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“Businesses should note that such benefits and policies can be very important to some individuals who will specifically seek employment with organisations that offer such benefits,” says Adam Hugill, Partner at Hugill & Ip Solicitors.
When it comes to workplace diversity and inclusion, LGBTQ+ rights are a crucial yet barely talked topic. But the latest developments in the region highlight the necessity of bringing this issue onto HR’s radar.
Recently, Thailand became the third jurisdiction in Asia and the first in Southeast Asia to legalise same-sex marriage, following Taiwan and Nepal.
Additionally, in Hong Kong, landmark rulings from the Court of Final Appeal also has significant implications for companies in the city.
As the recognition of same-sex marriages grows, employees in same-sex relationships who are legally married abroad might now seek equal rights and benefits in the workplaces as their heterosexual counterparts. This underscores the need for businesses to review their policies to ensure workplace inclusivity.
To shed light on this topic, Adam Hugill, Partner at Hugill & Ip Solicitors (pictured below), speaks exclusively with HRO’s Tracy Chan about the challenges that HR in Hong Kong may face when addressing same-sex marriages performed abroad, and discusses proactive steps that companies can take to create inclusive workplace policies that support LGBTQ+ employees.
Q: With Thailand’s Marriage Equality Bill taking effect, what is the current legal landscape for same-sex couples in Hong Kong? Are there any existing frameworks that address equal marriage rights?
During late 2024, Thailand’s government passed into law the right for same-sex couples to marry, now effective since on 22 January 2025. It provides same-sex couples with full legal, financial, and medical rights, as well as adoption and inheritance rights.
In passing same-sex marriage legislation, Thailand has become the first jurisdiction in Southeast Asia to legalise gay marriage and the third in Asia; after Taiwan passed similar legislation in May 2019 and Nepal’s Supreme Court issued an interim order allowing same-sex couples to register their marriages in June 2023. (The position in Nepal, however, is still somewhat uncertain until specific legislation is passed).
In September 2023, the Hong Kong Court of Final Appeal (“CFA”) handed down a landmark judgment in Sham Tsz Kit (Jimmy) v. Secretary for Justice [2023] HKCFA 28 allowing the appeal of Jimmy Sham. By a majority of 3:2, the Government was found to be in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions). The CFA then gave the Hong Kong Government two years to develop a mechanism that recognises same-sex relationships.
Following a question by Regina Ip in the Legislative Council in May 2024, Secretary for Constitutional and Mainland Affairs Erick Tsang replied that he was "…conducting detailed study with the Department of Justice and relevant bureaux on the mechanism relating to the legal recognition of same-sex relationship, thresholds of recognition, eligibilities, conditions, how to effectively avoiding abuses of the alternative framework, etc, as well as the rights and obligations arisen, including "core rights" and "supplementary rights", and formulating implementation.”
Notwithstanding the above, and with the CFA’s deadline now less than nine months away, there has not been any official public consultation nor any further information on the Governments progress.
Although full equal marriage rights have not – yet – been granted in Hong Kong, through a series of CFA judgments, rights have been granted to couples registered in same-sex marriages overseas in respect of:
(i) dependant visas;
(ii) joint tax filing;
(iii) public sector employee benefits;
(iv) housing; and
(v) inheritance rights.
Q: From a company perspective, what challenges might HR teams in Hong Kong face in addressing same-sex marriages performed abroad? How can organisations navigate these complexities effectively?
While many international employers champion inclusivity and equality, they face difficulties where the rights granted to same-sex couples overseas are not recognised in local jurisdictions. This disparity can lead to inconsistencies in employee benefits within the whole organisation, such as healthcare, spousal allowances, and family leave, creating frustration and uncertainty among employees.
In the absence of wider legal recognition of same-sex marriages in Hong Kong, we have seen some organisations struggle with how to apply benefits and implement policies that are typically afforded to heterosexual married couples and how to navigate the local landscape while striving to uphold their values of diversity and inclusion.
Crafting inclusive workplace policies that address the needs of same-sex couples can therefore be challenging, especially in a legal environment that does not fully endorse marriage equality. Even employers that wish to adopt highly inclusive policies or multinational companies that wish to align local practices with global policies can face difficulties.
