Same Sex Rights
The decision by a majority of Legislative Council Members to vote down the Registration of Same-sex Partnerships Bill has been presented as some kind of triumph, but in fact sets us on the road to a slow-burning loss of credibility about our commitment to the rule of law. A total of 71 members voted against the bill earlier this month, with just 14 in favour and one abstention. The outcome was widely reported in the overseas media, most directly highlighting that this was a direct rebuttal of a ruling by Hong Kong’s top court.
The narrative since put forward by some is that despite the negative outcome the process has been a success because it shows all three branches of government – the judiciary, the executive and the legislature – have been carrying out their duties faithfully according to law. The Judiciary interpreted the relevant law independently, the executive responded appropriately by putting forward legislation to remedy the adjudged illegality, and the legislature exercised its free judgement.
This argument is pure sophistry. At the end of the day a significant minority of Hong Kong citizens have been denied certain rights that our Court of Final Appeal has ruled they should have by law. The promise by the government to examine what might be done administratively to minimise the damage to those concerned is welcome, but is insufficient. As the administration itself said in the Legco brief introducing the draft legislation:
“Legal recognition means same-sex partnerships receive formal recognition and protection under the law. Solely relying on administrative measures or authorization mechanisms is inadequate to establish a legally recognized and binding mechanism. Therefore, the Government must establish through legislation a regime for the registration of same-sex partnerships to meet the “basic social needs” of the relevant persons.”
In other words, by its own admission, the government recognises that failure to enact the bill puts us outside the law.
Now it is worth examining how we reached the present situation, because it was not by accident. Various lawsuits over the years have concerned the right of an individual to apply for a spouse immigration visa for a same sex partner, whether a same sex partner has the right to spousal civil service benefits, the right of a sex change person to marry according to their new gender, guardianship and joint custody arrangements for children and so on. Tax affairs and public housing eligibility are also in play.
Another recent case involved two women in a deep personal relationship who had a baby. The egg from one of them was fertilised with donated sperm and brought to term by the other one. When the baby boy was born, the women sought to have both partners registered as parents. The government refused. This refusal was overturned on appeal to the courts.
In all of these cases the government has taken an ultra-conservative line and upon losing in a lower court, tended to fight the case to a higher one, right up to the Court of Final Appeal if necessary. The final result in one case was that that the top court in October 2023 gave the government two years to produce a framework for recognising same sex civil partnerships in a way that gave the parties certain rights.
The now defeated bill was the government’s attempt to meet the deadline, but in an absolutely minimalist way. A same sex couple would have to enter into a binding arrangement (marriage or civil equivalent) in a jurisdiction outside Hong Kong, then apply to register here. At every stage the government stresses that what it was proposing would not equate to recognising same sex marriage in the SAR. Indeed, under the Basic Law a marriage must be between a man and a woman. Throughout the official material, the message comes through that the government didn’t really want to be undertaking these changes, it was obliged to do so by court rulings.
Taking a step back from the immediate situation, it seems to me a great pity that the whole exercise has only been triggered by adverse court rulings. There needs to be a debate in the community including within the government on how to ensure all our citizens can maintain an orderly stable life with dignity and privacy.
The minority has to accept that its members are by definition fewer in number and most rules and arrangements in society will follow the norms and preferences of the majority. At the same time, the majority must accept that it has a responsibility to protect the legitimate rights and interests, and personal dignity, of the minority even when it finds them strange or unwelcome. In other words, in a free society we should all be aiming to give everyone the means to conduct themselves in a reasonable way.
The process should start within the government by our political leaders asking themselves not “what is the minimum we have to do to satisfy those pesky judges” but rather “what is the most we can do to make as many as possible of our people feel comfortable and welcome”. If that means being criticised by social conservatives then so be it. To be clear, we should not be taking action in response to foreign critics, but because it is the right thing to do for ourselves.
The one senior politician to emerge from these events with any credit is the executive council convenor Regina Ip Lau Suk-yee who led her New People’s Party members to support the bill in the face of rabid opposition from the backwoodsmen whose dislike of homosexuality in any shape or form is well known, despite its long-established place in Chinese society. We have a legislature which is politically sound, but morally bereft.
At a time when we seek to attract foreign investors and make Hong Kong a centre for mediation and arbitration by stressing our adherence to the rule of law, we must walk the walk, not merely talk the talk. That means a new bill, and strong government leadership to secure its passage.