Hong Kong’s queer community has endured a legal setback after the Court of Appeal dismissed a plea lodged by LGBTQ+ activist Jimmy Sham which sought to have overseas same-sex marriage recognised in the region.
Sham previously submitted an appeal in 2018 with the goal of having the marriage he entered into with his partner in the United States being recognised by the SAR government. He launched a further appeal in July of this year, with his lawyer arguing that the difference in treatment between heterosexual and homosexual couples violates the principle of equal rights for all.
The Court of First Instance also rejected the legal petition prior, with the judge calling Sham’s application wrong in principle and too ambitious.
The ruling can now only be overturned by Hong Kong’s Court of Final Appeal. It is unclear if Sham will continue pursuing an appeal for overseas same-sex marriage, which has already been rejected by two tiers of court.
The Courts ruling means that the current ban on gay marriage will need to come through legislative changes and not via the court system. The ruling was made by three judges who stated that Hong Kong’s constitution “only prefers heterosexual marriage, which means that only heterosexual couples are entitled to recognition of their foreign marriage”.
Citing Article 37 of the Basic Law, the Court said that the freedom of marriage in Hong Kong is protected by law, however the provision only extends to heterosexual couples.
Sham is also a democracy campaigner and one of dozens of activists in jail awaiting prosecution under a new national security law Beijing imposed on Hong Kong to snuff out dissent following large protests.
If same-sex couples married overseas were offered recognition, it would “create an inherent incompatibility” between them and the gay and lesbian couples who cannot legally marry in Hong Kong, the judges added.
The judgment stated, “the legal context in the present instance refers to the state of the domestic law on marriage in April 1990. Like their current forms, all the relevant statutory provisions at the time defined or referred to marriage as a voluntary union for life of one man and one woman to the exclusion of all others.”
“Same-sex marriage was only recognised legally for the first time in the world when the Netherlands provided for it in 2001. Self-evidently, the drafters of the Basic Law must have only used the term ‘marriage’ in the traditional sense of being a union between a heterosexual couple. Any suggestion otherwise is divorced from reality.”
“Whatever the position might be under the foreign law on marriage, it does not detract from the application of Article 37 in Hong Kong.”
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