Between Tradition and Transformation: LGBTQ+ Equality Rights in Post-Colonial Hong Kong

Abstract

<p>On 5 September 2023, the Court of Final Appeal (CFA) of the Hong Kong Special Administrative Region (Hong Kong) delivered its landmark judgment in the case of <em>Sham Tsz Kit v Secretary for Justice</em>.<a title="">^{^[1]}</a> The CFA affirmed by a majority the need for an alternative legal framework to marriage that would recognise same-sex relationships as civil partnerships or unions. The judgment was suspended for two years to allow the Hong Kong Government (Government) time to implement the new framework.</p><p><em>Sham</em> is the latest in a series of successful cases brought against the Government, through which LGBTQ+ equality rights have been won in many areas, such as: the issuance of dependent visas,<a title="">^{^[2]}</a> the right of a transgendered person to marry in their affirmed gender,<a title="">^{^[3]}</a> and joint taxation.<a title="">^{^[4]}</a> Concurrently, a recent survey shows that a majority of Hong Kong’s population supports same-sex marriage (60%) and holds positive attitudes toward gays and lesbians (69%).<a title="">^{^[5]}</a></p><p>Notwithstanding these legal victories and growing public support, the Government in <em>Sham</em> sought to extend the two year time period, citing anticipated complexities in implementing the new legal framework. In support of its request, the Secretary cited a ‘lack of societal consensus in favour of same-sex partnership in Hong Kong’ and the need to ‘take into account and accommodate the different views of members of society’.<a title="">^{^[6]}</a> It was also reported,<a title="">^{^[7]}</a> a mere two months after <em>Sham</em>, that the Government was appealing the Court of Appeal’s decision on allocation of public housing to same-sex, foreign married couples.<a title="">^{^[8]}</a></p><p>This contradiction raises critical questions. On the one hand, judicial decisions at the Court of Final Appeal and public opinion demonstrate a trend toward acceptance and recognition of LGBTQ+ equality rights. On the other hand, the Government (and the Hong Kong Legislative Council) continue to invoke Asian traditionalism as a justification for its unrelenting opposition to LBGTQ+ equality rights’ litigation and its resistance to enacting legislation.</p><p>This paper posits that a convergence of historical, legal and socio-political factors, including religious influences and institutional structures implemented in Hong Kong’s colonial period, have shaped modern-day official attitudes toward LGBTQ+ equality rights in Hong Kong, contrasting with societal attitudes and CFA decisions. This paper builds upon existing scholarship,<a title="">^{^[9]}</a> exploring the intersection of these factors with post-colonial legal theory and LGBTQ+ equality rights in Hong Kong, incorporating analysis of recent judicial decisions (at all levels of Hong Kong courts), official actions and rhetoric, and policy trends.</p><p>The methodologies employed are a combination of historical, comparative and qualitative approaches. In order to thoroughly evaluate the hypothesis of a constructed Asian traditionalism and post-colonialism as underpinning official words and actions on LGBTQ+ equality rights in Hong Kong, the paper includes a case study of Singapore; a similarly situated Asian post-colonial jurisdiction. By combining these methodologies, the paper will provide a comprehensive and up-to-date analysis of the interplay between Hong Kong's colonial past, current legal challenges and the prospects for advancing LGBTQ+ equality rights in a post-colonial context.</p><div><br><div><p><a title="">[1]</a> [2023] HKCFA 28</p></div><div><p><a title="">[2]</a> [2018] HKCFA 28</p></div><div><p><a title="">[3]</a> [2013] HKCFA 39</p></div><div><p><a title="">[4]</a> [2019] CFA 19</p></div><div><p><a title="">[5]</a> Holning Lau, Kelley Loper & Suen Yiu-tung, ‘Support in Hong Kong for Same-sex Couples’ Rights Grew Over Ten Years (2013-2023): 60 Percent Now Support Same-Sex Marriage’ University of Hong Kong Faculty of Law Research Paper No 2023/43 (May, 2023).</p></div><div><p><a title="">[6]</a> <em>Sham Tsz Kit v Secretary for Justice</em> (unreported CACV 557/2020, 27 October 2023) [8].</p></div><div><p><a title="">[7]</a> Fiona Chow, ‘Housing Authority appeals Hong Kong court’s backing of man’s right to inherit husband’s home’ (SCMP, 8 November 2023).</p></div><div><p><a title="">[8]</a> <em>Ng Hong Lam Edgar v </em><em>Secretary for Justice</em> (unreported CACV 558/2020, 24 October 2023).</p></div><div><p><a title="">[9]</a> See: Carole J. Peterson, 'International Law and the Rights of Gay Men in Former British Colonies: Comparing Hong Kong and Singapore' (2016) 46 Hong Kong LJ 109; Amy Barrow & Joy L. Chia, 'Pride or Prejudice: Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong' (2016) 46 Hong Kong LJ 89; Dinusha Panditaratne, 'Decriminalizing Same Sex Relations in Asia: Socio-Cultural Factors Impeding Legal Reform' (2016) 31 Am U Int'l L Rev 171; Han E & O’Mahoney JC, <em>British Colonialism and the Criminalization of Homosexuality: Queens, Crime and Empire</em> (Routledge 2018); Marco Wan, ‘The invention of tradition: Same-sex marriage and its discontents in Hong Kong’ (2020) 18 I-CON 539; and Marco Wan, 'Sticking to the Past: Same-Sex Union and Original Meaning in Hong Kong' (2020) 15 NTU L Rev 153.</p><p><br></p></div></div>