When a lesbian couple in Hong Kong broke up last year after nearly two decades together, they agreed it was crucial they both continued to play an equal role in the lives of their two young children.
Securing shared custody would make dealing with many of the tasks that constantly pop up in the lives of a family – hospital visits, school trips – much easier. More than that, they were desperate to preserve the profound emotional bond anchored by constant contact with the children, aged nine and 11.
“For me to not have joint custody due to our separation would have been devastating, not only for me, but also the children,” said one of the women, who was identified in court documents as BB.
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While same-sex marriage remains largely unrecognised in Hong Kong, the High Court nevertheless recognised both women equally as parents of the children in May, handing the LGBT community a significant victory in its nearly 15-year legal fight for official acceptance.
But that optimism over the future is tempered by worries that a new wave of conservatism, riding on the back of the national security law that the Beijing leadership imposed upon the city last year, could drown out activist voices and that a switch in tactics is needed.
The first big shift for LGBT rights came in 2005, when a gay man persuaded the courts to lower the age of consent for homosexual sex from 21 to 16, making it the same as for heterosexuals. Three years ago, the Court of Final Appeal ruled in favour of a lesbian expatriate in her claim against the Immigration Department, which had refused to grant her a spousal visa despite having a civil partnership registered in Britain.
The following year, the top court sided with a senior immigration officer who challenged his employer and the Inland Revenue Department for not allowing his husband, whom he married in New Zealand, to claim spousal benefits and make a joint tax declaration, respectively.
Lower courts have also ruled against the Housing Authority for not recognising same-sex marriages from overseas in relation to applications for public and subsided housing.
Earlier this month, gay widower Henry Li Yik-ho sued the government for denying him the right to make after-death arrangements for his late husband, Edgar Ng Hon-lam, as they were married in Britain and the marriage was not recognised in Hong Kong.
Li withdrew his legal challenge after the government clarified that “there is no policy for distinction between opposite-sex couples and same-sex couples” in respect of body identification and burial or cremation arrangements, or various other related matters, such as applying for a death certificate.
But the decision in May by the Court of First Instance to grant the two lesbians joint custody could have the biggest implications for same-sex parents of any ruling yet.
BB’s lawyer, Jocelyn Tsao Chiao-lin from international law firm Withers, said such couples could now enjoy some certainty in managing their families.
“Prior to this case, there was always a question mark over children whose parents were same-sex couples,” she said.
Usually, only one partner would be biologically linked to the children, and for lesbians, it was uncertain whether the one who did not give birth to them, as was BB’s position, had equal parental rights.
“Now these rainbow families can be assured that if they want to apply for the other parent to also have these rights, they can,” Tsao said.
The lawyer for her former partner, who was identified in the court documents as AA, said schools and hospitals had been generally accommodating to same-sex couples, but there was a caveat.
“If you have to sign a legal document authorising the school or the hospital to do certain procedures, you need the legal parent to sign it for security reasons,” said Evelyn Tsao Chiao-yin from Patricia Ho and Associates and who is the twin sister of Jocelyn Tsao.
These are all matters that should be left to society to discuss and should only be changed when there is a consensus
Choi Chi-sum, Society for Truth and Light
The Education Bureau does not have a policy spelling out how schools should deal with same-sex parents and leaves it to the discretion of the institution. A spokesman of the Hospital Authority said it was the legal guardian who had to provide signed consent for treating child patients.
Jocelyn Tsao said the court ruling meant institutions such as schools or hospitals could now treat the non-biological parent as one with full parental rights.
“It’s not a discretionary decision to recognise them. There is actually a legal basis,” she added.
But not everyone in Hong Kong is pleased by the small but growing number of legal decisions that define or grant legal rights to LGBT individuals and couples.
Observers pointed to resistance from more conservative quarters, noting how some lawmakers condemned the city’s decision to host the international Gay Games, which were postponed to 2023 because of the Covid-19 pandemic.
The organisers stressed repeatedly that the event was aimed at encouraging diversity, but the city’s conservative voices insisted it would be used to advance the LGBT cause, including promoting same-sex marriage.
Pro-establishment lawmaker Junius Ho Kwan-yiu was particularly ferocious in his attacks, calling any support for the event “disgraceful” and saying revenue generated by it would be “dirty money”.
“On the surface, it is about equal opportunities, it is about inclusion. But it does not take a genius to figure out it is a wolf in sheep’s clothing,” he told the Legislative Council in August, and he went further to link the event with national security.
