Written by: Natalie Wong
Taiwan became the first in Asia to legalize same-sex marriage.[1] Unlike the neighbouring jurisdiction, Hong Kong has made slow, if not minimal, progress in making same-sex marriage legal. Prompted by the case of MK v Government of HKSAR,[2] the article seeks to analyse the slow progress from three angles, namely colonial legacy, government inaction and societal intolerance. It concludes that Hong Kong is far from the end goal of marriage equality.
MK v Government of HKSAR
The case concerned an applicant who wishes to marry her same-sex partner. However, it is stipulated in the Marriage Reform Ordinance and the Marriage Ordinance that a marriage is only valid between one man and one woman.[3] Consequently, MK filed an application arguing that ‘the denial of the right of same-sex couples to marry … is unconstitutional’ and ‘the failure of the government to provide a legal framework for the recognition of same-sex relationships … as an alternative to marriage is also unconstitutional’. The Court ruled against the application,[4] holding that in denying MK’s same-sex marriage and failing to provide a legal framework for the recognition of same-sex relationships, the government did not violate MK’s constitutional rights. In fact, Judge Anderson Chow went further to state that the government has no legal obligation to provide same-sex couples with the relevant rights and benefits, or substitute arrangements.[5]
Reasons for Hong Kong’s Slow Progress in Delivering Justice to Same-Sex Couples
The reasons why Hong Kong is far from getting same-sex marriage legalized are multi-faceted and are as follows:
1. British Colonial Legacy
Hong Kong was a former British colony until the handover to China in 1997. It is argued by Barrow and Chia that the lasting legacy of British colonial rule continues to have implications on the difficulty of any anti-discrimination legislation on the grounds of sexual orientation and gender identity (SOGI) to be adopted.[6] Currently, Hong Kong lacks an institutional mechanism for balancing the rights between the LGBT community and the freedom of religion. Before the handover, British authorities heavily relied on religious organizations to provide ‘educational and social services to the Hong Kong public’.[7] As such, as of 2014, 65 percent of aided schools, financed by public funds, are religiously affiliated.[8] With the power to set school missions that are religious in nature, discrimination based on sexuality continues to be a deep-rooted problem in education and employment. It is possible that future legislation prohibiting discrimination on the grounds of SOGI would be conceived as infringing upon the ‘previous practice’[9] of religious organizations guaranteed under the Hong Kong Basic Law, the city’s mini constitution, especially since the article is so vaguely drafted. It follows that outdated colonial relics should be eliminated as a first step towards marriage equality in Hong Kong.
2. Government Inaction and a Democratic Deficit
The court in MK was reluctant to declare that the government is under a ‘positive obligation to provide an alternative legal framework to same-sex couples’ since to do so would be overstepping the judiciary’s limits. In the words of the court, to decide whether or not a legal framework is required for recognizing same-sex relationships is ‘quintessentially a matter for legislation’.[10] On the other hand, under Hong Kong’s constitutional order, individual legislators must obtain the written consent of the Chief Executive, the head of the region, before introducing a bill relating to government policies.[11] Therefore, government support becomes essential ‘if one hoped to expand the scope of Hong Kong’s anti-discrimination law’.[12] In the case of Hong Kong, however, government support is clearly lacking.
Other than a lack of government support, there is also the problem in the institutional design of the Legislative Council, the city’s legislature. A motion introduced by a private member requires a majority of both the geographical constituency and the functional constituency rather than a simple majority of all legislators.[13] Under this design, when a legislator proposed a motion in 2012 urging the government to ‘launch a public consultation on enacting legislation to safeguard … the basic rights’ of the LGBT community,[14] it failed even with an overall majority support. To successfully legalize same-sex marriage, the system favouring government interests requires remarkable reform.
3. Societal Intolerance: The Special Status of Marriage
As a city with a predominantly Chinese population, LGBT rights in Hong Kong are often characterized as a ‘foreign concept that offends Chinese values’.[15] In particular, the concept of marriage is accorded a ‘special social and legal status’ in the law.[16] Judge Anderson Chow in MK referred to a statement in the famous case of Bellinger that the ‘legal recognition of marriage’ is ‘a matter of status and is not for the spouses alone to decide’ because it ‘affects society and is a question of public policy’.[17] In a case concerning same-sex couples’ rights to spousal visas, Judge Cheung CJHC contended that married people enjoy a group of ‘core rights and obligations unique to a relationship of marriage’.[18] Therefore, if the traditional and legal conception of marriage is not abolished, legalizing same-sex marriage would end up in a dead-end. Raising awareness on the issue and spreading a positive image of the LGBT community are crucial steps to be taken to correct the ingrained perception towards the LGBTQ.
