sex couple in this case have been together for 17 years and have two children through donor sperm insemination. The Applicant, who is the natural mother of the children, sought joint custody, care and control of the children and that the Respondent be appointed as a guardian of the children. In the same judgment, there was discussion that a person may become a natural parent, not only on genetic parenthood or gestational parenthood, but also on social and psychological parenthood21.
This is a landmark development for same-sex couple’s rights in the Hong Kong family law context, which show the attitudes of the Court in responding to the societal changes, notwithstanding the absence of legislative changes in recognition of same-sex couple’s rights.
“While many of the government’s current policies and/or statutory provisions identified in the report by Allen & Overy commissioned by the Equal Opportunities Commission entitled “The Recognition and Treatment of Relationships under Hong Kong law” (June 2019) are open to challenge on the ground of unlawful discrimination based on sexual orientation and some of them, on analysis, may be held to be unconstitutional, the applicant’s attempt…to achieve complete parity of legal recognition of foreign same-sex marriages…is too ambitious.”22
Although our Courts have acknowledged and overruled various unconstitutional or discriminatory stances towards same-sex couples, the change has been slow, piece-meal and haphazard. Each positive change has been brought on by individual Hong Kong citizens with the tenacity to persistently challenge the relevant government bodies. In doing so, they have had to bear the emotional and financial costs, public scrutiny, delays and exposure to long duration litigation, in an effort to seek equality.
Regrettably, the recognition of same-sex marriages in Hong Kong is far from imminent. To date, there is an absence of government consultation on same-sex rights and marriages despite the recommendation of the Equal Opportunities Commissionin 2015 and the recent Court of Appeal judgment in Sham Tsz Kit v Secretary for Justice23. Same-sex couples continued to be denied the basic right to marry the person they love in Hong Kong, as well as the various other rights, which heterosexual couples take for granted.
To date, same-sex couples continue to suffer from a series of “lawful” discrimination in Hong Kong, including:-
(i) the absence of right for the surviving same-sex spouse to donate his/her organs to each other without approval24;
(ii) the non-revocation of the same-sex spouse’s will after foreign same-sex marriage25;
(iii) no right to engage in any human reproductive technology treatment26;
(iv) no right to apply for a parental order for a child born out of a surrogacy arrangement even though it was judicially recognised that the lack of parental order would lead to grave injustice to the parent and more importantly, to the child as “the child is denied the social and emotional benefits of recognition of that relationship” and “the child does not have a legal reality which matches the day to day reality”27; and
(v) the difficulty for government in enforcing criminal charges, for example the statutory presumption for false trading under Securities and Futures Ordinance, Cap. 571 would not arise as false trading did not apply to same-sex spouse, civil partner or cohabitee28;
Nonetheless, it is encouraging to see the recognition of same-sex rights in Hong Kong is progressing. So, is there light at the end of the tunnel? From the various ruling of our Courts on same-sex rights in the past decade and the judicial recognition that many of the government policies are “vulnerable to challenge on the ground of unlawful discrimination”29, we remain hopeful that yes, there is light at the end of the tunnel. However, it is a long tunnel and the light at the end only shines brighter with the resilient and enduring effort of those who seek to make change.
If you need more information on same-sex rights in Hong Kong from a family law context, or wish to seek legal advice on the issue, we can help. Please feel free to contact the team at info@crb.com.hk.
This publication is general in nature and is not intend to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.
1 [2022] 4 HKLRD 368
2 Sham Tsz Kit v Secretary for Justice (supra), §39
3 Dutch Civil Code, Article 1:30
4 see W v Registrar of Marriages (2013) 16 HKCFAR 112, §165, QT v Director of Immigration (2018) 21 HKCFAR 324, §26, Leung Chun Kwong v Secretary for Civil Service [2018] 3 HKLRD 84 (CA), §§2, 7, 23 and 89 and Sham Tsz Kit v Secretary for Justice (supra), §39
5 Sham Tsz Kit v Secretary for Justice (supra), §68
6 Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, §§1, 9-11
7 MHO, section 10A(c)
8 DCRO, sections 3, 3A & 3B
9 EHRSSO, section 5(1)(b)
10 EHRSSO, section 3(2)(d)
11 (2018) 21 HKCFAR 324
12 Ibid., §109
13 see Guidebook for Entry for Residence as Dependents in Hong Kong, ID(E) 998 (1/2021)
14 Leung Chun Kwong v Secretary for Justice (2019) 22 HKCFAR 127,§§77-78, 81-82
15 Ibid., §§81-82
16 see for example Equal Opportunities Commission, Discrimination Law Review, Submissions to the Government, March 2016, §3.410.
17 Infinger v Hong Kong Housing Authority [2020] 1 HKLRD 1188,§56 and Ng Hon Lam Edgar v Hong Kong Housing Authority [2021] 3 HKLRD 427, §80, both pending judgment from the Court of Appeal
18 Ng Hon Lam Edgar v Secretary for Justice [2020] 4 HKLRD 908, §§48 and 51
19 see Press Release of Messrs. Daly & Associates, 7 October 2021, http://www.dalyassociates.net/wp-content/uploads/2021/10/2021.10.07-%E2%80%93Press-Release-for-Judgment-English.pdf
20 AA v BB (Wardship and guardianship; same-sex couple) [2021] HKFLR 266
21 Ibid., §§20-21
22 Sham Tsz Kit v Secretary for Justice [2020] 4 HKLRD 930, §26
23 [2022] 4 HKLRD 368
24 Human Organ Transplant Ordinance, Cap. 465, sections 5A(1)(a)(ii) and 5C(1)
25 Wills Ordinance, Cap. 30, section 14
26 Human Reproductive Technology Ordinance, Cap. 561, section 15
27 FH & Anor v WB & Ors [2019] HKFLR 277, §41
28 Allen &Overy LLP, The Recognition and Treatment of Relationships under Hong Kong law, June 2019, §2.19(a) & Securities & Futures Ordinance, Cap. 571, section 274
29 Sham Tsz Kit v Secretary for Justice [2020] 4 HKLRD 930, §26
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