The case for recognizing same-sex marriage in Hong Kong

October 23, 2019 09:00
Activists march for LGBT rights in Hong Kong in this file picture. The government is facing growing calls to legalize same-sex marriage. Photo: Reuters

In the 18th and 19th centuries, countries around the world saw homosexuality and non-heterosexual relationships as deviance from acceptable norms – from Victorian prudishness in the United Kingdom to thinly concealed religious homophobia in the United States, from the Westernization-induced ostracization of same-sex relationships in Qing Dynasty, to the stigma against such relationships enacted in the Indian subcontinent. To love, for a significant population in the world, was taboo; to express their love would have been unforgivable.

Fast forward two centuries, and even the conservative and religiously obstinate United States saw the landmark Obergefell v. Hodges ruling that granted the basic right to having their relationship recognized and enshrined for LGBTQIA+ couples. In distinct contrast, Hong Kong – as a former British colony and Chinese city – remains heavily dominated by colonial cultural relics and entrenched norms that portray all non-heterosexual couples as “unnatural” and thus worthy of exclusion. Despite progress made on the fronts of business and professional sectors, same-sex marriage remains a potentially distant objective and possibly intangible for a multitude of reasons.

Just 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.

Such a claim to acceptance stems from grounds far more fundamental than whether society is offended, or the arbitrary historical precedents that opportunists tend to appeal to; this claim stems from the luck-egalitarian presumption that all individuals are equal unless, through choice, agency, and other-harming actions, they opt to give up their entitlement to equality.

To the extent that the government has already articulated its apparent discomforts with discrimination against same-sex couples, or individuals of different orientations – it appears that this statement embeds within it an acceptance of the view that equality concerns do and should apply between individuals who have no difference bar from the gender of whom they love.

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.

Yet 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 haphazard, patched provision of limited and transient recognition to be the administration’s only and deafeningly silent answer to egalitarian calls for justice.

It is not good enough that you can only claim the ashes of your deceased spouse if you are of a different gender to them.

It is not good enough that you can only access clauses that ensure you and your partner’s financial, economic and social security if you are a heterosexual couple.

It is not good enough for Hong Kong, in 2019. Neither is it good enough anywhere in the world.

Suppose you don’t like ethical arguments and appeal to moral intuitions. Let’s talk economics, then. 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.

In June 2019, Allen and Overy released a report entitled “The Recognition and Treatment of Relationships under Hong Kong Law”, which argues that the anachronistic and unfit-for-purpose rules governing marriage fundamentally undermine both individual rights and legal enforcement in areas such as market misconduct laws, crime prevention, and immigration disputes. Such legal loopholes render Hong Kong far less accessible to international businesses than it ought to be.

A few days ago, I sat down with Marc Rubinstein, co-chair and co-founder of the Hong Kong LGBT+ Attorneys (HKGALA) Network – which was founded in 2013. In discussing the report, Marc notes that one of the strongest arguments in the public interest for the legal recognition of same-sex relationships lies with Hong Kong’s “unique status as an international, global financial center”.

“As a center of global capital, Hong Kong is a part of a globally competitive environment. Its ability to attract foreign talents, to retain local, educated citizenry, and to ensure that talents going abroad have incentives to return and come back,” hangs upon its willingness to embrace same-sex relationships.

The veteran counsel notes that the issue of same-sex marriage is “very symbolically important”. He adds that, “A society that demarcates its values around LGBT+ rights would show its desires in a way that is expected of a global financial center.”

The “silver bullet” advanced by many opponents of same-sex marriage is that legalization of such a relationship would “destroy families”. The “logic” is roughly as follows: if same-sex marriage is legalized, this would dilute our understanding of family as founded upon a relationship between a man and a woman.

Yet this argument is frankly bizarre – there is no reason for us to believe that the socialized gender or biological sex of an individual would affect the propensities and aptitude at parenting of individuals; parenting capacities are socially constituted and can be acquired or learned. Bad parents are not bad because of their gender, but because of personalistic characteristics and shortcomings. Thus even if somehow legalization increases the number of same-sex couples and families – that is no concern.

Moreover, presumably legalization only enables those who seek to build same-sex relationships to enter into legally recognized marriages – it does not compel or coerce heterosexual couples to become homosexual, all of a sudden. Individuals’ sexual orientations are intimate, personal, and apparently significant – it is not something that would be easily altered based on the possibilities permitted by the law.

To assert that emancipating the legal definition of marriage would encourage heterosexual individuals to become homosexuals is frankly the most ludicrous humbug that could ever be uttered. If the claim is that individuals who are homosexual would no longer enter into heterosexual relationships that apparently and fundamentally go against their will – that sounds like a positive gain for all parties involved, as opposed to a loss. This “family” objection holds little to no water.

Yet suppose neither economics nor ethics could persuade you. I want to appeal to your moral sentiments – our naturalistic sense of what is right and wrong that precedes what we are taught and raised to believe.

Suppose we were born into a society where homosexual relationships were the norm, and heterosexual relationships became vastly stigmatized and chastised. The homosexual relationship is typified as the norm, whereas the heterosexual is dismissed as unnatural. There is no normative reason – beyond the arbitrary fact that the sociological defaults of relationships have been inversed – for us to argue that heterosexual relationships ought to be legally dismissed, politically sidelined, and socially stigmatized.

Yet if we are indeed open to the idea that both heterosexual and homosexual relationships would be equally acceptable and understandable in such a world, why could we not extend such intuitions to the world we inhabit today?

Marc raises the following poignant questions; how would you feel if your son were barred from marrying the love of his life simply because a majority of those inhabiting his society deemed him and his partner unworthy? Would the fact that your parent came out as LGBT+ change the extent to which they love you and you love them? How would you feel, as a heterosexual, if your marriage status were stripped because of the arbitrary whims of strangers who have little to nothing to do with your private lives?

Perhaps the objection here is one from “custom” – that the legal recognition of same-sex marriage subverts or upsets our established social norms. Yet let us not forget that slavery was the norm up till 200 years ago in the USA, foot-binding was a custom that oppressed and locked in women’s fates in Qing Dynasty, and that child marriage and female genitalia mutilation remain “norms” in many countries around the world. Is a society where norms are fetishized for their sake the kind of polity we’d like to live it? Why should we let the injustices in our world today bind our vision for our tomorrow?

The society, the culture and norms into which we are born are arbitrary – we do not consent to or pre-select the shackles and “cages of norms” (Acemoglu and Robinson) that shape and engineer our life chances. If we are at least minimally egalitarian – that is, we care for individuals’ equal rights and opportunities to succeed in life to an extent – we should recognize that we have no obligations to adhere to rules and norms engineered by scriptures, texts, and power blocs that far precede our existence in time.

If the argument, alternatively, is that we must wait for customs and norms to change… if this were the mentality and 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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Assistant Professor, HKU

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