Marco Wan comments on the case of Sham Tsz-kit v. Secretary for Justice on Deutsche Welle news

In a television interview with Deutsche Welle (DW) news, Marco Wan, shares the recent development of the legal framework for recognizing the existence and rights of same-sex couples in Hong Kong after the judgement of Sham Tsz-kit v. Secretary for Justice decided on 5 September 2023. He identifies and comments on the unique challenges on legalizing or offering legal recognition to same-sex marriage in Hong Kong. He also illustrates the major concerns from the LGBTQ+ Community on the degree of protection to same-sex couples in Hong Kong to be introduced by the Government's new framework. Click here to view the interview (in English) on YouTube.

Professor Marco Wan Speaks on Marriage Equality and Trans Rights at HSBC and Morgan Stanley

Professor Marco Wan spoke at HSBC and Morgan Stanley to mark the International Day Against Homophobia, Transphobia, and Biphobia (IDAHOBIT) and Pride Month. At HSBC, Professor Wan analyzed the key court cases and changing landscape of marriage equality in Hong Kong. At Morgan Stanley, he discussed the major developments and future trajectories of trans rights in the city.

     Professor Wan also serves as a curator for the Hong Kong Lesbian and Gay Film Festival. His latest article, ‘Law, Film, and Trans Identity in Hong Kong’, was recently published in the International Journal of Constitutional Law (I.CON) this summer.

Marco Wan on Same-sex Marriage in the Context of Hong Kong (JP Morgan Webinar)

Marco Wan spoke on the timely and important issue of same-sex marriage at a recent webinar at the Hong Kong office of the US investment bank JP Morgan on 24 June 2020. His presentation gave an update of the recent cases in Hong Kong, including QT, Leung Chun Kwong, Infinger, and MK, and also explored international developments. The talk further explored Hong Kong's marriage history as a way of thinking about the twenty-first century debate about marriage equality; this part of the talk drew on his forthcoming article entitled "The Invention of Tradition: Same-sex Marriage and its Discontents in Hong Kong". The talk concluded by noting the need not only to focus on marriage, but on other issues central to sexual minority rights such as employment discrimination. 

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Marco Wan on The Invention of Tradition: Same-Sex Marriage and Its Discontents in Hong Kong (Int'l J Const L)

"The Invention of Tradition: Same-Sex Marriage and Its Discontents in Hong Kong"

Marco Wan

International Journal of Constitutional Law

July 2020, Volume 18, Issue 2, pp 539-562

Abstract: In Leung Chun Kwong v. Secretary for the Civil Service, the Hong Kong Court of Final Appeal held that the government unlawfully discriminated against a gay civil servant by refusing to recognize his same-sex marriage—entered into abroad—when considering the granting of local spousal benefits and joint tax assessment. The year before, in QT v. Director of Immigration, the court had ruled against the government for denying the partner of a British lesbian a dependant visa on the basis of her sexual orientation. QT and Leung Chun Kwong are landmarks in the rapidly evolving jurisprudence on same-sex marriage in the territory. This article presents an analysis of the Hong Kong cases relating to gay rights and same-sex marriage. It contends that, even though the need to protect traditional marriage is cited as a reason against marriage equality in many jurisdictions, the claim is particularly problematic in Hong Kong, given the city’s unique marriage history. It draws on the historian Eric Hobsbawm’s notion of “the invention of tradition” to argue that the rhetoric of traditional marriage conjures up an imagined past that displaces a vast and varied set of long-standing marital practices. By exploring government reports and records pertaining to Chinese marriages in colonial Hong Kong, this article then examines these forgotten traditions and demonstrates their significance for understanding the marriage equality debate in the territory in our own time.

Marco Wan on Sexual Orientation and the Historiography of Marriage in Hong Kong (HKLJ)

"Sexual Orientation and the Historiography of Marriage in Leung Chun Kwong v Secretary for the Civil Service"
Marco Wan
Hong Kong Law Journal
Vol. 48, Part 2 of 2018, pp 605-622

Abstract:  This article critically examines the Court of Appeal’s historiography of marriage in Leung Chun Kwong v Secretary for the Civil Service. In this case, the court held that the government was right not to recognise the litigant’s overseas same sex marriage for the purposes of granting spousal benefits or allowing joint tax assessment locally. Two main assumptions underpin the court’s reasoning. First, the institution of marriage in Hong Kong is based on a history or tradition specific to the territory, such that the continuing international movement towards the recognition or legalisation of same-sex marriage is largely irrelevant to the territory. Second, prevailing societal views about marriage are coterminous with such history or tradition. This article argues that while the Court of Appeal’s judgment rightly underscores the uniqueness of Hong Kong’s marriage history, it remains wedded to an ahistorical understanding of the local marriage system. This article then presents a survey of marriage traditions that existed for most of the territory’s past and posits that a more nuanced understanding of local history actually supports, rather than undermines, Leung Chun Kwong’s case.

