Hong Kong must catch up in protecting rights of sexual minorities

Cliff Buddle says urgent law reform is needed to ensure they don't have to battle for their rights in court

PUBLISHED : Wednesday, 13 May, 2015, 3:03pm
UPDATED : Wednesday, 13 May, 2015, 6:49pm

A lesbian couple will go to court on Thursday to fight for people in same-sex relationships to be entitled to dependency visas. Once again, our courts are to be asked to rule on a sensitive and controversial issue. The case concerns a professional woman who has worked in Hong Kong since 2011 and her partner, who is seeking a dependency visa. The Immigration Department refuses to recognise same-sex partners as qualifying for such visas. This means the woman seeking a dependency visa can only stay in Hong Kong as a tourist. She is not permitted to work here and has to leave every six months. Nor will she be eligible for permanent residency.

Lawyers for the couple will argue that the Immigration Department's approach is discriminatory and unlawful. If the couple were heterosexual, they say, a dependency visa would have been granted. The legal merits of the case, which will be contested by the government, are a matter for the judge to decide. But it would be better if there was no need for sexual minorities to have to fight for such rights in court.

This is not the first case of its kind. In 2005, in a landmark judgment, Mr Justice Michael Hartmann ruled that the Crimes Ordinance unfairly discriminated against homosexual men by outlawing buggery by or on men under 21. Then, in 2013, the Court of Final Appeal declared unconstitutional a government refusal to allow a transsexual woman to marry her boyfriend.

The government moved to amend the law in response to that court decision but in doing so sought to embed a requirement for transsexuals to undergo full sex reassignment surgery before being allowed to marry. Such a harsh restriction flies in the face of the top court’s recommendations and an appeal by the UN for governments not to impose such requirements. The proposed law was voted down by legislators. Now, another court challenge involving a transsexual man, is on the way.

There is an urgent need for wholesale changes to the law to protect sexual minorities from discrimination and to ensure that their rights are upheld. This year should mark a turning point.

The Equal Opportunities Commission has asked the Gender Research Centre at the Chinese University of Hong Kong to study discrimination against lesbian, gay, bisexual and transgender people. A report is expected in the second half of this year.

Meanwhile, an EOC report on public views submitted for a review of our existing discrimination laws, on gender, family status, disability and race, is also expected in 2015. The commission's recommendations will be due by the end of the year.

There will, no doubt, be differing views and strong opposition from religious groups to any move to liberalise the laws relating to sexual minorities.

But this is an area in which the government needs to show leadership and courage. Hong Kong is falling behind other parts of the world in recognising and giving effect to such rights. At stake is dignity and the ability to lead a life free from discrimination.

Rather than leaving such important matters to be dealt with piecemeal by the courts, the government should use the ongoing EOC studies as the launch pad for significant reforms.

Cliff Buddle is the Post's editor, special projects