HONG KONG — An activist detained in Hong Kong partially won his final appeal Tuesday seeking recognition for same-sex marriage registered overseas, in a landmark court ruling that is likely to have a far-reaching impact on the city’s LGBTQ+ community.
Jimmy Sham, a prominent pro-democracy activist during 2019 anti-government protests, married his husband in New York 10 years ago. Sham first asked for a judicial review in 2018 arguing that Hong Kong's laws, which don’t recognize foreign same-sex marriage, violate the constitutional right to equality. The lower courts had dismissed his challenges.
Sham has been in custody after being charged under a Beijing-imposed national security law following the massive protests. The law has been used to arrest and silence many other pro-democracy activists as part of a crackdown on dissent in the former British colony.
Judges at the city's top court, by a majority, declared in a written ruling that the government is in violation of its positive obligation to establish an alternative framework for legal recognition of same-sex partnerships, such as registered civil partnerships or civil unions.
“The absence of legal recognition of their relationship is apt to disrupt and demean their private lives together in ways that constitute arbitrary interference,” Justice Patrick Keane wrote.
But the judges unanimously dismissed Sham's appeal on other grounds related to same-sex marriage and recognition of overseas same-sex unions.
Their ruling in favor of civil unions will have strong implications for the lives of the LGBTQ+ community and the financial hub’s reputation as an inclusive place to stay and work.
Currently, Hong Kong only recognizes same-sex marriage for certain purposes such as taxation, civil service benefits and dependent visas. Many of the government’s concessions were won through legal challenges in recent years and the city has seen a growing social acceptance toward same-sex marriage.
Surveys showed 60% of the respondents showed support for same-sex marriage in 2023, up from 38% in 2013, according to a report issued by researchers at The University of Hong Kong, The Chinese University of Hong Kong and the University of North Carolina School of Law in May.
In a previous hearing, Sham's lawyer Karon Monaghan argued that the absence of same-sex marriage in Hong Kong sent a message that it's less worthy of recognition than heterosexual marriages.
Jerome Yau, a co-founder of non-governmental organization Hong Kong Marriage Equality, said the ruling was “a positive step forward." He said the judges’ decision sent a clear signal that same-sex relationships deserve some form of recognition and that it would help enhance Hong Kong’s reputation.
“This judgement, we believe, will go a long way in attracting young talent coming to Hong Kong to work and live,” he said.
Sham is the former convenor of Civil Human Rights Front, which was best known for organizing the annual protest march on the anniversary of Hong Kong’s handover to Chinese rule on July 1, 1997, for years.
The group also organized some of the biggest political protests that roiled the city in 2019 but was disbanded in 2021 under the shadow of the security law.