Hong Kong’s LGBTQ+ Legal Victories Contrast with Mainland China’s Hostile Environment
Asia’s first Gay Games recently took place in Hong Kong, with thousands of athletes participating after pandemic-related delays. The event showcased the city’s commitment to equal opportunity and non-discrimination, according to Regina Ip, the convenor of Hong Kong’s executive council. Ip commended the numerous judgments made in favor of the LGBTQ+ community by Hong Kong’s courts over the past decade. However, activists and lawyers were quick to point out that Ip’s government has consistently opposed these judgments, losing in almost every case. Despite the government’s resistance, LGBTQ+ activists have secured a series of legal victories in Hong Kong, while the situation remains challenging on the mainland.
Hong Kong’s courts have heard numerous cases related to LGBTQ+ rights since 2018, with several reaching the Court of Final Appeal, the city’s highest bench. However, human rights lawyer Mark Daly questions why the government continues to waste taxpayers’ money fighting these battles when they consistently recycle the same arguments and lose. Ip argues that the government has complied with the Court of Final Appeal’s rulings in all the cases that reached the top court.
In contrast to the legal victories in Hong Kong, mainland China’s environment for gay and transgender individuals has become increasingly hostile. In February, Hong Kong’s top court declared the policy of mandating sex reassignment surgery for trans people to change their legal gender, which is also required by law in mainland China, unconstitutional. The court also ruled in September that the government was obligated to establish an alternative framework for the legal recognition of same-sex unions, stopping short of endorsing gay marriage.
Henry Li, a solicitor, and his late husband, Edgar Ng, were at the center of several recent cases. They discovered that they could not legally live together in a government-subsidized flat bought by Ng because Li could not register as a spouse or a family member. The couple’s marriage in the UK in 2017 was not legally recognized in Hong Kong. Li pursued legal action to secure their right to live together, stating that it was a fight to stay together lawfully in their own home. Last month, the Court of Appeal ruled in Li’s favor, although the housing authority plans to appeal. Ng also fought for equal treatment of same-sex couples regarding inheritance rights, with the Court of Appeal ruling in his favor, but his assets remain frozen pending a potential government appeal following his death by suicide in 2020.
The struggle for LGBTQ+ rights in Hong Kong goes beyond the courts. In July, the city’s public broadcaster suspended its only LGBTQ+-related radio show, We Are Family, after running for 17 years. The official reason for the cancellation was not provided, but since the implementation of the controversial national security law in 2020, anything perceived as critical of Chinese authorities has become sensitive. The annual Pride march was also canceled in 2020 due to Covid-19 restrictions, and there are no indications of its return, although a pop-up Pride exhibition is in the works.
Evelyn Tsao, a human rights lawyer focusing on LGBTQ+ issues, observes that nonprofit organizations are increasingly narrowing their advocacy work to only public education, with fewer LGBTQ+ rights groups actively speaking out against public policy or engaging in political lobbying.
While the political atmosphere has not directly impacted civil rights litigation, there appears to be a chilling effect on anyone challenging the government in the courts. Some pro-democracy activists argue that LGBTQ+ rights cannot be separated from the broader crackdown on freedoms in Hong Kong. In June, a group of activists called for the cancellation of the Gay Games, accusing the organizers of aligning with figures responsible for persecuting the people of Hong Kong. On the other hand, pro-Beijing legislator Junius Ho explicitly stated that the games could violate the national security law.
Despite these challenges, the Gay Games aimed to create a platform that celebrates diversity, inclusivity, and the human spirit. It is worth noting that Taiwan, the only place in Asia to have legalized gay marriage, did not send a delegation to the event in Hong Kong due to concerns about athletes’ safety in the context of the national security law.
