2019年10月23日

Brian YS Wong

The case for recognizing same-sex marriage in Hong Kong

Last Friday, Hong Kong's Court of the First Instance ruled against a woman demanding recognition of her marriage options with a same-sex partner. The court found that the evidence was not "sufficiently strong or compelling" enough to require defining marriage "as including a marriage between two persons of the same sex".

Now I am not one with a penchant for calling out – without reason - or admonishing vociferously court rulings; the rule of law is built upon judicial independence and its ability to rule judiciously – free of societal pressures.

Yet as someone who is both concerned about the rights of LGBTQIA+ individuals around the world, and Hong Kong's status as a global city, I hope to make several claims in favor of the view that it is high time for Hong Kong to legalize same-sex marriage and/or civil partnerships. More fundamentally, even if such legislation were not possible, it is high time that the government took seriously discrimination built upon tropes and bigotry about sexual orientations.

The right to having one's marriage formalized is an integral right that should not be removed simply because of the subject or "nature" of one's relationship. There are rights that are trivial, non-essential, and optionally granted – for instance, the right to dine at a private member's club, or the right to scream profanities at a private funeral. Then there are rights that are granted due to their reflection of interests, but that which can be easily overridden or outweighed by competing interests of greater significance, such as the ominously and often constitutionally non-recognized "freedom from offense".

Yet the right to marriage is different. It is not merely the granting of a substantial set of socioeconomic privileges and rights that all individuals should be entitled to given the permanence, durability, and intensity of their mutual affection for one another. It is also the sociocultural recognition and legitimation of a relationship – the signaling that such a relationship ought to bind not merely the couple's internal expectations for one another, but also others' acceptance of them.

You may ask – why must such recognition be legislated and institutionalized? You may even argue that given that there are no prohibitions upon same-sex couples to self-identify as informal, married spouses (or to marry elsewhere), there is no imminent imperative for the Hong Kong government to enshrine these rights in law.

This argument is no different from saying that the government has no onus to guarantee individual's healthcare because they could afford it elsewhere, or overseas. The government owes its citizens a guarantee of recognition of their equal moral status – it is not good enough for a haphazard, patched provision of limited and transient recognition to be the administration's only and deafeningly silent answer to egalitarian calls for justice.

Hong Kong's archaic rules governing same-sex marriage have rendered the city deeply unwelcoming for citizens – both those who are born and raised here, and many prospective expats and foreign talents put off by its close-mindedness. A good friend of mine – Oxbridge-educated, internationally minded, and with exceptional intellect – has told me in private that he is wary of returning to or living in Hong Kong due to its fixation with policing fundamental attributes of whom he is. Similarly, not only does the city directly deter many same-sex couples from immigrating – its approach to marriage equality also signals its broader cultural conservatism, an attribute that indubitably is unwelcoming to many self-identifying progressives.

If the argument is that we must wait for customs and norms to change… if this were the metric by which policies were made, presumably there would have been no reason for the Civil Rights Movement to protest the American segregationist policies, no case to be made for feminists seeking to draw society's attention to gendered violence and discrimination, and no justification for any and all forms of protests seeking to push through baseline guarantees against recalcitrant, oppressive majorities. That sounds like a terrible counterfactual course of events.

The case for recognizing same-sex marriage is simple – it follows from our committing to the view that all persons are born equal, entitled to equal respect, and deserving of basic legal recognition. There are a plethora of benefits – both incidental and intrinsic – in a more gender-egalitarian and value-pluralist society. If Hong Kong wants to be a genuinely international city of the 21st century, it should take the leap of faith, and embrace a future of true equality.

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