On July 23, the Hong Kong Legislative Council established a bill committee on the Registration of Same-sex Partnerships Bill. Secretary for Constitutional and Mainland Affairs Bureau Eric Tsang Kwok-wai submitted to the legislature that the government is dedicated to respecting the judiciary and fulfilling its Bill of Rights obligations.
At the same time, Tsang also contended that the bill presents the government’s determination in protecting heterosexual marriages. These developments stem from the city’s top court ruling in September 2023, requiring the government to recognize same-sex relationships.
This article provides updates on the legislative progress and advocates for the government to review its proposed framework to better protect same-sex couples.
What did the court rule in Sham Tsz Kit?
With his marriage registered in New York since 2013, the appellant Sham Tsz Kit challenged the failure to recognize his same-sex relationship by the Hong Kong government as unconstitutional. In a narrow 3-2 majority, the court agreed that Article 14 of the Hong Kong Bill of Rights (BOR14) imposes on the government a positive obligation to protect its citizens’ rights to privacy. The court required the government to establish an alternative framework for legal recognition of same-sex partnerships and the rights associated with such recognition.
The majority’s reasoning is two-fold. First, the right to privacy under BOR14 encompasses the right to establish relationships with others. This includes the right to regulate fundamental aspects of life as a couple without interference. Second, depriving same sex couples of the legal recognition available to heterosexual couples is “potentially demeaning.” As Strasbourg jurisprudence pointed out, requiring same-sex couples to resort to litigation for their basic needs as a couple is a hindrance to the right to private and family life. In addition to the European Court of Human Rights, the majority also considers Article 17 of the International Covenant on Civil and Political Rights. According to the UN Human Rights Committee, the protection against arbitrary or unlawful interference with a person’s privacy requires the government to adopt legislative measures to protect this right.
Simply put, the government must provide legal recognition to private unions, same-sex and different-sex, to protect the right to private and family life. The recognition allows citizens to regulate their family lives without the need for litigation. To fulfill this obligation, the government proposed a recognition system in early July.
What are the conditions to apply for registration?
Apart from other general conditions regarding formal and essential validity, the registration mechanism requires a valid same-sex marriage, civil partnership or union registered in a place outside Hong Kong. Owing to the “traditional values” and “differing views” on same-sex partnerships, the government decides to recognize only committed and stable same-sex partnerships so as to maintain social harmony and prevent abuses.
As the proposed framework states, “the legal recognition granted under the registration mechanism is based on a same-sex relationship that has been committed and stable.” The government drew support from paragraph 129 of the majority’s ruling:
As we have noted, under Hong Kong law, same-sex couples do not have access to the institution of marriage. However, the need for couples such as the appellant and his partner, in committed, stable relationships, to have access to an alternative framework for legal recognition of their relationship has been compellingly made for two main reasons.
Considering the landscape of the city’s LGBTQ+ advocacy, it is unsurprising that the proposed framework remains accessible only to foreign-registered same-sex partnerships. After the judiciary confirmed that same-sex couples do not enjoy the right to marriage under Article 37 of the Basic Law, litigants – including Sham Tsz Kit – were mostly foreign-registered same-sex partners challenging the differential treatments between heterosexual and homosexual married couples. Therefore, whilst the right to marriage remains exclusive to heterosexual couples, foreign-registered same-sex partners enjoy limited marital rights before the Sham Tsz Kit ruling, each earned through prolonged litigation. However, local same-sex couples do not enjoy these rights since their relationships are not recognized by the government.
Arguably, the government misconstrued the ruling and took paragraph 129 out of context. In the immediate paragraph that follows, the majority wrote, “recognition is necessary to meet basic social needs similar to those experienced by different-sex couples in stable relationships.” As can be seen, the court did not intend to qualify the right to recognition by requiring same-sex couples to prove commitment and stability. The court accepted from the European jurisprudence that there is no difference in the capabilities of entering into stable committed relationships between same-sex and different-sex couples. Therefore, this additional requirement is puzzling because matrimonial law does not require heterosexual couples to prove their stability and commitment through a foreign marriage certificate.
In the event that the majority intended to support such qualification, barring same-sex couples without a foreign marriage certificate from registration remains an interference with the right to private and family life. This interference must be proportionate and rationally connected to a legitimate aim under Hong Kong constitutional law. Insofar as marriage remains exclusive to heterosexual couples, the rational connection between the interference and the legitimate aim is unclear. The government must demonstrate how allowing only foreign-registered same-sex partners to register their relationships preserves “traditional values” and “maintains social harmony” as the stated aims of the proposed framework.