Marco Wan on Hong Kong's Unique Traditions of Marriage and the Same-Sex Civil Servant's Case (SCMP)

"Gay marriage would be more at home among Hong Kong's traditions than court suggests"

Marco Wan

South China Morning Post

7 June 2018

In the latest twist in the saga of same-sex unions in Hong Kong, the Court of Appeal ruled against Angus Leung Chun-kwong, the gay civil servant who asked the government not to discriminate against him by granting him and his male partner, whom he married abroad, spousal benefits, and allowing them to file their taxes jointly. The court notes that Leung’s claims were inconsistent with the local culture, history and tradition upon which the contemporary understanding of marriage is built.

     However, a closer look at Hong Kong’s unique traditions of marriage suggests that these traditions actually support Leung’s case. Decades of gay rights litigation have taught us that the past that gets evoked to resist change is often more imaginary than real, and any use of it, whether by courts, politicians or activists, should be scrutinised.

    In ruling against Leung, the court underscores that Hong Kong’s prevailing socio-moral values militate against any official recognition of his marriage. Crucially, it emphasises that such societal views are primary considerations for both the court and the government because they are derived from long-standing local practices and beliefs associated with marriage. Granting spousal benefits or joint tax assessment to gay and lesbian couples, then, would be tantamount to going against the history of marriage in Hong Kong.

     The court is insistent on this point: phrases like “the Hong Kong context”, “history”, “tradition” and “long usage” appear repeatedly in the judgment.

     This inward turn towards the city’s supposedly unassailable lineage also underpins the court’s sidelining of developments in the long line of pro-gay jurisdictions around the world, including that of Britain, the United States, Taiwan and European countries like France and Germany... Click here to read the full article.

Marco Wan Comments on the Hong Kong Civil Servants Same Sex Benefits Case (HKFP & SCMP)

"Gay rights only attainable in court, as Hong Kong remains passive to ensuring equality, says LGBT advocate"
Ellie Ng
Hong Kong Free Press
2 May 2017

LGBT rights advocate Jimmy Sham Tsz-kit says Hong Kong’s gay community can only hope for social change through the judicial system because the government is passive in tackling sexual orientation discrimination.

     “Gay rights can only be fought in the courts. The government rarely takes the initiative to review its policies and ensure equal rights for gay people,” Sham, of civil group Rainbow Action said on an RTHK programme on Tuesday.

     Sham’s remarks came after a landmark decision at the High Court last Friday, which ruled that gay civil servants are entitled to welfare benefits for their spouses. The ruling will take effect on September 1.

     “The gay community is happy about the ruling,” Sham said. “At least it is better than having no change at all.”

     But he said there is still a long way to go for attaining real equality for gay people. For example, he said, many LGBTQ people face “serious discrimination” at their workplaces...

     Marco Wan Man-ho, an associate professor of law at the University of Hong Kong, said the difference is owing to the fact that Hong Kong’s tax law states clearly that marriage is only between a man and a woman, while the Civil Service Regulations stipulate that “spouses” may enjoy welfare benefits without defining the term.

     The court held that it would be impossible for gay couples to enjoy welfare benefits if the term refers only to heterosexual partners, thereby constituting discrimination on the grounds of sexual orientation, Wan said... Click here to read the full article.

"Leader of Hong Kong Christian group slams landmark ruling on spousal benefits for gay civil servants"

Nikki Sun

South China Morning Post

2 May 2017

The leader of a Hong Kong religious pressure group has accused a judge of exceeding his authority by wrongly interpreting the meaning of marriage in the city, following a landmark ruling that allows a gay civil servant to claim the same benefits for his spouse as his heterosexual colleagues.

     Others, however, feel that the government should offer even more legal protections to the gay community. During a heated debate on an RTHK radio programme on Tuesday, Rainbow Action spokesman Jimmy Sham Tsz-kit called for the implementation of an anti-discrimination law...

     Marco Wan, associate professor at the University of Hong Kong’s law school, said the case did not challenge the definition of marriage. Instead the judicial review focused only on whether the act of not granting benefits to civil servants’ gay spouses was lawful... Click here to read the full article.

Marco Wan also appeared as a panelist on RTHK Radio 3's morning programme, Backchat, on 5 May 2017.  The discussion was titled "Recognition of Same-Sex Marriage in Hong Kong" with the following introduction:

"Has Hong Kong moved a step closer to recognizing same sex marriage after a landmark court judgment upheld the right of a gay civil servant to claim the same benefits for his spouse as his heterosexual colleagues. The judge in the case did emphasize that he was not ruling on whether same sex marriages should be allowed in Hong Kong, describing that controversial question as a matter which should be decided by Legco not the courts. But some Christian groups are not convinced and have angrily denounced the judgment, in some cases using extremely strong language. So what do you think? Is Hong Kong ready to recognize same sex marriages?"

  Click here to listen to the programme.