The Ultimate Exclusion: It's time to recognise same-sex marriage in Hong Kong

One afternoon in 2013, in the southern Chinese city of Guangzhou, Venezuelan John Gil was browsing Facebook when he came across an attractive, unfamiliar face. Gil, who was 27 years old at the time, sent the stranger a friend request, then crossed his fingers.

A few hours later, Timothy Loo accepted. At first, Loo thought they must have met through work or friends; it wasn’t until later that he realised they had never crossed paths before. “I thought it was a bit weird, but I liked that he took the initiative to write to me anyway.”

They started chatting online and, when Gil was next in Hong Kong for work, they met up for a drink. And that was that. “We had an instant connection because so many of our values and life experiences aligned,” says Loo. “We’ve been inseparable since.”

After Gil relocated to Hong Kong in 2014, the couple moved in together that same year. They married four years later, in 2018, while attending the Consumer Electronics Show in Las Vegas in the United States where same-sex marriage is legal. “Elvis was not included,” jokes Loo. After their 15-minute courthouse wedding, they celebrated with Venezuelan food and a round of mini-golf.

Marrying in Hong Kong, Loo’s birthplace, was not an option as civil partnerships or same-sex unions are not recognised. According to Section 40 of Hong Kong’s Marriage Ordinance, marriage involves “the voluntary union for life of one man and one woman to the exclusion of all others.”

In layman’s terms, this means that same-sex couples are unable to legally marry or enjoy many of the benefits that come with matrimony, such as insurance coverage, public housing benefits, child adoption, and some assisted reproductive services.

“They have been essentially granting rights in a sort of ‘salami slice’ way.”

Hong Kong-based lawyer Adam Hugill, of Hugill & Ip Solicitors, says the term “civil partnership” first appeared in the United Kingdom in 2004 as a “stepping-stone to marriage.”

In essence, it gave same-sex couples the same rights as people entering a marriage, only without the “marriage tag.” The British government passed the Civil Partnership Act in 2004, but it took another decade for same-sex marriages to be recognised.

In Hong Kong, same-sex marriage is still a long way from becoming legally recognised but public support is on the rise. According to a 2018 poll conducted by the University of Hong Kong, support jumped 12.4 per cent over a four-year period, with 50.4 per cent of respondents in favour of the idea in 2017, compared with 38 per cent in 2013.

“Instead of the Legislative Council making a big leap and changing things, they have been essentially granting rights in a sort of ‘salami slice’ way, through the Court of Final Appeal,” says Hugill.

This is because the city is home to a distinctly conservative society that’s not ready for change, says Hugill. In addition, there remains a “lack of willingness by the Legislative Council to grasp the issue.”

Slices Of Legislation

In 2015, a gay British expatriate was the first individual to challenge the existing laws in Hong Kong. Known in court as QT, she entered into a civil partnership in the UK with her spouse, SS, in 2011.

The Immigration Department approved SS’s work visa, but QT was denied a dependency visa – a relocation visa for immediate family members, such as one’s spouse and children. The Director of Immigration rejected the application on the grounds that QT is not legally the “spouse” of SS, according to the definition of marriage under Hong Kong law.

The couple challenged the decision, claiming that they had been discriminated against due to their sexual orientation. In July 2018, following a three-year battle, Hong Kong’s top court handed a landmark ruling in favour of QT. The ruling means that civil partnerships, or same-sex unions, will be recognised in Hong Kong for the specific purpose of granting dependency visas.

However, the city’s definition of marriage remains the same; in fact, following the victory, Chief Executive Carrie Lam said the government had “no plans” to amend the law and approve same-sex marriage.

A year later, in June 2019, Hong Kong set another precedent. Following a four-year legal battle, the city’s top court ruled in favour of Angus Leung, a gay immigration officer who confronted similar discrimination. Leung’s employer, the Hong Kong government, denied his husband, Scott Adams, several spousal benefits.

Even though the couple had married in New Zealand, Hong Kong law did not recognise their union. With the High Court ruling in Leung’s favour, however, Adams now has access to shared medical care, dental care, and joint tax assessments.