He cited Article 23 of mainland China’s national security law which states that the country must, among other requirements, promote the traditional culture of the Chinese people and resist the impact of harmful influences.
Others in the camp supported the Games, including veteran lawmaker Regina Ip Lau Suk-yee. Chief Executive Carrie Lam Cheng Yuet-ngor distanced herself from Ho’s remarks and warned against the danger of inciting hatred and dividing society.
A veteran observer from the LGBT movement, who preferred not to be named, said many were still trying to fathom Ho’s attack on the Gay Games.
“The fact that a pro-establishment lawmaker said that in Legco carries some symbolic meaning,” he said.
The recent legal victories have worried Choi Chi-sum, general secretary for conservative Christian pressure group Society for Truth and Light, who stressed the importance of upholding Christian family values, including the belief that marriage is meant for men and women, not same-sex couples.
Using the lesbians’ case as an example, he said gay parents often appeared to put their desire for parenthood above what was best for their children.
“Sometimes, kids are forced to have dads or mums without biological links, which may undermine their well-being,” he said.
Choi, a 61-year-old former journalist, was also not comfortable with the trend of courts ruling on what he viewed as essentially social values.
“These are all matters that should be left to society to discuss and should only be changed when there is a consensus,” he said.
Activists and advocates for the LGBT community are aware of the resistance, but insist the action taken so far has been necessary and more needs to be done. Noting that the victories had come through litigation and court rulings, some are indeed calling for change through legislation that takes into account Hongkongers’ changing views.
A 2020 poll by Chinese University researchers found that out of 1,058 people interviewed, 12 per cent objected to having an anti-discrimination law for the city’s sexual minorities, a sharp decline from 35 per cent in a similar survey done in 2016. The majority, 60 per cent, supported the change.
Support for same-sex marriage also grew, from 27 per cent in 2016 to 44 per cent last year.
About a third of those surveyed were aged 18 to 24, and their support for the LGBT community was clear. More than 80 per cent of them supported an anti-discrimination law, and 75 per cent backed legalising same-sex marriage.
The veteran observer also noted that mainland authorities had stepped up scrutiny of LGBT groups. Last month, the nation’s top media regulator issued new guidelines which included a boycott of what it called “sissy idols”, referring to male pop stars who wore make-up and did not conform to “macho” male stereotypes prevalent in traditional Chinese culture.
The observer said these moves had begun to have an effect in Hong Kong, and he had noticed that LGBT activists at recent events had shifted from lobbying hard for policy and legal changes to focusing on the well-being and mental health of the community’s members. It is common for mainland advocates to promote LGBT rights as health issues in order not to fall out of line with the authorities.
But Jerome Yau, chief executive of Pink Alliance, a non-profit advocating for greater acceptance for different sexual orientations, was more optimistic.
Referring to the LGBT court cases of recent years, he said: “Changing sentiment in the wider community, skilful litigation, favourable jurisprudence, plus the courage and bravery of the litigants helped contribute to the legal victories.
“Despite the hyperbolic comments made by certain politicians, the environment is still conducive for advancement of LGBT equality.”
Even with the recent victories, key issues remain unresolved for gay fathers. They often required the help of surrogate mothers to bear their children, and surrogacy is strictly regulated in Hong Kong to avoid commercialisation. In a case before the courts last year, clearer guidelines were set to allow surrogate mothers to receive payment for basic medical fees.
Canadian Marty Forth and his American husband are raising their 11-year-old son. The University of Hong Kong assistant lecturer in social work hailed the May ruling for sending a clear message that gay couples deserve the same treatment as heterosexual ones in terms of their rights as guardians.
Forth, who interviewed more than 30 gay men in Hong Kong and Taiwan for his doctoral thesis on their attitudes to having children and forming families, said many held back for cultural reasons.
“A lot of gay people who want to be parents feel hindered,” he said.
Lawyer Jocelyn Tsao said there were more areas that needed attention, including divorce.
Now that Hong Kong had extended limited recognition to same-sex marriages registered overseas, more lesbian and gay couples might consider going abroad to marry.
But should the relationship sour, divorce would be difficult as many jurisdictions required couples to be resident for a period before taking legal action to dissolve the marriage.
“It puts a lot of people in limbo since most Hong Kong same-sex couples who want to get married would marry outside of Hong Kong,” she said.
Forth said it would take “brave and honest” leaders to look at the changing attitudes and make the necessary changes for the LGBT community.
“Do I think Hong Kong is moving too slowly? Yes, but a lot of places are moving slowly too,” he said.
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