Hong Kong’s gay community suffered a fresh legal setback on Wednesday after the
Court of Appeal rejected an appeal against the city’s long-held denial of same-sex
marriage to those who have legally wed overseas.
The lesbian, gay, bisexual, and transgender activists have won multiple court
victories in recent years against the discrimination that is currently baked into Hong
But Wednesday’s ruling means any lifting of the current ban on gay marriage will
likely need to come via legislation and not the courts.
The appeal was lodged by prominent activist Jimmy Sham, who married his Hong
Kong partner in the United States in 2013, and was trying to get that partnership
legally recognised in his home city.
Sham is also a democracy campaigner and one of dozens of activists in jail awaiting
prosecution under a new national security law Beijing imposed on Hong Kong to
snuff out dissent following large protests.
Three judges ruled Wednesday that the Basic Law, Hong Kong’s mini-constitution,
“only prefers heterosexual marriage, which means that only heterosexual couples are
entitled to recognition of their foreign marriage”.
If same-sex couples married overseas were offered recognition, it would “create an
inherent incompatibility” between them and the 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
not clear if Sham will continue a legal battle which has now been rejected by two tiers
Incremental legal victories have been achieved in recent years in Hong Kong.
Rulings include a foreign lesbian couple being entitled to spousal visas and that the
husband of an immigration officer should be entitled to the same benefits as
The courts in 2004 also declared that an older age of consent for male homosexual
residents – 21 compared to 16 – was unconstitutional, but the law was only amended
a decade later.
Polls show growing numbers of Hong Kongers, especially younger residents, favour
gay rights while a growing number of international businesses 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 might bring about equality for the LGTBQ residents.
Many of those advocating for equality were involved in the city’s now crushed
democracy movement while some prominent pro-government politicians have
publicly spoken out against gay rights.