In September 2020, Hong Kong’s High Court ruled in favour of LGBT+ rights under two inheritance ordinances. Edgar Ng married his partner in 2017 in London, however, when the couple moved back to Hong Kong, they learned that they could not be joint owners of a flat Ng purchased under the government’s Home Ownership Scheme. Meaning, when Ng dies, his partner cannot inherit the property without a will.

After hearing the case, Justice Anderson Chow wrote in his ruling that excluding same-sex couples “cannot be justified, and constitutes unlawful discrimination” and instructed the government to reinterpret the city’s inheritance ordinances.

“Progress is slowly being made, as individuals take their specific cases to court, but there is little support,” says Loo. “A lot of work falls to the individuals who have the determination to fight the government’s discriminatory policies.”

Unsurprisingly, the legal process can be long and tiring, not to mention expensive. Hugill estimates costs ranging between HK$5 million and HK$10 million for each case.

“It is a general rule of thumb that the winning party will succeed in recovering 65 to 75 per cent of the costs from the losing party,” says Hugill. However, in many instances, plaintiffs qualify for legal aid, thereby removing much of the financial risk.

But these examples of LGBT+ rights cases are the outliers and, more often, discrimination claims are not successful – certainly not at the Court of First Instance. For example, in 2018, a Hong Kong woman sued the government for denying her the right to enter into a civil partnership with her female partner.

The plaintiff, known as MK, filed a judicial review and argued that the government’s stance breaches the city’s Basic Law (akin to a mini-constitution) and the Bill of Rights.

In October 2019, the Court of First Instance, the highest court before appeals courts which has jurisdiction over civil matters, ruled against MK, stating that the existing law does not cover “same-sex marriage.”

Hugill says civil rights cases like these will almost always go to the Court of Appeal before proceeding to the Court of Final Appeal (the highest level of Hong Kong’s High Court) because of their constitutional nature, which requires the interpretation of the Bill of Rights and the Basic Law.

There is often a limited precedent guiding the judge at the Court of First Instance level, he says, so the losing side will generally be granted the right to appeal. “While I don’t doubt the independence of the judiciary, it would take quite a bold High Court judge to make such a significant ruling against [the status quo],” says Hugill.

When an LGBT+ related case reaches the Court of Final Appeal, judges will interpret the existing language in the Bill of Rights and rule on the constitutionality of the specific situation.

Under the current laws, same-sex couples aren’t protected in discrimination cases and are denied many of the benefits that heterosexual couples enjoy.

Even if they are married overseas, same-sex couples in Hong Kong are not allowed to adopt a child, use their frozen eggs, or have a child via altruistic surrogacy (agreements which involve no monetary compensation). There are also restrictions when it comes to public housing, marital disputes and social security.

In the medical arena, individuals in same-sex unions cannot make important medical decisions on their partner’s behalf or collect their partner’s remains or ashes after they die.

“We aren’t afforded any certainty or protection by the government,” says Loo. “With the outbreak of Covid-19 we are worried that if anything was to happen to either of us, we wouldn’t be recognised as a family. For example, if one of us gets sick, the other has no [visitation rights] in hospitals.”

For Gil, a Venezuelan, there is an added worry about his passport and deportation. “He was once two weeks from being deported while he waited for his visa extension,” says Loo. “Luckily, we got it in time. But because our marriage wasn’t recognised, we had no protection or claim to any support from the government.”

The situation also affects rentals and recreation. Landlords can choose not to rent a property to same-sex couples with impunity, while some professional and leisure clubs in Hong Kong do not offer benefits to same-sex spouses.

When Loo and Gil first started looking for apartments, they did not disclose their marriage for fear of discrimination. One landlord refused their offer as they weren’t considered a ‘family’ unit.

While Loo and Gil do not have children, Loo says their friends – a married lesbian couple who are both pregnant – are facing many obstacles. Birth certificates still use only the terms “mother” and “father”, so the couple must seek legal help to acquire full custody of their children.

