Hong Kong should brace itself for tough questions over anti-discrimination laws

Bernard Chan says some proposals by the Equal Opportunities Commission to update our legislation are likely to run into strong opposition, such as the call for government agencies to be bound by the laws against racial discrimination

PUBLISHED : Thursday, 14 April, 2016, 11:16am
UPDATED : Wednesday, 28 September, 2016, 8:46am

Dr York Chow Yat-ngok stepped down as head of the Equal Opportunities Commission two weeks ago. One of his final duties was to release a set of proposals to extend our anti-discrimination legislation. The report recommends over 70 reforms, 27 of which are described as high priority.

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Looking through the report, it is surprising just what is still missing from our anti-discrimination laws. One minor example: there is no protection from discrimination against people with guide dogs. This may be understandable, as guide dogs are relatively new in Hong Kong. But their numbers are growing, and there has already been a case where a bus driver would not allow a guide dog to board the vehicle.

Another example is the lack of protection for women who breastfeed. Since breastfeeding is hardly new – and nursing women have long complained about being treated badly – this is overdue.

These are probably not at all controversial. By contrast, some other reforms could run into opposition.

Women do not have a legal right to return to their previous (or an equivalent) job after maternity leave. Some employers claim that maternity leave rights cause them inconvenience and extra costs. Yet, such discrimination holds woman back economically, and reduces their incentive to have children. Hong Kong lags behind many developed economies in this area, and I would guess we will see some progress here.

One of the biggest gaps is that government agencies and public authorities are not always bound by the government’s own laws against racial discrimination. The commission’s report discusses this in some detail.

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There are all sorts of practical issues here. To take a small example, is it economical to make all publicly funded vocational training available in English as well as Cantonese? But the report also presents policymakers – and indeed the whole community – with a very significant challenge: does the government have a duty to actively promote equality and fight discrimination? At the moment, our system essentially sees individuals, or victims, as mainly responsible for fighting discrimination.

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This report asks other quite difficult questions about extending the concept of racial discrimination to include nationality and residency. One of the biggest issues is discrimination against mainlanders. The statistics about such discrimination in employment and other areas are quite shocking: 60 per cent of mainlanders claim to have received inferior treatment from service providers like retailers.

Some people believe that people cannot discriminate against their own ethnic group, though campaigners have lots of evidence to show this is incorrect. Others fear that protection for mainlanders from racial vilification would threaten freedom of expression – by banning comments about bad behaviour by mainlanders. This is also wrong, and it illustrates how future anti-discrimination reforms may run into problems with public opinion.

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To give an idea how complex this subject is, the arguments can go in the other direction. Some businesses fear that offering special discounts to tourists would count as discrimination along residency lines – in this case against the local majority.

Another thorny issue is extending the scope of protection based on family status. For example, this would mean equal rights for single people in applying for public housing. It means guaranteeing equal treatment for unmarried but cohabiting couples, which would cover areas like employment benefits, inheritance rights and access to fertility treatment. And it inevitably leads to questions about same-sex relationships, which are sensitive in some quarters.

The Equal Opportunities Commission is 20 years old this year, and the struggle against discrimination goes back much further. The initial legislation from the late 1990s on sex, family status, disability and race discrimination was important, but a lot remains to be done.

People concerned with equality have been full of praise for York Chow on his retirement. His successor, Professor Alfred Chan Cheung-ming, still has many challenges ahead.

Bernard Chan is a member of the Executive Council