Alfred Ip and Azan Marwah discuss the importance of marriage and the value of family within society, including same-sex couples. Such value needs to extend protections afforded to everyone as a fundamental right, also when things break down, for example in case of divorce.
The speakers give an overview of the evolution of marriage in Hong Kong through the years and the changes experienced by traditional Chinese society during British colonial rule. They touch upon the introduction of the Bill of Rights in 1991 and the constitutional rights to equality before the law and protection from discrimination, and the decriminalization of homosexual acts.
Azan Marwah talks about the Billy Leung case (Leung TC William Roy v Secretary for Justice) that equalised the age of sexual consent in Hong Kong in 2006 in the Court of Appeal; the W case and the fight for transgender rights; and then the case of QT v Director of Immigration, which opened the way to overseas marriages and civil partnerships for obtaining a dependant visa – marking further progress with a yet another successful case at the Court of Final Appeal.
A few years later, the Angus Leung v Secretary for the Civil Service case brought another victory for same-sex spouses, extending rights for civil servants’ spousal benefits and joint-tax filing. This legal challenge took a long time and demonstrated once again that the Court of Final Appeal recognises the need for equal treatment of LGBTQ families in Hong Kong, despite the government resistant attitude to change.
As a matter of fact, the lack of law reform by the government has generally failed to protect the rights of the LGBTQ community. As a result, progress will likely only be made through the courts, through brave individuals who will keep challenging the status quo. Hopefully the government will see reason and bail to the pressure from the overall majority of Hong Kong society approving the need to protect the rights of same-sex families. Azan Marwah mentions two more court cases – MK and Sham Tsz Kit (STK). The latter could open the way to full marriage equality, and is going to be heard on 28 June 2023.
Alfred Ip provides practical reasons why same-sex couples should still get married (overseas): examples span from stamp duty to basic protections related to inheritance. He also comments on the high cost of time, pressure and money for individuals, the government and tax-payers to have these cases heard in court. Azan Marwah points out the need for more people to come forward and bring challenges in order to keep the pace of progress. Moreover, he highlights the rights that these individuals have in being protected by anonymity.
SHOW NOTES:
00:32 The importance of marriage and its value in society
03:55 Evolution of marriage in Hong Kong
08:05 Landmark court cases
13:36 Failing to implement new legislation
16:42 Practical reasons to get married
18:50 Rewards of changing the status quo
21:33 Anonymity orders
TRANSCRIPT
The Road to Equal Marriage in Hong Kong
Alfred Ip 0:00
Good morning everyone, I’m Alfred Ip. And you?
Azan Marwah 0:12
I’m Azan Marwah.
Alfred Ip 0:13
And we’re talking about same sex marriage today.
Azan Marwah 0:16
Yeah.
Alfred Ip 0:17
So, let’s begin with what you think is same-sex marriage.
Azan Marwah 0:24
In the simplest way, it’s legalized or legally recognized marriage between two people of the same gender.
Alfred Ip 0:32
Why is it important?
Azan Marwah 0:35
Well, for the reason that marriage is important!
Alfred Ip 0:38
Marriage is important, I agree with you.
Azan Marwah 0:41
It really is that simple. How is it that people can receive equal treatment in their relationships with their families with each other, and with the state except by having the marriage recognized?
Alfred Ip 0:54
Yeah. A lot of people would disagree and say, same sex marriage breaks the traditional marriage value, or the ethic core value, which is the union of one man and one woman.
Azan Marwah 1:10
Yeah, I really would strongly disagree with that. I think the core value that all people share is the belief that family is a fundamental part of society. And the truth is, there are all different kinds of families, there was a time when people would have said that a marriage between people of a different race or a different religion, was against a core value, but really, those are aspects of prejudice. And recognizing families recognizing relationships in marriage only benefits society.
Alfred Ip 1:44
At the end of the day, marriage or family, that’s about two people, at least two people committing to each other, to build something together. And in that respect, there might be children, it might be the relationship itself more, or there might be the joint effort to accumulate family wealth, that in a situation when there is disagreement, or even dispute or even like dissolution, people need to be protected by the law. They need to know their rights, their responsibility, so that everyone can have their fair treatment in this. And in that respect, I don’t see why these kind of protections should only apply to heterosexual marriage, but not same sex marriage?
Azan Marwah 2:39
Well, I think you’ve pointed to two different parts of law, which are really important. One of them is protecting relationships. And the other one is protecting people when relationships break down. Yeah, protecting relationships, because those relationships are so important and valuable, because life is what it is. Sometimes you hit speed bumps. And there are lots of different areas in the law, tax, employment, insurance, medical, what happens when you die, that having the special protections for relationships enables those relationships to weather the storm, and it better protects everybody and their families when they go through difficulty. On the other side of that, what happens when relationships break down? Really, family relationships, they are a kind of promise to one another that we’re going to take care of each other. And the law, when those relationships breaks down, tries to protect people from what happens when those mutual supports disappear.
