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Hong Kong’s gay community suffered a new setback in the law on Wednesday after an appeals court rejected an appeal against the city’s long-standing rejection of same-sex marriages to those legally married overseas.
In recent years, LGTBQ activists have won multiple court victories against discrimination now incorporated into Hong Kong law.
But Wednesday’s ruling means the current ban on gay marriage may need to be lifted through legislation rather than courts.
The appeal was filed by prominent activist Jimmy Sham, who married his Hong Kong partner in the United States in 2013 and is trying to gain legal recognition in his hometown.
Sham is also a pro-democracy activist and one of dozens of activists in jail awaiting prosecution under Beijing’s new national security law for Hong Kong, which is designed to stifle dissent in the wake of mass protests.
Three judges ruled Wednesday that Hong Kong’s mini-constitution, the Basic Law, “only favors heterosexual marriages, meaning that only heterosexual couples are entitled to the right to recognize their foreign marriages”.
The judge added that if recognition was offered to same-sex couples married overseas, it would “create an inherent incompatibility between them and same-sex couples who cannot legally marry in Hong Kong”.
The ruling can now only be overturned by Hong Kong’s Court of Final Appeal, but it is unclear whether Sham will pursue his case, which has been dismissed by two levels of courts.
In recent years, Hong Kong has achieved a growing number of legal victories.
The ruling included that foreign lesbian couples should be entitled to spousal visas and that husbands of immigration officials should be entitled to the same benefits as heterosexual employees.
The 2004 court also declared that the age of consent for gay male residents — 21 versus 16 — was unconstitutional, but the law was only amended 10 years later.
Opinion polls show that more Hong Kongers, especially younger residents, support gay rights, while a growing number of international businesses support the marriage equality movement, believing it will make it easier to attract talent.
But Hong Kong’s Beijing-approved leadership has shown little interest in passing legislation that could bring equality to LGTBQ residents in recent years.
Many equality advocates are involved in the city’s now-repressed pro-democracy movement, while some prominent pro-government politicians have spoken out against gay rights.
The campaign for equal marriage rights has had little success in much of Asia.
So far, the only place in the region that has legalized same-sex marriage is Taiwan.
Singapore’s government said this week it would repeal a colonial-era law that criminalized homosexuality.
But it also said it would amend the city-state’s constitution to prevent legal challenges to the traditional definition of marriage.
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