05/09/2023
We’re excited about the latest Court win in HK that requires the HK gov to create a legal framework to recognise same-s*x partnerships.
One of our resident lawyers provided an explainer!
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The appellant bringing the case wanted 3 things:
1. Right to same-s*x marriage
2. If there is no right to same-s*x marriage, then a legal framework to recognise same-s*x partnerships
3. Have overseas same-s*x marriages recognised in HK
The Court dismissed 1 and 3 but agreed to 2. The Court said that the government and LegCo has 2 years to enact such a legal framework.
Right now, same s*x married couples in HK can be recognised for the purpose of spousal visas, tax, civil service benefits, and funeral rights. It is possible that LegCo only formalises the 4 areas of rights that the Court has previously granted. But it is also possible that LegCo gives more rights; and in fact, it is more likely that they would.
This is because the Court stated the right to privacy often imposes a positive obligation on the government to take action that prevents such right from being infringed.
The limited rights currently granted rests on the right to privacy. It is a right to stop the gov unnecessarily subjecting same-s*x married people to intrusive action that isn’t required for heteros*xual couples. An example of such gov interference was spousal visas. Since HK immigration didn’t accept a same-s*x marriage certificate, they requested a lot of extra evidence from same s*x couples that was deeply intrusive. Also, the couples had to litigate the matter in the courts, exposing them to public attention. The courts granting of recognition of same s*x marriage for the purpose of spousal visas was to ensure the HK gov fulfilled its obligation to a citizen’s right to privacy in this particular scenario.
The court's latest ruling is to therefore ensure LegCo and the HK Gov fulfil their obligation to a citizen's right to privacy by creating a legal framework to formalise the existing rights granted in piecemeal and review whether other scenarios need to be addressed.