Alfred Ip 3:46
Why is it so difficult for people in same sex marriage to get their protection? Why is the law not recognizing them?
Azan Marwah 3:55
Well, in Hong Kong marriage has a really long and complicated history. Before the arrival of the British, we had Chinese customary law, which sometimes was recognizing same sex marriage, and sometimes it wasn’t. But when the British arrived, they introduced the system of marriage based on Christianity. Initially, they were allowing non-Christian marriages to go along a parallel track. But then in 1971, 1970…
Alfred Ip 4:24
Marriage Reform Ordinance.
Azan Marwah 4:25
That’s right. They changed the change the law and said, no, we’re only going to recognize one kind of marriage and that’s what they call Christian marriage, or its civil equivalent. This meant, as you said before, one man and one woman exclusively for life.
Alfred Ip 4:40
And at the same time, they will recognize the traditional marriage, including the woman called concubinage or “tsip” in Chinese.
Azan Marwah 4:50
Yes, yes!
Alfred Ip 4:53
Chinese traditional marriage actually recognizes more than two people getting married.
Azan Marwah 5:00
That’s right. And that was against British policy. So they wanted to phase that out. And in 1970 1971 they said, well, from now on, you can register your old customary marriages. But from now on, we’re only going to recognize one man, one woman.
Alfred Ip 5:18
Even at that time, when they are recognizing customary marriage, there are certain rituals that the parties have to perform, in order to get it properly recognized, is it’s not like, oh, the two people just live together, and then the third party come along, and then just have a dinner and everything is organized. It’s not that simple.
Azan Marwah 5:42
No, no, it wasn’t that simple.
Alfred Ip 5:43
Yeah. So, when we talked about two people getting married, this is what we call you say traditional Christianity mentality, but in terms of the Chinese traditional culture is actually more liberal than that.
Azan Marwah 5:59
That’s right. And Hong Kong, you can say, used to be a slightly more liberal place where there were different kinds of marriages based on different traditions. But historically, that system is the one that carried over to the handover. And it became, if you like, ossified as part of Hong Kong law. But since 1991, something really important happened. The British government decided to introduce the Bill of Rights, the Bill of Rights introduced this concept of equality before the law and freedom from discrimination. When they did that, immediately, they had to reckon with the contradiction of having laws against homosexuality. And very quickly, they repealed aspects of the law that criminalized certain kinds of homosexuality.
Alfred Ip 6:51
That’s when?
Azan Marwah 6:53
1991
Alfred Ip 6:54
So, 1991 is the first case that de-criminalize same sex with…
Azan Marwah 7:02
…legislation
Alfred Ip 7:03
It’s legislation that decriminalizes same sex acts.
Azan Marwah 7:08
Yes. specific kinds of…particularly buggery. Well, we think at the time, certain kinds of other same sex acts were probably also criminalized, but because of the Bill of Rights, those parts of the ordinances, they they’re interpreted differently now.
Alfred Ip 7:31
But it was only after many years that they started recognizing sort of same sex marriage. Why did it take so long?
Azan Marwah 7:45
The first point would be to say that the political side of Hong Kong, there wasn’t really any push to change the law positively constructively to deal with questions like same sex relationships. So you had to have a few things happen. First, we talked about the Bill of Rights. The second thing that happened was you really had to have people come forward and put their hands up to say that the law was treating homosexual people different from other people. And the first one of those cases is the Billy Leung case. Billy Leung came forward and he said, the age for sexual consent in Hong Kong for straight people is 16.
Alfred Ip 8:29
Okay.
Azan Marwah 8:29
But for homosexual people, it’s 21. Okay, that effectively means that gay people can’t have full relationships with their partners until they turn 21.
Alfred Ip 8:41
to have sex!
Azan Marwah 8:44
Full relationships, unless they are willing to risk a prison. And Billy came forward when he was a teenager and said that he wanted to challenge that law. And the government, obviously they pushed back and only I think in 2007, Billy was successful in the Court of Appeal.
Alfred Ip 9:02
That was less than 20 years ago.
Azan Marwah 9:05
That’s right.
Alfred Ip 9:06
Less, like almost more than 10 years after the legislation, decriminalize the same sex act. Things are condom that’s recovered.
Azan Marwah 9:17
Yeah.
Alfred Ip 9:18
So it takes so long…
Azan Marwah 9:19
Sorry, I correct that. I think it’s 2003, 2004.
