Next, Legco must uphold rights of sexual minorities
Kerry Kennedy says our lawmakers - and church groups - should not tolerate discrimination
We need to be grateful for Hong Kong's independent judiciary. The Court of Final Appeal showed recently that it is prepared to act on minority rights where the government and even the Legislative Council have refused to do so. The decision to allow a transgendered person to marry her partner of choice was based on rights guaranteed in the Basic Law and the Hong Kong Bill of Rights.
This is a victory not only for human rights but also for judicial decision-making. The court acted on principle rather than social consensus, based on the argument that reliance on the absence of a majority consensus as a reason for rejecting a minority's claim is "inimical in principle to fundamental rights".
The court decision will not come into effect for another 12 months, to provide time for the government to amend the marriage laws.
Of course, it is up to the Legislative Council to take up this challenge and it is not yet clear whether it will do so. Even though the decision of the Court of Final Appeal has been welcomed by the Equal Opportunities Commission and the International Commission of Jurists, Legco is not known for its support of minorities, and in particular has shown that support for sexual minorities is low on its agenda.
It often seems that the democratic camp prefers to waste its time "filibustering" than taking aboard important social issues that affect the lives of Hong Kong people. While the Court of Final Appeal has scrapped social consensus as the arbiter of rights, this principle is alive and well in the Hong Kong community.
The response to the court's decision has been slow, but eventually the Catholic Church expressed its concern that the ruling would pave the way for same-sex marriage. This, of course, was a complete misunderstanding of the decision, which simply affirmed the gender identity of a transgendered person who had undergone sex reassignment surgery.
Church officials expressed their concern about the sanctity of marriage between a man and a woman. Yet this was exactly what the court decision had affirmed by recognising the validity of sex reassignment surgery.
But then came the subtext: gender is God-given and cannot be changed. The court disagreed, many in society disagree, and for those who worship a different god or no god at all, the argument has no basis in logic or reason.
Yet churches continue to insist that their views should be privileged. Earlier this year, Hong Kong's evangelical church groups staged a protest because there was some suggestion that the government might launch a public consultation on the issue of discrimination against sexual minorities. One of the protesters agued that "if the government resorts to legislative means to resolve any social disputes on homosexuality based on the grounds of morality, it will only undermine the freedom of expression of those people who don't accept homosexuality". That is, religious groups appear to be afraid that if legislation is enacted protecting sexual minorities, churches and their members will no longer be able to discriminate against them. As opposed as this may appear to the general message of Christianity, Christians wish to retain the right to discriminate. By refusing to launch a public consultation on rights for sexual minorities, it seems lawmakers agreed with the protesters.
Unfortunately, Hong Kong is not alone in preserving the right to discriminate. There have recently been protests internationally against various aspects of human rights for sexual minorities. In France, this took the form of opposition to same-sex marriage, while in Australia religious groups have sought assurances from the government that the new Human Rights and Anti-Discrimination Bill won't prevent them from actively discriminating against sexual minorities.
What is more, Australian Prime Minister Julia Gillard has assured religious groups that they may discriminate where it "is necessary to avoid injury to the religious sensitivities of adherents of that religion". This means, for example, that church schools do not have to employ sexual minorities, and they may fire them at will. Should discrimination be allowed in a democracy?
Given the Basic Law, the Hong Kong Bill of Rights and the various international covenants on human rights , the application of universal human rights seems to be well enshrined in local legislation and international aspirations. The Court of Final Appeal has come down on the side of these legal instruments to support the marriage rights of transgendered people.
There should be no discrimination in a democracy - churches, and government, need to respect this value. Churches are not being asked to do what is against their conscience; and it is time they extended the same right to others.
Professor Kerry Kennedy is co-director of the Centre for Governance and Citizenship at the Hong Kong Institute of Education