Court strikes down criminal provisions against gay sex
Hong Kong strikes down four criminal provisions that applied only to gay sex. An activist had challenged them.
On 30 May 2019, Hong Kong's High Court delivered a ruling that activists had long been waiting for. Judge Thomas Au declared four criminal provisions unconstitutional that applied exclusively to sex between men, and struck them down with immediate effect. He left three other provisions in place but reinterpreted them: they have since applied equally to men and women.
The background lies in British colonial times. The city's highest court had already struck down the old sodomy law in 2007, but remnants remained in criminal law. Men could be prosecuted for acts that were completely legal for heterosexual and in part also for lesbian couples. These included procuring gay sex or "gross indecency" between men outside a private setting.
The impetus came from activist Yeung Chu Wing, who challenged seven provisions in 2017. For four of them, the Department of Justice did not even object. The judge relied on the principle of equality in the city's Basic Law and the Hong Kong Bill of Rights. There were no comparable offences between women or between a man and a woman, so the unequal treatment was discriminatory. Minors remained protected, because gender-neutral rules apply to them.
The ruling was part of an international trend. In 2018, courts in India and in Trinidad and Tobago had already struck down similar colonial laws, and Botswana followed in 2019.
Tommy Noel Chen of the group Rainbow Action said they had been fighting for these changes for twenty years. Going to court should never have been necessary, but the government had always refused or delayed. The timing was also explosive: only a day earlier, the government had defended its refusal of marriage and partnership for same-sex couples before the same court.