Alfred Ip 9:22
It was 2003 that buggery was decriminalized.
Azan Marwah 9:27
That’s right.
Alfred Ip 9:28
It takes a long way!
Azan Marwah 9:30
And after you have that, then you have more people stepping forward and saying we should be treated equally. And probably the first most important case is the case of W. W was a transgender person who wanted to marry in their in their proper gender.
Alfred Ip 9:53
Yep.
Azan Marwah 9:53
And they were refused a license to marry by the wedding registry.
Alfred Ip 9:58
Because W’s birth certificate still register her as a he.
Azan Marwah 10:05
That’s right.
Alfred Ip 10:06
And after that case, how did that how did the law change in relation to recognizing same sex marriage?
Azan Marwah 10:17
Well, the next big important thing to happen after that was a case called QT, where a, they weren’t in a same sex marriage, they were in a civil partnership from the UK, a couple of lesbians came to Hong Kong. And he that if you’re like the trailing spouse, said that she wants to get a dependent visa. But the government said, No, you don’t fall within our dependent visa policy, because you’re not married.
Alfred Ip 10:46
Okay?
Azan Marwah 10:46
And QT said, but I can’t get married because I’m in a same sex relationship. And the government said, Well, this is part of our policy, generally protecting the marriage system in Hong Kong. Also, we can’t be sure that same sex relationships really have the same quality as, as as straight relationships. And the Court of Final Appeal rejected that and said, No, straight families and LGBT families, they have the same quality of relationships. And those relationships really in substance are the same as marital relationships.
Alfred Ip 11:24
And this case QT is just like W. But the parties have to go all the way up to the Court of Final Appeal in order to get the ultimate effectually.
Azan Marwah 11:37
That’s right.
Alfred Ip 11:37
It’s not an easy road!
Azan Marwah 11:39
No, not at all. And the next case after that is Angus Leung’s case, that’s actually the first true same sex marriage case, because this couple that had been married beforehand, that dealt with tax, but also with civil service benefits. In that case, that also had to go all the way to the court of final appeal. It took quite a deal of effort. But it does demonstrate that on the one hand, the quarterfinal appeals very willing to recognize the need to provide equal treatment for LGBT families. But on the other, on the other side, the opposition of the government to these cases.
Alfred Ip 12:21
If you can share with us, what’s the main argument put forward by the Government to resist the recognition of same sex marriage and equal treatment?
Azan Marwah 12:33
It depends on the area of law. Yeah, but typically, the arguments are very few in number, either they will be about practicality, the belief that, well, we know what the arrangement is for straight couples, same sex couples are somehow different, and that puts a burden on us. Now, that argument has almost no traction. The second argument they put forward is the need to protect traditional family.
Alfred Ip 13:01
Okay, we go back to that: how to protect traditional marriage by refusing same sex marriages.
Azan Marwah 13:07
That’s right. And typically, the courts have said, well, protecting traditional families, that’s a perfectly legitimate aim. Traditional families should be protected. But then typically, the court will say, but how does treating this group of people less well protect traditional families?
Alfred Ip 13:28
But should that be the case? After all these cases and more cases that come forward? We’re not going through all of them! How come Hong Kong still not recognizing same sex marriage performed overseas in a blanket way?
Azan Marwah 13:45
Well, at the moment, it’s fair to say that the legislation is written very clearly, to provide only for heterosexual marriage. So, you have to accept that the change that has to come has to come either through new legislation, or through the courts. Legislation is probably unlikely to happen because of the political decisions that have been made, which are pretty clearly against same sex families. But on the other hand, the courts, they are happy to hear those cases. The difficulty, of course, is that every time you encounter a discriminatory treatment, you have to have another case, another applicant. And it takes time.
Alfred Ip 14:31
Even though actually there was some statistics or survey conducted a couple of years ago saying that more than half of the population support same sex marriage?
Azan Marwah 14:43
I’ll do you one better and tell you that the there’s another survey supposed to come out any day now which is, my understanding, is that it will show an even greater majority of Hong Kong people are supportive of equal treatment for same sex couples.
Alfred Ip 15:01
And yet the government, there’s no roadmap for the government to recognize same sex marriage.
Azan Marwah 15:07
No, it is a it is a difficult thing for them politically. But who knows? There is a lot of pull from, from society and obviously from other countries where there’s rapid pace of change. I’m quite hopeful that eventually the government will consider this and implement legislation.
Alfred Ip 15:29
We hope we can see it one day. I think there is one case that someone is challenging the government head on with the recognition of same sex marriage as a whole.
