A detained activist in Hong Kong has recently initiated his final appeal in a significant case for the LGBTQ+ community, seeking recognition for his same-sex marriage conducted overseas.
Jimmy Sham, a well-known pro-democracy activist who played a prominent role in the 2019 protests, began his legal challenge five years ago, aiming to declare that Hong Kong’s laws, which do not acknowledge foreign same-sex marriages, infringe upon his constitutional right to equality.
However, his case was dismissed by lower courts, and subsequent appeals were unsuccessful.
Sham is currently in custody, facing charges of subversion related to an unofficial primary election, following the implementation of a stringent national security law imposed by Beijing on the former British colony. The forthcoming judgment by the city’s highest court in his marriage case will have significant implications for the LGBTQ+ community and the city’s reputation as an inclusive place to reside and work.
Presently, Hong Kong recognizes same-sex marriage only for specific purposes such as taxation, civil service benefits, and dependent visas, with many of these concessions obtained through legal challenges in recent years.
The court will be tasked with addressing whether the exclusion of same-sex couples from the institution of marriage, along with the absence of alternative legal recognition for same-sex partnerships, violates the right to equality. Furthermore, the judges will have to determine whether Hong Kong’s laws contravene this right, which is enshrined in the city’s constitution, as they do not recognize foreign same-sex marriages.
During the court proceedings his lawyer, Karon Monaghan, argued that the non-recognition of same-sex marriage in Hong Kong conveys a message that it is deemed less deserving of recognition compared to heterosexual marriage.
Sham and his husband were married in New York in 2013. They desired to have their marriage recognized in Hong Kong, but the law did not permit it, as determined in previous judgments.
A ruling in 2020 stated that Sham’s marriage lacked essential validity due to the city’s law prohibiting same-sex marriages. The ruling further noted that Sham’s endeavor to achieve full parity of recognition between foreign same-sex marriages and foreign heterosexual marriages was considered “too ambitious.”
Sham’s appeal in the case was rejected in August of last year.
Formerly the convenor of the Civil Human Rights Front, Sham was widely recognized for leading the annual march commemorating Hong Kong’s handover to Chinese rule on July 1, 1997, for several years. The group also played a significant role in organizing large-scale political protests that shook the city in 2019.
In 2021, the Civil Human Rights Front was disbanded due to a reported police investigation into potential violations of the security law.
In a separate ruling in February, the highest court in Hong Kong determined that full sex reassignment surgery should not be a mandatory requirement for transgender individuals to change their gender on official identity cards. Supporters hailed this as a significant milestone for the transgender community in Hong Kong.
