Hong Kong's Court of Final Appeal (HKCFA) on Tuesday ruled that the government had breached its rights under the Hong Kong Bill of Rights Ordinance by failing to set up a framework to legally recognize the rights. But the court dismissed part of an appeal to recognize same-sex marriages, including overseas unions. Photo: CFP

Hong Kong's Court of Final Appeal (HKCFA) on Tuesday ruled that the government had breached its rights under the Hong Kong Bill of Rights Ordinance by failing to set up a framework to legally recognize the rights. But the court dismissed part of an appeal to recognize same-sex marriages, including overseas unions.

This is the first time that Hong Kong's Court of Final Appeal has directly address the case of same-sex marriage.

As part of the judgment, the court made a declaration that it was unconstitutional of the government not to have alternative means for the legal recognition of same-sex relationships - such as civil unions - and that it had to provide such frameworks. 

The declaration was suspended for two years, meaning the judges ruled in a majority verdict that there was a need for "an alternative framework" given by the government within two years that guarantee legal recognition to same-sex couples "to provide them with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition".

The case that resulted in Tuesday's final ruling was brought by now-detained activist Jimmy Sham Tsz-kit. 

Sham, who was married to a same-sex partner in the US in 2013, filed a judicial review in 2018 against the Hong Kong SAR government's refusal to recognize overseas same-sex marriages, until a final appeal was granted in 2022.

Sham argued that the Hong Kong government's failure to let him and other gay and lesbian couples get married, or enter some forms of civil union partnership, had infringed upon their rights to equality and privacy.

Hong Kong does not grant same-sex marriage or unions in terms of legislation, even though homosexuality has been decriminalized in the city since 1991.

Cases involving Hong Kong's LGBT rights have often played out in the court of law, which has seen some landmark victories, including one in 2019 in which the top court sided with a gay civil servant applying for spousal benefits and tax assessment, and another two years ago when the court granted equal parental rights for same-sex partners.

Even though same-sex marriage lacks of legal recognition in Hong Kong, courts have granted those who married - or who entered civil partnerships - abroad some recognition in terms of tax, spousal visas and public housing.

Global Times