by Erich Hou, Lecturer in Law
Just days after same-sex marriage was legalised in neighbouring Taiwan, Hong Kong’s Court of Final Appeal handed down its own landmark decision. A judgment which has – arguably – laid the first stones in the yellow brick road for further recognition and legalisation of same-sex marriage across Asia.
But the June 6 ruling was not a challenge against marriage laws in Hong Kong. It simply granted the application of spousal benefits and joint tax assessment to gay civil servant Angus Leung and his British husband Scott Adams, who were married in New Zealand in 2014. The significance of this case lies in the fact that it pierces the “Asian values” argument against same-sex marriage and relationships in the region.
This argument basically recognises Confucian values which sacrifice individual freedom in favour of filial piety, or loyalty towards family, corporation, government or nation. Though based on ancient principles, this particular set of values has been particularly promoted by political leaders and intellectuals since the late 20th century as an alternative to the Western ideals that some think are being imposed on the region.
Resistance to changing LGBT+ rights across different Asian countries mostly centres on Asian values arguments. These “values” have been used repeatedly in Asia to resist the so-called Western “postcolonialism” of LGBT+ rights. Malaysian prime minister Mahathir Mohamad, for example – a promoter of Asian values during the 1990s – has repeatedly made comments similar to this from 2018: "In Malaysia there are some things we cannot accept, even though it is seen as human rights in Western countries … We cannot accept LGBT marriage between men and men, women and women."
But by arriving at this decision the Hong Kong court has essentially pierced this argument. It pointed out that protection of the institution of heterosexual marriage is not the business of the state. The government’s job is to ensure “efficient administration of government” and “the raising of revenue through the taxation system”. Essentially, this confirms that differential treatment between same-sex and opposite-sex couples without justification in Hong Kong cannot be allowed, no matter what society’s “values” are.
The problem with values
The Asian values argument against same-sex marriage is based on the presumption that there is only one set of Asian values, the one endorsed by the ruling class. But this oversimplified view of society is far from reality – it would be a fallacy to assume that the cultures of Asian countries are stagnant and unchangeable.
In fact, the region has had sexual diversity for many centuries. Journalist Sarah Ngu has recently suggested (and researchers have previously written) that relationships between consenting same-sex adults have existed in China for thousands of years – although whether same-sex marriage has ever been embraced in China is debatable.
Fortunately, not all believe the Asian values argument. Even Mahathir’s daughter, Marina, has a somewhat different interpretation from her father of LGBT+ rights, thanks to her experience of working with the LGBT+ community in Malaysia. She argues that “LGBTs just want the same rights as everyone, nothing more”.
While it may take another couple of generations to shift views entirely across the region, already the argument based on cultural relativism against same-sex marriage is becoming less and less convincing. And moves like the one recently seen in Hong Kong are now happening in other Asian countries. In Japan, gay and transgender partnerships are being increasingly recognised at regional levels. Vietnam has repealed its heteronormative definition of marriage and Thailand became the first Asian country to recognise same-sex civil partnerships in early 2019.
While Hong Kong is a relatively small city, it is already home to many international marriages and intercultural relationships, straight and gay. The success of Leung and Adams perhaps comes as no surprise, but it could very well be a catalyst for LGBT+ rights reform in neighbouring China.
Following Taiwan’s legalisation of same-sex marriage, renowned Chinese scholar and activist Li Yinhe noted: "People say the western sex culture is not like ours. Their social custom is not like ours. These are all excuses. If Taiwan can legalise same-sex marriage, then it proves that same-sex marriage can be accepted by Chinese culture and in Chinese societies."
With this “if Taiwan can, so can we” attitude already changing the way some in China think, the Leung case may very well push the cause further. China’s increasing influence and more frequent and closer ties in the Pearl River Delta – the region where the Pearl River flows into the South China Sea, near Hong Kong which has become rapidly urbanised in recent decades – will likely shift the country’s culture, and this will have a ripple effect across the whole of Asia.
While the Leung case may appear to be a simple tax ruling for Hong Kong, it could very well be a catalyst for a new chapter in LGBT+ rights across the whole continent.