While same sex marriage and civil unions are still not recognised in Hong Kong, the Court has passed down judgements recognising equal rights of the LGBTQ+ community, making significant progress enhancing legal protections and recognition of rights of the gender and sexual minorities.
Transgender people
In 2013, the Court of Final Appeal overturned lower court rulings and held that a transgender woman could marry her male partner upon having undergone full sex reassignment surgery in W v Registrar of Marriages (2013). The Court further ruled that to only include biological factors in the definition of one’s sex was too restrictive in the context of marriage and would result in unconstitutional infringement of a person’s right to marry enshrined in Article 38 of Basic Law and Article 19(2) of HKBOR.
There has recently been another significant victory for the trans community, with the Court of Final Appeal granting a declaration that the underlying policy requiring Female-to-male transgender persons to undergo full sex reassignment surgery as a necessary condition for amending the gender markers on their HKID cards, violated one’s right to privacy under Article 14 of HKBOR and were unconstitutional. In particular, it is not accepted by the Court that full reassignment surgery was the sole workable criterion for amending one’s HKID card.
While there is no legislation to specifically protect transgender people from discrimination, the EoC accepts complaints of discrimination by transgender people on the basis of gender and disability (especially for those who are medically diagnosed with gender identity disorder or gender dysphoria).
Same sex couples
In QT v Director of Immigration [2018] HKCFA 28, it was held that the Director of Immigration’s differential treatment of refusing to grant dependant visas to same sex spouses was not justified on policy reasons. Civil partners and same-sex spouses are now eligible for dependent visas, if the applicant meets the normal immigration requirements.
On tax benefits, a same-sex marriage would be sufficient for the purposes of the Inland Revenue Ordinance and that same-sex couples can elect for joint tax assessment or personal assessment jointly with their spouse and to claim tax allowances or deductions in respect of his or her spouse, following the judgement of the Court of Final Appeal in Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127.
In Ng Hon Lam Edgar v Secretary for Justice [2020] HKCFI 2412, the Court recognised equal rights to inheritance and ruled that the exclusion of spouses to same-sex marriage couples from legal entitlements and benefits under the Intestates Estate Ordinance and Inheritance (Provision for Family and Dependents) Ordinance, constitutes unlawful discrimination on the ground of sexual orientation. Party to a same-sex marriage is also recognised as a surviving spouse under the Coroners’ Ordinance and has equal rights in after-death arrangements for deceased partners.
When it comes to public resources, the Housing Authority’s policy preventing same-sex married couples from applying for public housing as “ordinary families was deemed unconstitutional and unlawful by the Court in Infinger Nick v The Hong Kong Housing Authority. On similar reasonings, the Court also ruled that overseas married same-sex partners can be recognised as “spouses” and “family members” under the Home Ownership Scheme (“HOS”) in Ng Hon Lam Edgar v Hong Kong Housing Authority [2021] 3 HKLRD 427 and they are eligible to be added as authorized occupants in HOS flats and considered by the Housing Authority to receive a transfer of ownership of HOS flats without the payment of a premium.
The Court also recognises equal parental rights of non-biological parents in same-sex relationship over their children in AA v. BB [2021] HKCFI 1401. Looking at the children’s welfare as the first and paramount consideration, the Court held that its power to make custody orders may extend to a non-biological parent of a child born by a former same-sex partner, granting her guardianship rights, joint custody and shared care over her children.
In NF v R, Re K [HKCFI] 2233 the High Court confirmed that a female couple who conceived children by reciprocal IVF should share parental status over the child. The Court believed that the child had been discriminated against since birth because both his parents’ status was not properly recognised. The Court used common law principles to bridge the gap and allow to mother to be formally recognised.
The Court of Final Appeal decided in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28 that the absence of providing alternative legal means to recognise same-sex relationships in Hong Kong amounts to a violation of the right to privacy enshrined by the HK Bill of Rights. The declaration from suspended for two years to allow the government to establish a suitable framework.
These decisions signify significant judicial steps in raising awareness and advancing LGBTQ+ rights.