Azan Marwah 15:42
That’s right. So, in fact, there were two recent cases, one of them called MK, and the other one called STK, or the STK case will be heard by the quarterfinal appeal any day now. Very, very soon, on the 28th of June, that considers whether or not the courts should require the government to provide equal status for foreign same sex marriages. If that case is successful, that will effectively mean complete marriage equality. If the case is not successful, then it may it does not necessarily mean there’s not equality, it just means that equality will take a lot longer. And it will happen piece by piece.
Alfred Ip 16:28
It’s strange enough that the court fixed that hearing, a very important hearing, in June, the Pride month.
Azan Marwah 16:37
Well, it was chosen some time ago. So, I think they did it intentionally.
Alfred Ip 16:42
Obviously, a lot of people daren’t ask that question. Since the same sex marriage is not recognized in Hong Kong anyway, why get married?
Azan Marwah 16:51
Well, I would first say that same sex marriages are recognized in Hong Kong for certain purposes. And those purposes are really valuable. And they can they can be significant. The first, the first one is those cases that have already come. So, there are cases dealing with inheritance, dealing with arrangements when you die, taxation, employment benefits, visas, I could go on. And in all of those cases, the courts have said there has to be equal treatment, if you are not already in a same sex marriage that’s been performed, then you can’t have access to any of that automatic protection that’s provided.
Alfred Ip 17:32
There are actually very practical reason to get married, for example, stamp duty, if a couple actually owns a property together as some joint tenant, and they wanted to decide to benefit with first purchase lower stamp duty, what they can do is to transfer the interest to one another, and they can claim the spousal relief for a lower tax rate, that actually is a very good incentive already. The second part, of course, is inheritance. With the recognition of same sex marriage in the intestacy rules, at least that provides some basic protection to the survivor of a couple who receives the inheritance and protects the accumulation of wealth during the course of that relationship. So, there are actually very good reasons to get married. And not to mention that because sex marriage cannot be performed in Hong Kong, that necessarily means that it has to be a destination wedding, why not have a party.
Azan Marwah 18:47
Yeah, I totally agree with you. I will, in fact, I will go further you use the example of stamp duty. Stamp duty was a change that occurred without us even bringing a case. And it occurred because of the other cases that had that had happened. So you will have increasingly benefits that aren’t being provided right now, but will be provided in the future because of the cases that are being done, even when we’re not bringing a specific case on that issue.
Alfred Ip 19:16
Yes. But all these benefits only arrive after people like Angus, who we know very well, are willing to take on the government and challenge the status quo. And in that case, I remember very clearly, how many years did it take for them from the beginning to the Court of Final Appeal?
Azan Marwah 19:41
The decision in the Court of Final Appeal, I think is 2019. My case file for Angus. I think they got married in 2014. My case file for them starts I think in 2015, early 2015. So, it takes five years.
Alfred Ip 19:59
Five years, after five years after spending millions of dollars, not only from Angus’ side, but also from a government side. And actually, because Angus is protected by legal aid the government is literally sponsoring these cases both ways.
Azan Marwah 20:18
That’s right. Yeah.
Alfred Ip 20:19
And just to get a very, very small achievement in terms of tax and in terms of tax, right. So, why is the government still so adamant?
Azan Marwah 20:32
Well, there’s some good news and bad news. The good news is they are running out of arguments. They ran out of arguments. The bad news is that we have to find people willing to put up the sacrifice and go through the heartache of these cases. And I tell you honestly, my heroes in Hong Kong are Edgar Ng, Henry Li, Angus Leung, Scott Adams, Billy Leung, these are people who put their time put, their put their hearts on the line to make a difference for other people.
Alfred Ip 21:08
Absolutely. And in the course of these battles, it’s not only the money side, it’s also the pressure and how the people around you see you, knowing that you are doing this, and not to mention how the employer sees you. How is it going to jeopardize your career?
Azan Marwah 21:33
Yeah, there are some positive protections that can be put in place for people like that. We talked already about MK. We talked about QT, all of these people. The reason why we call them by these acronyms is because we applied to the court for the protections for their names.
Alfred Ip 21:49
Anonymity orders.
Azan Marwah 21:50
That’s right. That’s right. And those are things that there are things that can be done to protect people who come forward to bring these cases. In the past people have done donated legal costs to help people bring forward the cases. So it is difficult. It does take a lot of time. But the rewards are huge. And you know, I’ve met people now in the last year, I’ve met people who have married because of Angus’s case, or because of Henry’s case. So I would say there are benefits that you don’t even see.
Alfred Ip 22:26
That’s very encouraging. It’s a brilliant topic. We can carry on for like, hours.
Azan Marwah 22:33
But I have to go home eventually!
Alfred Ip 22:36
Let’s just wrap it up today. And we’ll talk about other things next time.
Azan Marwah 22:40
OK, thanks.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