Conclusion and Some Positive Developments
As grim as it seems, there is, nonetheless, a section in society that is pushing for the equal treatment of the LGBT community. Another case in 2019 demonstrates that there is some hope of Hong Kong transforming into a more LGBT-friendly community. The judicial review launched by Yeung Chu-wing, a volunteer from a local sexual minorities rights group, demands that the High Court declare seven criminal offences that targeted gay men unconstitutional.[19] Described as a ‘long-awaited victory’, the court decided in favour of Yeung, repealing four of the unconstitutional offences and revising the interpretations of the other three.[20] This case also illustrates that, in the face of government inaction, much of the responsibility to deliver justice to same-sex couples would fall on the judiciary. Despite this one-off victory, Hong Kong is still far from legalizing same-sex marriage. It is important to reiterate that simultaneous and effective reform in the dimensions mentioned above are necessary for significant progress to be made. This includes eradicating remnants from the colonial era, reforming the legislative system and more fundamentally, educating the public and cultivating new values in society.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] Lawrence Chung, ‘Taiwan lawmakers vote to legalise same-sex marriage’ (South China Morning Post, 17 May 2019) <https://www.scmp.com/news/china/society/article/3010653/taiwan-lawmakers-vote-legalise-same-sex-marriage> accessed 15 November 2020 [2] [2019] HKCFI 2518 [3] Marriage Reform Ordinance (Cap. 178), s 4; Marriage Ordinance (Cap. 181), s21(4)(a) [4] Holmes Chan, ‘Hong Kong court rules against same-sex civil partnerships’ (Hong Kong Free Press, 18 October 2019) <https://hongkongfp.com/2019/10/18/breaking-hong-kong-court-rules-sex-civil-partnerships/> accessed 15 November 2020 [5] MK (n 2) [47] [6] Amy Barrow and Joy L Chia, ‘Pride or Prejudice: Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong’ (2016) 46 Hong Kong LJ 89 [7] ibid 100 [8] Shue Sing Churk and Jianlin Chen, ‘Government-sponsored Religious Education in Hong Kong after the Catholic Diocese of Hong Kong v Secretary for Justice’ (2014) 3(2) Oxford Journal of Law and Religion 340 [9] Hong Kong Basic Law, art 141 [10] MK (n 2) [47] [11] Hong Kong Basic Law, art 74 [12] Carole J Petersen and Kelley Loper, ‘Equal Opportunities Law Reform in Hong Kong: The Impact of International Norms and Civil Society Advocacy’ in Michael Tilbury, Simon N M Young, Ludwig Ng (eds), Reforming Law Reform: Perspectives from Hong Kong and Beyond (Hong Kong University Press 2014) 181 [13] Rules of Procedure of the Legislative Council of the Hong Kong Special Administrative Region (2019), s 46(2) <https://www.legco.gov.hk/general/english/procedur/content/rop.pdf> accessed 15 November 2020 [14] Legislative Council, ‘Council meeting of 7 November 2012: Motion on “Equal rights for people of different sexual orientations”’ (25 October 2012) <https://www.legco.gov.hk/yr12-13/english/counmtg/motion/m_papers/cm1107cb3-73-e.pdf> accessed 15 November 2020 [15] Carole J Peterson, ‘International Law and the Rights of Gay Men in Former British Colonies: Comparing Hong Kong and Singapore’ (2016) 46 Hong Kong LJ 109, 111 [16] Kai Yeung Wong, ‘An Incomplete Victory: The Implications of QT v Director of Immigration for the Protection of Gay Rights in Hong Kong’ (2018) 81(5) MLR 874 [17] Bellinger v Bellinger [2001] EWCA Civ 1140 [85] [18] QT v Director of Immigration [2017] HKCA 489 [14] [19] Jasmine Siu, ‘Hong Kong government agrees laws targeting gay men are incompatible with Basic Law’ South China Morning Post (28 September 2018) <https://www.scmp.com/news/hong-kong/law-and-crime/article/2166082/hong-kong-government-agrees-laws-targeting-gay-men-are> accessed 15 November 2020 [20] Yeung Chu Wing v Secretary of Justice [2019] HKCFI 1431