Hong Kong’s LGBTQ community were dealt a blow in their fight for equality after a court today denied a challenge to the government’s ban on civil partnerships for same-sex couples.
The challenge was filed last year by a lesbian and Hong Kong permanent resident identified only as MK, who argued that the ban on same-sex civil partnerships was unconstitutional.
During the hearing at the Court of First Instance in May, MK’s lawyers argued that the policy infringed on her rights to privacy and equality under the Basic Law and Bill of Rights Ordinance. One of the articles cited was Article 37 of the Basic Law, which guarantees “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”
The government’s counsel, however, argued that if civil partnerships were granted, then marriage would be “diluted and diminished” and “no longer special.”
In a lengthy judgement published today, Judge Anderson Chow said that the word “marriage” in Article 37 of the Basic Law only refers to heterosexual marriage, and that the government didn’t violate MK’s constitutional rights in denying her either same-sex marriage or a “functional equivalent,” such as civil partnerships.
Chow said that although he was “acutely aware of the fact that there are diverse and even diametrically opposed views,” he said that he was taking a “strict legal approach,” and that the court “expresses no view on the associated social, moral and/or religious issues.”
He added that recognizing same-sex relationships was “quintessentially a matter for legislation.”
“The evidence before the court is not, in my view, sufficiently strong or compelling to demonstrate that the changing or contemporary social needs and circumstances in Hong Kong are such as would require the word ‘marriage’ in Basic Law Article 37 to be read as including a marriage between two persons of the same sex,” Chow wrote.
Today’s setback could have consequences beyond MK’s case itself. Two other cases with similar aims are also before the courts, but were postponed by a judge until the issues at hand in MK’s case were ruled upon.
What’s more, some, including prominent lawyer Michael Vidler, who has himself litigated many of Hong Kong’s significant LGBT cases, had previously expressed concerns that MK’s case might be premature due to the lack of foundational precedents.
“If this challenge fails it would set a bad precedent that will take many, many years to overcome,” he said at the time.
Hong Kong doesn’t recognize same-sex marriage, but there have been some victories for the LGBT community in the courts in recent years.
Last year, a British lesbian identified as QT won the right to live and work in Hong Kong with her partner in a landmark ruling last year that recognized same-sex marriages from other jurisdictions in granting spousal visas.
In June, the city’s highest court also ruled to grant civil servants’ spousal benefits and the right to file joint tax returns to a same-sex couple who were married in New Zealand.
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