Hong Kong court rules overseas same-sex marriages can’t be recognised
The judgement ruled that marriage was defined as being for heterosexual couples.
Words: Emily Maskell; pictures: Wiki Commons (Above: Jimmy Sham & Figo Chan)
A Hong Kong court has rejected an appeal that sought to recognise overseas same-sex marriages.
LGBTQ+ activist Jimmy Sham, who married his partner in New York in 2013, has been fighting for five years to have his marriage recognised in Hong Kong.
Sham’s argument that same-sex couples should have the same marriage rights as heterosexual couples was dismissed on Wednesday (24 August) with the region’s Court of Appeal stating that Hong Kong only acknowledges heterosexual unions.
Sham’s lawyer, Hectar Pun had cited Article 37 of the Basic Law that stipulates “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law,” with the argument that the exclusion of same-sex marriage was a violation of equality.
The court dismissed this argument with its judgment defining marriage “as a voluntary union for life of one man and one woman to the exclusion of all others”.
“The drafters of the Basic Law must have only used the term ‘marriage’ in Basic Law 37 in the traditional sense of being a union between a heterosexual couple. Any suggestion otherwise is divorced from reality,” it continued.
The conclusion reached is that when Article 37 of the Basic Law was “properly interpreted,” access to the institution of marriage is only applicable to heterosexual couples: “It does not include same-sex couples,” the ruling ended.
This isn’t the first time Sham has launched a judicial review over same-sex marriage; his first was in 2018 which The Court of First Instance dismissed but Sham launched an appeal of the decision in July this year.
It’s not immediately known if Sham will appeal against Wednesday’s ruling.
Jerome Yau, the chief executive of the Hong Kong LGBTQ+ organisation Pink Alliance, told RTHK that while the decision was disappointing it was not surprising.
Yau stated: “Right now, the courts have dealt a significant blow, in terms of how to advance marriage equality in the courts.”
“At the same time, I must caution with a note that this case can be appealed to the Court of Final Appeal,” Yau adds. “If the litigant decides to file an appeal, it means it’s not quite over yet.”
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