By Gabriella Chan

Hong Kong, 17 November 2022: The staging of an acclaimed play, We Are Gay, at the West Kowloon Cultural District’s Xiqu Centre last week coincided with another landmark moment for Hong Kong’s LGBTQ+ community. While the drama – a highlight of the 2022 Hong Kong Arts Festival – was being acted out in front of large and appreciative audiences, myself included, it also provided an appropriate backdrop to a court ruling which sustained the fight for same-sex marriage equality.

Three Court of Appeal judges granted activist Jimmy Sham’s application to take his attempt to win full rights for married same-sex partners to the Court of Final Appeal. In August, the same judges had ruled that marriage was the preserve of opposite-sex couples and that the government had no obligation to recognise same-sex unions. Last week, however, they declared Sham’s case had raised questions of great public importance which should be determined by this city’s highest court.

Human rights activist Sham – currently in custody facing subversion charges arising from an unofficial legislative primary election in 2020 – married his husband in the US in 2013. He applied for a judicial review in 2018, claiming Hong Kong was violating the Basic Law with its refusal to allow same-sex couples to marry and its failure to recognise foreign same-sex marriage. The Court of First Instance dismissed his application in September 2020 and this ruling was upheld by the Court of Appeal three months ago.

While tempered with realism about the chances of success – the Court of Appeal last week said Sham’s submissions “are reasonably arguable, even though we do not consider the arguments to be particularly strong” – this latest ruling is welcome. It also underscores how the LGBTQ+ community has had to consistently resort to legal action to win equal rights concessions from the authorities, with landmark victories in matters such as taxation, inheritance rights and civil service benefits.

The government has yet to carry out a comprehensive review of its policies on same-sex unions. Yet there is growing evidence its conservative outlook is increasingly at odds with public opinion, especially that of younger citizens. A recent survey – commissioned by equal rights lobby group Pink Alliance and carried out by the Hong Kong Public Opinion Research Institute – revealed Hongkongers aged 18 to 40 are mostly supportive of LGBTQ+ equality.

Some 86% said they agreed LGBTQ+ people should be treated fairly and should not be discriminated against. In addition, 63% said this city should have legislation to prohibit discrimination against the community, while 75% said the government should legalise same-sex marriage. It is clear the majority of younger people believe unfair treatment of LGBTQ+ citizens is unacceptable.

Meanwhile, LGBTQ+ events in Hong Kong are thriving. Last month saw the latest edition of Pink Dot HK, themed “Express Yourself”, with more than 25 booths and 35 pop-up stores at the Kowloon Bay International Trade and Exhibition Centre. This past weekend, huge numbers attended Hong Kong Pride Parade’s Rainbow Market at D2 Place in Lai Chi Kok.

For the latter event, Pride Parade selected as their Rainbow Ambassador renowned playwright Candace Chong, the author of We Are Gay. Her play is a suspenseful tale of conflicting values between two generations of gay men. While it explores human nature in terms of love, desire, money, power and jealousy, it also conveys a powerful message about equality, highlighting the struggles and difficulties the LGBTQ+ community faces in Hong Kong. One of the main characters is asked whether he would like to marry his boyfriend and, if yes, whether this would be in the US or Taiwan. Pointedly, Hong Kong is not an option.

In her programme notes, Chong said the production was dedicated to “all our friends who are the same in nature but are not given equal rights”. On stage and in real life, the struggle continues.

Gabriella Chan is an Associate with BC&C. She focuses her practice on Family Law, being proficient in a wide range of matters arising from the matrimonial context, and is also active in the Hong Kong Family Law Association. She can be contacted at Gabriella@boasecohencollins.com.