Hong Kong court rejects gay marriage appeal

HONG KONG • Hong Kong's gay community suffered a fresh legal setback yesterday after the second-highest court rejected an appeal against the city's long-held denial of same-sex marriage to those who have legally wed overseas.

Lesbian, gay, bisexual, transgender and queer (LGBTQ) activists have won multiple court victories in recent years.

But yesterday's ruling by the Court of Appeal means any lifting of the current ban on gay marriage will likely need to come via legislation and not the courts.

The appeal was lodged by prominent activist Jimmy Sham, who married his Hong Kong partner in the United States in 2013, and is trying to have that partnership legally recognised in his home city.

Mr Sham is also a democracy campaigner and one of dozens of activists in jail awaiting prosecution under a new national security law Beijing imposed on Hong Kong to snuff out dissent after large protests.

Three judges ruled that the Basic Law, Hong Kong's mini-Constitution, "only prefers heterosexual marriage, which means that only heterosexual couples are entitled to recognition of their foreign marriage". If same-sex couples married overseas were offered recognition, it would "create an inherent incompatibility" between them and the gay couples who cannot legally marry in Hong Kong, the judges added.

The ruling can now be overturned only by Hong Kong's Court of Final Appeal, but it is not clear if Mr Sham will continue a legal battle which has now been rejected by two tiers of court.

Incremental legal victories have been achieved in recent years in Hong Kong. Rulings include a foreign lesbian couple being entitled to spousal visas and that the husband of an immigration officer should be entitled to the same benefits as heterosexual employees.

The courts in 2004 also declared that an older age of consent for male homosexual residents - 21 compared with 16 - was unconstitutional, but the law was amended only a decade later.

Polls show growing numbers of Hong Kongers, especially younger residents, favour gay rights while a growing number of international businesses have backed marriage equality campaigns, arguing it will make it easier to attract talent.

But Hong Kong's Beijing-approved leadership has shown little appetite in recent years to pass legislation that might bring about equality for LGBTQ residents.

Many of those advocating for equality were involved in the city's now crushed democracy movement while some prominent pro-government politicians have publicly spoken out against gay rights.

The campaign for equal marriage rights has had limited success across much of Asia.

The only place in the region that has legalised gay marriage so far is Taiwan.

Singapore's government this week said it would repeal a colonial-era law criminalising gay sex.

In Vietnam, the government has said that being gay, bisexual or transgender is not a disease, in a major shift in LGBTQ rights in the country.

The Ministry of Health has asked health workers to treat LGBTQ people with respect, and in an announcement on Aug 3 said LGBTQ "is entirely not an illness" so it "cannot be 'cured' nor need to be 'cured' and cannot be converted in any way".

The announcement was sent to provincial and municipal health departments and based on information that healthcare providers were offering "cures" for homosexuality.

AGENCE FRANCE-PRESSE