One core area that may present difficulty is medical insurance. Although the landscape has greatly improved since the case of Angus Leung v Secretary for the Civil Service [2019] HKCFA 19 (which specifically afforded medical benefits to his same-sex marriage spouse but only applies to public sector civil servants), some insurers do not extend the same benefits to same-sex spouses and their families as they do to heterosexual couples or as part of their standard policies – citing the lack of legal recognition in Hong Kong. Again, while diminishing in frequency, there are still instances where claims for medical coverage for spouses have been denied based on the lack of legal recognition of overseas same-sex marriages.
Parental and family leave policies also present difficulties. Hong Kong grants 14 weeks paid matrimonial leave for birth mothers but only five days paid paternity leave for biological fathers. Hong Kong laws do not provide for adoption or parental leave.
For example, in the case of male same-sex families who might have children via adoption or surrogacy, neither partner may qualify for any leave, or one partner may qualify for only five days’ paternity leave on the basis of his genetic fatherhood. This is rarely sufficient for a family whose life has been turned upside down with the arrival of a child (and, in the case of a child placed via adoption in Hong Kong, perhaps with literally only a few days’ notice).
We have seen a number of cases where couples in same-sex relationships have changed employers specifically due to the lack of any parental leave policies in the event they choose to start families via adoption or surrogacy.
Medical insurance again becomes an issue where it extends to families, but due to the lack of any formal recognition, children of same-sex families may find that they cannot receive coverage. For instance, since a same sex couple cannot jointly adopt, if one of the parties is working and his/her employer has in place excellent family health care, but that person is not the lawful parent of the child, the child is unlikely to be covered under the employer’s policy.
Q: Given that same-sex marriage has not yet been legally recognised in Hong Kong, for employees in same-sex relationships and legally married in jurisdictions like Thailand, how should organisations in Hong Kong adapt the company policies to address their rights to spousal benefits, such as healthcare, insurance, and leave entitlements? Are there any legal risks for companies that fail to do so?
It is up to each employer if they wish to offer benefits or implement policies that support employees in same-sex marriages, their spouses and any children. Businesses should note that such benefits and policies can be very important to some individuals who will specifically seek employment with organisations that offer such benefits.
However, as of now, the Sex Discrimination Ordinance (Cap. 480) and Family Status Discrimination Ordinance (Cap. 527)'s protections on the basis of “marital status” and/or “immediate family member” do not explicitly apply to same-sex marriages. There is, therefore, very limited legal redress against private sector employers that do not offer such benefits. While many organisations have in place equal opportunity and diversity, equity and inclusion policies, rarely are these contractual and, therefore, actionable against the employer.
Q: How can organisations in Hong Kong proactively create inclusive workplace policies that support LGBTQ+ employees? What kind of training should they equip their HR teams and employees with?
It is widely recognised that organisations that foster inclusivity and diversity, enhance employee morale, strengthen an organisation's reputation, increase productivity and improve staff retention.
Organisations in Hong Kong can take several proactive steps to create inclusive workplace policies that support LGBTQ+ employees.
- Develop anti-discrimination policies – Implement clear anti-discrimination and harassment policies that explicitly include protections based on sexual orientation and gender identity.
- Provide inclusive benefits – Endeavour to provide equal benefits for same-sex partners, including health insurance, parental leave, and family-related benefits.
- Issue diversity and inclusion statements – Create a public commitment to diversity and inclusion that emphasises support for LGBTQ+ employees. Such a commitment could even be offered by the employer as a contractual term of employment!
HR teams should be aware of the importance of inclusivity in the workplace and think deeply about their current benefits and policies, examining them to ensure that they are genuinely inclusive and sufficiently flexible to support same-sex families.
If the Government meets its deadline to develop a mechanism that recognises same-sex relationships by September 2025, this is something that all organisations in Hong Kong will need to quickly adapt to and address – now is the time to start.
Photo / Provided (Adam Hugill, Partner, Hugill & Ip Solicitors)
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