Over the past decade, Hong Kong has seen a series of significant legal developments in respect of the rights of the LGBTQ community. While same-sex marriage is not legally recognised in Hong Kong, the increasing number of overseas same-sex marriages has prompted legal challenges around the rights of such couples living and working in Hong Kong.
Despite the statutory limitations on same-sex marriage, the courts have adopted a progressive stance in many key decisions. The Court of Final Appeal has repeatedly recognised that traditional policies discriminating against LGBTQ+ individuals are unconstitutional. The following summarises the progress through the courts, which has been piecemeal but in every case a positive move for the LGBT+ community.
Immigration rights
In the landmark case QT v Director of Immigration [2018], the Court of Final Appeal held that expatriate couples who had legally married or entered into a civil partnership overseas would be able to accept work in Hong Kong and to have their partners join them under a dependant's visa. This resulted in a policy change at the Immigration Department to allow such applications, provided there was 'reasonable proof of a genuine relationship between the applicant and the sponsor.'
Employment benefits and taxation
In Leung Chun Kwong v Secretary for the Civil Service [2019], the Court of Final Appeal ruled in favour of a claim for entitlement to spousal medical and dental treatment and the right to joint assessment of taxes. The claimant, who was married overseas to an employee of the civil service, claimed that he had been unlawfully discriminated against on the basis of sexual orientation. The final court agreed with the claimant and brought the necessary change that civil servants' spouses under a foreign registered marriage could enjoy these benefits and non-civil servants, who were married same sex couples, could be jointly assessed for tax.
Access to public housing
In 2023, the Court of Final Appeal found in favour of applicants claiming rights in respect of public housing and subsidized housing. In the jointly heard cases of Infinger v the Hong Kong Housing Authority and Ng Hon Lam Edgar v Hong Kong Housing Authority the court found that the challenge by Mr Infinger to the public rental housing policy excluding same sex spouses from applying for public rental housing units as a family was discriminatory and therefore unlawful and the challenge by Edgar Ng that the Housing Authority's policy excluding same sex spouses of Home Ownership Scheme tenants from the definition of 'family members' and 'spouses' was also discriminatory.
Inheritance rights
In November 2024 the Court of Final Appeal in Secretary for Justice v Li Yik Ho in substitution for Ng Hon Lam Edgar (as Edgar Ng had passed away) important changes were achieved in respect of a same sex spouse's entitlement and benefits under the Intestates' Estates Ordinance (IEO) and the Inheritance (Provision for Family and Dependants) Ordinance (IPO). The Court found that the exclusion of spouses to same-sex marriages from legal entitlements and benefits relating to probate, inheritance, and intestacy under both ordinances constituted unlawful discrimination.
Chow J in the Court of First Instance suggested remedial interpretation of the IEO and the IPO and 'valid marriage' should be read to include 'a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed, including any marriage where the persons are of the same sex and such marriage between them would have been a valid marriage under this Ordinance but for the fact only that they are persons of the same sex'. Also 'for the purposes of the IEO and IPO: references to 'husband and wife' should be read as 'a married person and his or her spouse'; 'husband or wife' should be read as 'a married person or his or her spouse'; and 'husband' and 'wife' in relation to a person should be read as 'a spouse of that person by a valid marriage'.
The Court of Final Appeal agreed with the CFI judge and the Court of Appeal and found that a married same-sex couple was in an 'analogous situation' to a married opposite sex couple. There was no reason to treat the status of marriage as determinative for the purposes of the IEO and the IPO. There then followed an Appendix containing suggested amendments to a great variety of legislation in addition to the IEO and the IPO, such as the Companies Ordinance, the Coroner's Ordinance etc adding a definition of cohabitation which includes same sex couples.
A turning point: Legal recognition of same-sex relationships
Perhaps the most pivotal recent decision is Sham Tsz Kit v Secretary for Justice [September 2023], in which the Court of Final Appeal directed the Government to establish a legal framework to recognise same-sex relationships—akin to a civil partnership regime within two years from the date of the judgement. As that means October this year, it will be a small miracle if this comes to pass within the suggested timetable. A civil partnership regime would provide protection for the couple in all matters, including relationship breakdown, as well as rights of inheritance and the bundle of rights which have been achieved thus far.
These cases illustrate a progressive shift toward recognising the rights of LGBTQ+ individuals in Hong Kong. While the pace of change has been piecemeal and often judicially driven, the courts have consistently affirmed an anti-discriminatory approach. It remains to be seen whether the Government will now act decisively to create a comprehensive legal framework to reflect the evolving rights and status of LGBTQ+ people under Hong Kong law.
Our team regularly advises individuals and families on LGBTQ+-related legal matters, including immigration, tax, estate planning, and family rights. Whether you are navigating the implications of a same-sex relationship in Hong Kong or seeking clarity on your legal entitlements, we can assist you in understanding your rights and securing appropriate protections. Please get in touch if you would like to discuss your situation in confidence.
This article was first published in Hong Kong Lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
