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.

Original meaning and same-sex marriage in Hong Kong

The turn to history, tradition, and the past more generally as a way to argue against marriage equality is nothing new. In this paper, I discuss the most recent manifestation of this tendency in Hong Kong in light ofMK v. HKSAR (2019), the latest case in the local litigation over same-sex unions. In MK, the court bases its ruling against same-sex unions by considering the original meaning of the right to marry in Article 37 of the Basic Law. I will explain how the court’s turn to original meaning underpins its reasoning on lex specialis. I will conclude by positing an alternative approach to the interpretation of Article 37 in light of recent common law precedent cases.

There and Back Again: Progressivism and Backlash in Taiwan’s Fight for Marriage Equality

In May 2017, the Taiwan Constitutional Court declared prohibitions against same-sex marriage unconstitutional, but applied a delayed application clause that allowed the legislature years to amend the Civil Code before the decision would go into effect. The decision spurred backlash among conservative groups, resulting in a referendum. Despite this, the Taiwan Parliament conformed to the court ruling and passed a bill that legalized same-sex marriage in May 2019. The bill was problematic, however, for being restrictive on adoption rights and on marrying foreigners. This paper addresses the role of backlash in the creation of Taiwan’s marriage equality law, and assesses the efficacy of the delayed application clause by comparing how backlash politics operated in the march towards marriage equality in South Africa, which employed a similar judicial strategy of remedial delay, and the United States, which did not.

Transitional Equality in Transnational Context

This paper uses as its departure point the framework of “transitional equality” that centers the socio-legal experience of shifting relational status. It uses as a key example the shift of hundreds of thousands of same-sex couples in the U.S. traversing the marital border through the nationwide availability of marriage. This concept provides a space to address inequalities that may arise during the process of legal relational transition. Movement across the status border of marriage, while bringing important legal protections, also reveal a variety of social and structural dynamics, influenced by economics, race, gender, age, and legal awareness, that shape experiences of equality. It also highlights transitions within the socio-legal institution of marriage, revealing boundaries between social norms and legal structure, pertaining to gender and other forms of equality. This paper connects insights in the U.S. context with recent legal change concerning marriage internationally.