The Hong Kong government has proposed a system to recognise same-sex partnerships, but couples will first need to have their relationship registered outside the city. The proposal follows a landmark court ruling two years ago.
LGBTQ activists and a legal expert said on Wednesday that the new framework does not go far enough, pointing to a lack of clarity on what rights would be granted and the requirement that relationships first be recognised overseas.
In a paper submitted to the Legislative Council, the Mainland and Constitutional Affairs Bureau proposed implementing a new registration mechanism via legislation that would allow same-sex couples to apply to have their relationship recognised in the city.
The mechanism would grant same-sex couples some rights, such as those related to medical and after-death matters, but the paper expressly stated the framework would not be equivalent to marriage.
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Both individuals must be of the same sex, and at least one of them must be an adult and a Hong Kong resident. They cannot be blood-related.
Additionally, the couple must have a valid same-sex marriage, partnership or civil union registered in a jurisdiction outside Hong Kong. Neither can be married to someone else at the time.
Civil partnerships, or civil unions, are a kind of parallel institution to marriage that has been adopted in many jurisdictions where same-sex couples are not allowed to, or previously could not, marry.
The government said that in formulating the mechanism, it had taken into account Hong Kong’s current social system and traditional values.
“In reality, there are still different views in society on the legal recognition of same-sex partnerships,” the paper said. “We must carefully consider and strike a balance as appropriate to avoid causing social divisions and affecting social harmony.”
The paper also said the government must “clearly indicate that same-sex partnerships registered under the alternative framework are not equivalent to marriage”.
In 2023, the Court of Final that the government had violated the city’s Bill of Rights by failing to provide some form of legal recognition, such as civil partnerships, for same-sex couples.
It gave the government two years to draw up laws setting out the “core rights” of same-sex couples but did not outline what these might be.
The ruling followed a judicial challenge by activist Jimmy Sham Tsz-kit, who questioned whether Hong Kong’s laws relating to same-sex couples and marriage were unconstitutional.
Under the government’s new proposal, successful applicants will be provided with a certificate that can be used as legal evidence to prove they are in a registered partnership.
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Recognised couples will have rights related to medical matters such as hospital visits and the ability to access their partner’s health records, as well as those relating to after-death arrangements.
The government added it would continue to observe relevant judgments from other judicial review cases concerning same-sex couples.
Last year, the top court upheld three landmark judgments granting equal housing and inheritance rights to same-sex couples, unanimously dismissing the government’s appeal.
In Hong Kong, gay sex was decriminalised in 1991, but same-sex couples have never had legal recognition owing to a strict legal definition of marriage as being between a man and a woman.
However, numerous judicial challenges over the past decade have led to some protections.
The government said it would put forth a bill to Legco on the matter at a later date.
Jerome Yau, co-founder of Hong Kong Marriage Equality, an organisation dedicated to fair treatment for same-sex couples, described the current proposal as “very conservative and vague”.
He specifically had concerns regarding the requirement of an overseas civil partnership or marriage as a prerequisite and the absence of detailed rights once same-sex partnerships were recognised in Hong Kong.
“Even for the first step, it is not sufficient at all. The condition that couples must acquire an overseas certificate before being eligible to enter the system can raise many questions and is unfair,” Yau said.
While he understood that the current proposal was a basic framework, he expressed hope that the government would set a deadline for releasing more detailed information on the rights and responsibilities of recognised same-sex couples, particularly concerning taxation, spousal visas and public housing.
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Barrister Azan Marwah said he doubted the new framework would meet the constitutional requirement for equality and that it would not stem the tide of legal challenges.
“It imposes an unreasonable hurdle on same-sex couples and subjects them to the arbitrary rules of foreign countries, many of which will require one of the couple to be resident in their jurisdiction,” he said.
Some marital rights not covered by the proposal included matters involving children, such as adoption and surrogacy, he noted.
