From eliminating discrimination on the ground of sexual orientation to same-sex marriage: the Hong Kong experience

Abstract

In recognition of Professor Andrew Byrnes’ contribution to promoting gender equality in Hong Kong, this article traces the development of equal treatment of LGBT in Hong Kong. This development is entirely court-led, and the LGBT community has been highly strategic in launching legal attacks. This approach has successfully extended the protection of LGBT’s rights in the last two decades, and the highest court in Hong Kong will soon have to confront the constitutionality of same-sex marriage. In MK v Government of the HKSAR, the Court of First Instance held against the recognition of same-sex marriage or an alternative form of civil partnership. In reviewing this important decision, this article argues that while there are powerful arguments in favour of recognising same-sex marriage, the issue is ultimately one of separation of powers. Given that marriage is deeply rooted in the community’s social and cultural values, this article considers that there is little prospect of successfully arguing for same-sex marriage in Hong Kong in the absence of sufficient social consensus, and that the best bet for Hong Kong is to argue for the recognition of an alternative form of civil partnership. Social consensus should be given less weight in this regard, as civil partnership is to exist alongside and not to replace traditional marriage. There is no evidence that civil partnership will threaten traditional marriage, as Hong Kong used to recognise the co-existence of different forms of marriage for a long time.