Written Submission by Mr Vince Ma
Written evidence from Mr Vince Ma (HUM0002)
About this report
1. This report is about the Hong Kong LGBT (Lesbian, Gay, Bisexual & Transsexual) marriage obstacles and unfairness.
Queen’s Commonwealth Charter
2. According to the Queen’s Commonwealth Charter Part II: Human Rights, the Queen represented the Commonwealth to the citizens: We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds. [1] Commonwealth citizens of LGBT rights should be protected under the charter, logically includes the right of marriage.
Hong Kong British National (Overseas)
3. The Hong Kong population of British National (Overseas) Citizen is nearly 3.5 million. [2] The report mentioned “the VAST MAJORITY of whom live in Hong Kong”. The identity British National (Overseas) should be one of the major classes of British nationality under British nationality law. Holders of this nationality are British nationals and Commonwealth citizens. [3] This includes the LGBT minorities.
Hong Kong Civil Partnership and Marriage situation for the LGBT Group
4. At present, Hong Kong Marriage Registries refuse to process and register Civil Partnerships and Marriages for the Lesbian and Gay couples, as the Marriage Law of Hong Kong for the LGBT is not established by the Hong Kong Legislative Council yet.
5. Consular Marriage[4] - Hong Kong British Nationals (Overseas) and British Nationals cannot register marriages in the Hong Kong British Consulate-General, as Hong Kong is not in the same-sex consular marriage country and territory list. However, China is one of the countries that able to register marriages.
6. Unfavourable situations may happen and arise in Hong Kong when the LGBT couples attempted to register their marriages in Hong Kong and overseas.
Case Study 1: Marriage of Brian Davison and Scott Chang
7. At least one gay couple (one British National and one Chinese National) registered their marriage successfully in Shanghai, China through the UK Consulate-general. [5]
8. According to the report, same-sex marriage and civil union are not permitted in China. The country’s marriage laws explicitly define marriage as a union "between a man and woman". However, they perform their ceremony on China soil but under British jurisdiction.
9. The British Consulate-General Hong Kong, however, cannot perform these ceremonies nor issue marriage certificates due to an objection lodged by the HKSAR government.
10. Harry Harrison, an illustrator for South China Morning Post, drew a satire illustration to explain the policy of the Hong Kong British Consulate-General: Two men were refused registration of their marriage by the staff. The conversation bubble of the staff stated: Not Without New Passports, Sir. The Illustration understated that only couples whose are British Citizens (or in refer to Case 1, one British National and one Chinese National) can register their marriage in China, the under meaning of this is: the policy is not for local Hongkongers who just hold the British National (Overseas) Passports [6]
Case 2: “W” v Registrar of Marriages[7]
11. From reference, although the transsexual woman “W” born as a male, and attempt to register her marriage to a man via the Hong Kong Marriage Registry, her registration was refused due to the registry’s definition of marriage is between “a natural man and a natural woman”. She won her constitutional right to marry at the Court of Final Appeal on 13 May 2013.
12. The Court of Final Appeal however issued a stay to put the decision of letting “W” to marry her boyfriend on hold for a year to allow time for the Hong Kong Government to amend the law.
13. On 17 July 2014, by court order only, the registrar should accept and validate the marriage applicant’s new sex, after he/she had completed a full package of sexual reassignment surgery, and his/her new sex is recognized by the Hong Kong Immigration Department. Unfortunately, at present the amendment process of the law by Hong Kong Legislative Council is still struggling, especially transsexuals whose have no surgery, or still undergoing a part of sexual reassignment surgery were still at risk of rejection. [8] The registry’s definition of marriage is still between “a man and a woman” today.
The Hong Kong British Consulate-General
14. The Hong Kong British Consulate-General supports and promotes LGBT equality and human rights. [9] However, it is hypocritical if they were unable to help to register formal, and LGBT consular marriages, especially under Case 1 situation; it has proven contradictory to their excuses. [10] Because of British jurisdiction on Hong Kong soil, The Hong Kong British Consulate-General should able to do marriage registration, even the HKSAR Government oppose it.
15. Under the current Hong Kong laws, LGBT marriage status is not recognized by the HKSAR Government, and the LGBT marital status cannot gain social status and benefits like tax credits. However, free to marriage is a human right, and couples to have their marriage to become legit in their originated country and recognized by the public is also a human right. Under Case 1, it is not important and a must to link their marriage rights to their local government laws & policies.
16. Hongkongers who have identities of either British Citizens or British Nationals (Overseas) should be able to register their marriages under the British Marriage current laws. It should be regard as an internal affair of the British Government that no other countries should intervene.
17. As mentioned in Case 2, if “W” is a British National, there may be a workaround for her to register her marriage at the British Consulate-General Hong Kong.
18. The British Consulate-General Hong Kong is the largest British consulate-general in the world and is bigger than many British embassies and high commissions aboard. [11] Recently the British Consulate-General is no longer a regional passport processing centre, as the passport issuing service is now centralized in the UK. It is a waste of land and resources, and ridiculous if the British Consulate-General Hong Kong cannot provide a FULL Embassy Services.
Conclusions and Remedies
19 At present, HongKongers those are LGBT British Nationals are still unable to register marriage under the Hong Kong Marriage Registries, recognized by the Hong Kong Government, and cannot register their marriage freely at the British Consulate-General Hong Kong, in Hong Kong soil under the British jurisdiction.
20. From the above, FCO fails to implement and comply the Queen’s Commonwealth Charter and the UK Government policies. The marriage rights of the LGBT of Hong Kong British Nationals are exploited.
21. The British Consulate-General Hong Kong should resume and promote the Consular Marriage Services, as an alternative choice for Hong Kong British Nationals, to register their marriages legally under the British Marriage current laws.