CIVIL UNION AND PARTNERSHIP ALTERNATIVES ARE NO SUBSTITUTE FOR MARRIAGE

On 5 September 2023, the Court of Final Appeal in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28 held that the government has a positive duty to legally recognize same-sex couples under Article 14 of the Hong Kong Bill of Rights. It also ordered the government to come up with a framework for the legal recognition of same-sex couples by October 2025 – a framework that could take the form of some new partnership legislation or, preferably, simply ending the exclusion of same-sex couples from marriage.

What’s the stance of HKME?

HKME calls for an end to the denial of marriage for same-sex couples in Hong Kong. Only ending exclusion from marriage would provide the full measure of clarity, security, and equal dignity and respect that couples (and their families, businesses and those interacting with them) deserve.

The Court of Final Appeal asked the government to come up with an alternative framework. Why push for marriage?

The Court of Final Appeal made it clear that the government can end the denial of marriage if it wishes to do so. HKME is of the view that marriage is the best answer to the framework question, as it is the only proven solution to ensure same-sex couples are afforded the respect and protections the court prescribed. A strong majority of Hong Kongers also agree, with polls showing 60% support for same-sex couples marrying.

What about core rights?

Same-sex couples want to marry for similar reasons as everyone else – because they love each other and want to commit their lives together. Just as most couples would not want to trade their marriage for a civil union or partnership, same-sex couples should not have to settle for something other, lesser or different. A partial recognition of their relationships is unfair and can lead to other problems. 

What about civil union?

Civil union as an alternative to marriage is preferable to no recognition, but is problematic in that it repackages discrimination, rather than eliminates it. A total of 18 jurisdictions that initially enacted civil union or registered partnership legislation than simply ending marriage discrimination have since abandoned those alternatives and embraced marriage equality, with Greece being the most recent example.

What are the problems with civil union? 

Civil union does not offer the same social acceptance or status as marriage – as a separate and lesser status, it actually reinforces stigma and perpetuates discrimination. Legally, civil union does not provide protection, clarity, security, nor the same practical benefits as marriage. What is universally understood with two words—”we’re married”—is not understood when a separate status is created that front-line emergency personnel, employers, police, businesses and even officials do not understand. In many of the countries that experimented with civil union, couples were denied entry to the hospital room after their loved one had a car accident, because no one in the hospital understood what a “civil union” or other separate relationship status meant. Even when partners carried their paperwork around and showed it, they were denied the chance to care and protect their spouses.

Socially, civil union can lead to many day-to-day problems, including confusion and outing. For businesses, having a separate system for same-sex couples means extra administration costs. Overseas experiences also suggest damning conclusions. The New Jersey Civil Union Review Commission concluded that “the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children.” In short, alternatives like civil unions and registered partnerships are no match for the simple, fair and inclusive solution of recognizing the right to marry for all loving and committed couples.