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Detained activist in Hong Kong begins final appeal seeking legal recognition of his foreign same-sex marriage

An activist detained in Hong Kong began his final appeal Wednesday seeking recognition for his same-sex marriage registered overseas, in a landmark case for the city’s LGBTQ+ community.

Jimmy Sham, a prominent pro-democracy activist during the 2019 protests that roiled Hong Kong, first asked for a judicial review five years ago seeking a declaration that the city’s laws, which don’t recognize foreign same-sex marriages, violate his constitutional right to equality. But the lower courts dismissed his legal challenge and a subsequent appeal over the case.

Sham is now in custody after being charged with subversion over an unofficial primary election under a tough national security law enacted following the protests. Many other leading Hong Kong activists were also arrested or silenced by the law imposed by Beijing on the former U.K. colony.

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The upcoming judgment by the city’s top court in his marriage case will have strong implications for the lives of the LGBTQ+ community and the financial hub’s reputation as an inclusive place to live and work.

Currently, the city only recognizes same-sex marriages for certain purposes such as taxation, civil service benefits and dependent visas. Many of the government’s concessions were won through legal challenges over the last few years.

The court will have to address whether the exclusion of same-sex couples from the institution of marriage and a failure to provide alternative means of legal recognition for same-sex partnerships violate the right to equality. The judges will also have to decide if the city’s laws violate that right enshrined in Hong Kong’s constitution, as they don’t recognize foreign same-sex marriages.

Jimmy Sham

Detained activist Jimmy Sham, center, leaves a prison van to enter the Court of Final Appeal in Hong Kong on June 28, 2023.  (AP Photo/Louise Delmotte)

On Wednesday, Sham appeared spirited inside the courtroom. His supporters wished him a happy birthday as he was turning 36 years old this week.

His lawyer, Karon Monaghan, argued that the absence of same-sex marriages in Hong Kong sent a message that it is less worthy of recognition than heterosexual marriages.

But Stewart Wong, a lawyer who represents the government, said that another law under the constitution guarantees access to marriage for heterosexual couples only. The court will continue to hear the case on Thursday.

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Sham and his husband married in New York in 2013. They wished to marry in Hong Kong, but it wasn’t allowed under the law, according to previous judgments.

The ruling in 2020 said his marriage lacks essential validity, because the city’s law doesn’t permit marriage between same-sex people. It added that Sham’s attempt to achieve complete parity of recognition between foreign same-sex marriages and foreign heterosexual marriages is “too ambitious.”

Sham’s appeal over the case was also dismissed last August.

 

Sham is the former convenor of Civil Human Rights Front, which was best known for organizing the annual march on the anniversary of Hong Kong’s handover to Chinese rule on July 1, 1997, for years. The group also organized some of the bigger political protests that roiled the city in 2019.

The front was disbanded in 2021 as it reportedly faces a police investigation for possible violation of the security law.

In February, the top court ruled that full sex reassignment surgery should not be a prerequisite for transgender people to have their gender changed on their official identity cards. Supporters said it was an important milestone for the transgender community in Hong Kong.

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