11 September 2023
ILGA Asia welcomes the recent verdict delivered by the Court of Appeal (COA) in Hong Kong. The ruling, affirming legal recognition of same-sex partnerships, is a historic milestone in the advancement of LGBTIQ rights in the region.
On 5th September 2023, the COA directed the city government to establish a legal framework for the recognition of same-sex partnerships. Responding to an appeal made by pro-democracy and LGBTIQ rights activist Jimmy Sham, the Court acknowledged that same-sex unions must have access to an ‘alternative legal framework’ in order to ‘provide them with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition’ and to meet their basic social requirements.
The COA rightly noted that the lack of legal recognition of same-sex partnerships leaves couples vulnerable to arbitrary interference into their private lives by government authorities, leading to harassment and unnecessary public scrutiny. The COA has noted that the Hong Kong government’s inability to provide legal recognition to same-sex couples is a violation of their right to privacy and a private family life under Article 14 of the Hong Kong Bill of Rights. Noting that the COA has stopped short of declaring same-sex marriage a full constitutional right, ILGA Asia urges the Hong Kong government to engage with LGBTIQ civil society in the formulation of a framework that guarantees comprehensive marital and associated rights for same-sex unions in order to ensure equal citizenship and equal protection before law.
The COA has given the City government two years to submit responses and formulate a legal scheme for recognition through alternative frameworks that could include registered civil partnerships or civil unions.
This verdict serves as a testament to the progress being made through the judiciary in the Asia region, and paves the way for full marriage equality. As we commemorate this in groundbreaking decision, ILGA Asia underscores the importance of recognizing the multifaceted dimensions that lie ahead, underpinned by empirical considerations:
1. Legislative Action: The COA's verdict holds immense significance. However, it does not automatically extend the full spectrum of rights and protections enjoyed by heterosexual couples to same-sex couples. For comprehensive legal equity, legislative measures are imperative.These should encompass areas such as adoption, property rights, taxation, and healthcare and be accompanied by allied legislative action aimed at prohibiting discrimination against LGBTIQ persons in public and private spheres of life.
2. Public Awareness and Acceptance: Legislation alone does not suffice; fostering public awareness and acceptance is equally pivotal. Recent research shows that public opinion on same-sex partnerships in Hong Kong is evolving with more than 60% of citizens now in favour of same-sex marriage. Authorities must aid the efforts of activists and advocacy groups in further shifting public perspectives on LGBTIQ inclusion. ILGA Asia remains steadfast in its advocacy efforts, rooted in empirical insights, to educate the public on the significance of equal rights for LGBTIQ individuals and couples.
3. Regional Significance: This ruling is not confined to Hong Kong; its resonance extends regionally and internationally. It has the potential to serve as a catalyst for analogous legal discussions and challenges in neighboring countries. ILGA Asia, cognizant of this potential, remains committed to facilitate regional collaboration and knowledge sharing
4. Protecting LGBTIQ Activism: There is a growing body of evidence indicating an expanding crackdown on LGBTIQ movements and networks in mainland China and Hong Kong. Attacks on LGBTIQ and jailed pro-democracy activists, such as Jimmy Sham (whose petition has led to the COA ruling) must be condemned. More recently, the Beijing LGBT Centre, a member of ILGA Asia, was closed down as part of the wider suppression of LGBTIQ activism in China. This is further exemplified by the cancellation of ShanghaiPride and censorship on Chinese social media. Protecting freedom of speech and organization is paramount in order to effectively secure the rights of LGBTIQ communities in the region.
The COA's landmark ruling in Hong Kong represents a pivotal stride toward a more inclusive society. While this moment is celebrated, the empirical evidence compels us to acknowledge the arduous journey that lies ahead. ILGA Asia, fortified by empirical insights, is unwavering in its commitment to the pursuit of full LGBTIQ equality and the empirical quest to address broader issues confronting the community, both regionally and globally.
ILGA Asia is committed to spotlighting these paramount issues and advocating for the safeguarding of LGBTIQ rights across the region. Engagement with stakeholders, based on empirical insights, is pivotal to our advocacy approach. These stakeholders encompass government officials, civil society organizations, and international bodies, all of whom play an empirically validated role in advancing LGBTIQ rights.
For further inquiries, please contact:
Nadine Hassan, Senior Communications Officer (nadine@ilgaasia.org)
Ajita Banerjie, Senior Research and Policy Officer (ajita@ilgaasia.org)
About ILGA Asia
ILGA Asia, the International Lesbian, Gay, Bisexual, Trans and Intersex Association for Asia, is a regional organization committed to advancing LGBTIQ rights, inclusivity, and equality across Asia. Our work is underpinned by empirical evidence, and we collaborate extensively with member organizations, governments, and civil society to foster a more accepting and equitable society for all, irrespective of sexual orientation, gender identity, or expression. Further information is available at https://www.ilgaasia.org/.
