The Courts, Public Opinion, and the Rights of Lesbian, Gay, Bisexual and Transgender Persons: A Hong Kong Perspective

In recent years, courts in many jurisdictions have considered the relevance of societal consensus when reviewing policies that affect the rights of lesbian, gay, bisexual and transgender (LGBT) persons. This paper focuses on three cases concerning transgender marriage and the rights of same-sex couples in Hong Kong. A study of these decisions offers comparative insights about the role of public opinion when judges resolve potentially controversial claims. It examines the lower courts’ reliance on, and the Court of Final Appeal’s ultimate rejection of, consensus as a factor when justifying limitations on fundamental rights. At the same time, this analysis suggests a more nuanced approach entailing both resistance and responsiveness to public opinion. The Hong Kong jurisprudence set the stage for developing notions of consensus which could enhance judicial contributions toward broader discussions in support of LGBT rights protection.