“PLUG definitely became an outlet for John and me to explore our values; what it means to be gay.”

Timothy Loo

‘No Plans’ To Change

Discrimination and social stigma are regular experiences for many same-sex couples in Hong Kong, but Loo and Gil are invested in progress. Loo co-founded PLUG magazine in 2013 with two colleagues to help people “connect to Hong Kong’s queer community and culture.”

They have since run events including art exhibitions, various networking events and fundraisers for LGBT+ refugees in the city. Gil later joined the team after it was up and running, though the magazine was shelved earlier this year due to social unrest and Covid-19.

“PLUG definitely became an outlet for John and me to explore our values; what it means to be gay, how we can help educate other people on queer culture and community,” says Loo. The couple also helps run Pink Season, Asia’s largest LGBT+ festival, and supports Pink Alliance, an NGO that lobbies the government for reform.

Even though a majority of Hong Kong people support LGBT+ rights based on surveys, some lawyers and activists have observed that it can be difficult to pass new laws within the Legislative Council, due in part to conservative or religious values among decision-makers.

Alfred Ip, the second name partner at Hugill & Ip, is a Hongkonger in a same-sex marriage. He says that it is “unfortunate that Hong Kong does not have a functioning legislative council to push this forward.” He continues: “It’s sad that we cannot advance in our acceptance of equality without going through all the challenges at the judiciary level.”

In the meantime, other countries are emerging as leaders in the region. In May 2019, Taiwan approved a bill to legalise same-sex marriage, making it the first country in Asia to pass same-sex marriage legislation. The historic vote was a win for the LGBT+ community, activists, and progressive lawmakers in Asia.

After the legalisation of same-sex marriage in Taiwan, the chairperson of the Equal Opportunities Commission (EOC) in Hong Kong, Ricky Chu, said on a local radio programme that it would be “impractical” to attempt the same in Hong Kong.

Chu said that the debate over legalising same-sex marriage in Hong Kong will “not yield practical results” even if there is a prolonged discussion. While Chu welcomed the development in Taiwan, he said in Hong Kong, he wanted to focus on protecting LGBT+ rights on the individual level.

“If you ask the EOC to waste resources to do something people have already said could never pass [the legislature], then why would we do it?” Chu said. “My logic is based on realistic outcomes.”

When asked if he would support a motion in the legislature calling for further study into the possibility of same-sex unions, Chu said he would not. Instead, he urged the community to “make small progress” in tackling discrimination, adding that areas like employment, public services, and access to education would be a good place to start.

In November 2018, Raymond Chan, Hong Kong’s first openly gay lawmaker filed a motion to urge the government to consider civil partnerships for same-sex couples. As expected, a number of pro-establishment lawmakers, such as Holden Chow, countered the proposal.

Chow, a member of the Democratic Alliance for the Betterment and Progress of Hong Kong (the city’s largest pro-government party), said that Hong Kong society would pay the price if it followed “Western traditions.” Meanwhile, Priscilla Leung said the government should refrain from “shaking existing marriage institutions.” Leung even submitted a proposal of her own which failed to gain enough support among lawmakers.

Meanwhile, in support of Chan, former pro-democracy lawmakers Au Nok-hin and Gary Fan filed amendments to the motion. Regina Ip, the founder and chairperson of the pro-government New People’s Party, also backed Chan’s call, urging officials to be more open to same-sex couples and respect the younger generation who are increasingly supportive of LGBT+ rights. Despite some cross-party support, the proposal was voted down 27-24 after three hours of debate.

“Hong Kong’s Chief Executive [Carrie Lam] is a devout Catholic,” Loo says. “She regularly dodges questions about LGBT+ rights and is evasive whenever progress is made, such as when the city was awarded the Gay Games 2022, making Hong Kong the first Asian city to host the event.

It would be great to see the EOC take a more confident stand in protecting LGBT+ people from discrimination, instead of remaining neutral. You can’t be neutral when it comes to discrimination.”