In September 2023, the Hong Kong Court of Final Appeal (CFA) handed down a landmark ruling in the case of Sham Tsz Kit v. Secretary for Justice. By a narrow 3-2 majority, the court decided that Article 14(2) of the Hong Kong Bill of Rights (BOR) obligates the government to create a legal framework for recognizing same-sex partnerships and to establish the rights and obligations associated with such recognition. The CFA gave the government two years to comply with this ruling. Since the judgment, some lawmakers have expressed concerns about the progress in developing this alternative framework.

This explainer will explore the past, present, and possible future of same-sex partnerships in Hong Kong.

What was at issue in Sham Tsz Kit?

Before Sham Tsz Kit, there was debate over whether the Basic Law and the Hong Kong Bill of Rights required the government to recognize same-sex marriages. Article 37 of the Basic Law (BL 37) states:

the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.

BOR 19(2) states:

the right of men and women of marriageable age to marry and to found a family shall be recognised.

In 2013, the CFA iterated that marriage is “the voluntary union for life of one man and one woman.” In 2022, the Court of Appeal upheld this definition, holding that it was in line with the precedent established by the European Court of Human Rights (ECHR) and with the text of the International Covenant on Civil and Political Rights (ICCPR). At the time, the court asserted its view that it would not have been the drafters’ intention to include homosexual couples in the freedom of marriage when drafting the Basic Law in 1990. This definition of marriage limits the government’s obligations to that of recognizing the marriage of heterosexual couples under the Basic Law and the Bill of Rights. Furthermore, the court rejected that equality under the law provided by BL 25 and BOR 22 could extend this freedom of marriage to same-sex couples under the lex specialis doctrine — the legal principle that when multiple laws apply to the same issue, the more specific of them will govern.

While the CFA generally agreed with these propositions, the majority reached a different conclusion by focusing on the government’s duties to protect the right to privacy and family as guaranteed by BOR 14. Following ECHR jurisprudence, the court was persuaded that the lack of legal recognition for same-sex unions, which prevents couples from regulating fundamental aspects of their lives, hinders their BOR 14 rights.

The government argued that recognizing same-sex unions is effectively the same as recognizing marriage, and thus, the lex specialis doctrine should prevent the government from being obliged to recognize same-sex marriage under BL 37. The court rejected this argument, clarifying that the applicant was seeking any alternative legal recognition for same-sex partnerships, not marriage by another name. The court concluded that the government is indeed obligated to provide legal recognition for same-sex unions but has discretion in tailoring the relevant legislation and determining the rights attached to such recognition.

What rights did Hong Kong’s LGBTQ+ couples enjoy before the CFA ruling?

Before Sham Tsz Kit, Hong Kong’s LGBTQ+ community fought for marital rights on essentially a case-by-case basis.

Some key cases include:

• 2018: The CFA confirmed that same-sex civil partners registered in foreign countries are entitled to dependent visas in QT v Director of Immigration;
• 2019: The CFA declared that excluding foreign-registered same-sex partners from civil servants’ spousal benefits and the right to elect for joint tax assessment amounted to sexual orientation discrimination in Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue;
• 2021: AA v BB marked the first time a Hong Kong court invoked the “welfare principle” to grant joint custody to a separated same-sex couple, even though one parent had no biological relationship with the children;
• 2023: The Court of Appeal held that the deprivation of spousal inheritance rights and the non-recognition of foreign same-sex marriages under the Home Ownership Scheme and Public Rental Housing policy due to sexual orientation is unconstitutional in Ng Hon Lam Edgar & Li Yik Ho v Secretary for Justice and in Infinger Nick v The Hong Kong Housing Authority. Additionally, the court in Ng Hon Lam Edgar further upheld that spouses in foreign same-sex marriages should be treated equally to married heterosexual couples under inheritance law.

However, the government has obtained leave to appeal these appellate court decisions. For the right of inheritance, the government argued that Hong Kong law expects married persons to fulfill their “Lifetime Marital Maintenance Duty,” which justifies differential treatment based on marital status. Regarding housing policies, the government contends that BL 36 confers on opposite-sex married couples the constitutional right to exclusively apply for Public Rental Housing units and purchase Home Ownership Scheme units as a family unit.

What is the difference between core and supplemental rights in this context? 

The government’s attempts to challenge court decisions in the post-Sham Tsz Kit era demonstrate its stance that recognizing same-sex unions should not grant the same marital rights enjoyed by heterosexual married couples. Secretary for Constitutional and Mainland Affairs Erick Tsang Kwok-wai stated that the bureau and the Department of Justice are working to determine the rights and obligations arising from recognition, distinguishing between “core rights” and “supplemental rights.”

This distinction, derived from ECHR jurisprudence and illustrated by the CFA in Sham Tsz Kit, clarifies that:

• “Core” rights relate to “the general need for legal recognition and the core protection of same-sex couples,” which are considered essential aspects of an individual’s existence and identity.
• “Supplemental” rights involve “interactions between the same-sex union and the outside world,” such as inheritance, social security, administrative procedures, and data protection.

The CFA noted that while denial of these supplemental rights might be justified through proportionality analysis, the government’s argument of unworkability was rejected because the absence of same-sex marriage already necessitates case-by-case analysis.

What is at stake if the government only provides for the core rights? 

Registered partnership (Lebenspartnerschaft) was introduced in Germany in 2001 and left out specific rights such as adoption, inheritance and income tax assessment due to the rigid constitutional definition of marriage as the “voluntary union between a man and a woman.” The parallel structure of civil partnership and marriage did not bar the institution from constitutional challenges. In 2009, the Federal Constitutional Court clarified that marriage and civil partnerships were functionally comparable and differential treatment based on sexual orientation must satisfy the high scrutiny test. Between 2009 and 2013, the court, time and again, declared differential treatment based on sexual orientation unconstitutional, removing discrimination across different laws such as survivors’ pension under an occupational pension scheme for civil service employees, inheritance tax law, real estate transfer tax, civil servants’ family benefits and income tax law.

In fact, when Taiwan’s constitutional court declared that the non-recognition of same-sex couples in the Civil Code is unconstitutional, German Federal Constitutional Court judge Susanne Baer commented that “registered partnership” brought significant burden and legal costs to the judicial system and over 300 related cases were awaiting for judgments in 2016. She therefore advised Taiwan to directly recognize same-sex marriage instead of legislating specific regulations to provide for legal recognition.

Germany finally legalized same-sex marriage in 2017 which brought equal marital rights to same-sex couples. Taiwan also became the first Asian region that legalized same-sex marriage in 2019 but reproduction technologies and joint adoption are still exclusive to heterosexual married couples.

Conclusion

The 2023 CFA ruling offers a crucial opportunity to achieve equal protection and resolve ongoing legal controversies. If the Hong Kong legislature adopts the same open-minded approach as the CFA majority, new legislation could potentially end the continuous litigations related to equality law and provide full legal protection to the LGBTQ+ community.