What are the rights associated with the recognition?
In addition to the right to registration and revocation, registered same-sex partners can also handle medical-related matters and after-death arrangements as legally recognized partners. In relation to medical-related matters, a same-sex partner can now visit an in-patient partner, obtain medical information and participate in medical decisions, and undergo organ transplant surgeries between living persons. As for after-death arrangements, same-sex partners can now obtain related permits to make funeral and cremation arrangements.
Prior to this framework, foreign-registered same-sex couples enjoy certain rights, including applying for dependent visas, civil servants’ spousal benefits, joint tax assessment, right to inheritance and applying for public housing. The government remains committed to protecting these established rights following the implementation of the framework.
Providing limited marital rights to registered same-sex partners leads to recurring and endless litigations. As the majority explicitly wrote in paragraphs 135 and 187, litigations surrounding marital rights require the court to assess discrimination on a case-by-case basis and are unsatisfactory. With same-sex partnership registration in place, the court will now consider whether the differential treatment between registered same-sex partners and married heterosexual couples is justified in a discrimination analysis.
Indeed, LGBTQ+ litigations continue between the Sham Tsz Kit ruling and now. In 2024, the top court heard and dismissed the government’s appeal in relation to public housing policies and inheritance laws. In June 2025, a lesbian couple, who underwent reciprocal in vitro fertilization in South Africa, applied for the legal recognition of parentage between the gestational mother and the child. A previous JURIST’s explainer elaborated on how Taiwan learnt from Germany’s experience and avoided endless litigations by legalizing same-sex marriage in 2019. With similar cultural and social backgrounds, Taiwan remains a referential precedent to follow.
What is the stance of the Legislature?
The future of same-sex partners in Hong Kong remains uncertain. At a press conference on July 15, Chief Executive John Lee Ka-chiu reiterated that violating the top court’s ruling is a violation of the rule of law. However, he also indicated that the executive branch would respect the law-making power of the legislature. On the other hand, the legislature has demonstrated a consistent unwillingness towards all similar laws ever since the legislature shut down a motion to study the formulation of same-sex unions in 2018. In February of this year, the Legislature passed Julius Ho’s motion to “protect” heterosexual marriage. Multiple parties also made their opposition clear in the bill committee’s July 23 meeting, with the New People’s Party being the only supporting party. For instance, legislator Holden Chow Ho-ding proposed that the needs of same-sex partners can be dealt with by individual measures without “subverting” traditional family values and heterosexual marriages. Similarly, legislator Priscilla Leung previously raised her concern that the proposed framework would open the door to more controversies that challenge traditional family values. In particular, she contends that Western countries, such as the United States, the United Kingdom and European Union member states, are “reversing their progress” on related legislation and Hong Kong should not have gone down the same road.
What is the attitude of the international community relating to same-sex unions?
Among European states and territories, British Bermuda remains the only territory that has repealed same-sex marriage in 2018, but with a domestic partnership system currently in place that recognizes homosexual relationships. Contrarily, three EU member states – Estonia, Greece and Liechtenstein – recognized same-sex marriage between 2023 and 2025, totaling 20 out of 27 EU countries recognizing same-sex marriages or partnerships. As for the United Kingdom, 75 percent of the public supports same-sex marriage, with a gradually increasing trend shown since 2013, compared to the time when the Marriage (Same Sex Couples) Act 2013 first received royal assent, with a supporting rate of only 57 percent at the time.
Leung’s statement stands somewhat true only in the United States. This year, Republican lawmakers from several states attempted to urge the US Supreme Court to overturn its 2015 landmark precedent that granted same-sex couples the right to marry; the North Dakota Senate has already shut it down with a vote of 16-31. Whilst no states have passed resolutions urging SCOTUS to overturn Obergefell v. Hodges at the time of writing, the US Congress adopted, with former president Biden’s approval, the Respect for Marriage Act in 2022 to provide statutory protection to same-sex and interracial marriages.
This same trend of recognizing same-sex relationships is also observable in Asian countries, with Nepal and Thailand recognizing same-sex marriages, and five Japanese prefectural courts declaring the same-sex marriage ban unconstitutional between 2022 and 2025.
In conclusion, the legal recognition of same-sex partnerships is consistent with the international human rights standard and legislative trend. It is now the government’s legal responsibility to abide by the ruling of the Court of Final Appeal. It is high time for the legislative and executive branches to fulfil their obligations in good faith for the better protection of same-sex couples.
