Hong Kong ruling on spousal benefits for gay partner reveals the marriage paradox
John Chan says the granting of benefits to a same-sex partner while denying joint tax assessment is a puzzling ruling that highlights the complex moral and ethical issues involved
A High Court Judge at the Court of First Instance has ruled that the Civil Service Bureau’s stance of denying an officer’s same-sex marriage partner the benefits enjoyed by the spouses of heterosexual colleagues was “indirect discrimination”.
In delivering the unprecedented decision in a judicial review brought by a senior immigration officer, the judge rejected the bureau’s claim that the secretary had a justifiable aim “to act in line with the prevailing marriage law of Hong Kong” and not to “undermine the integrity of the institution of marriage.”
Foreign marriages are recognised in Hong Kong, including those conducted in New Zealand, where the same-sex marriage of the officer concerned took place. The paradox of the case is that same-sex marriage is not treated as legal under local marriage law.
The Marriage Ordinance says every marriage shall be a Christian marriage or its civil equivalent, implying a formal ceremony recognised by law and involving the voluntary union for life of a man and a woman, to the exclusion of all others. Hence, marriages under Hong Kong law are a union of one man and one woman; and, monogamous by nature.
Under Civil Service regulations, family members of a civil servant who are entitled to benefits include their spouse and children. What is puzzling about the judge’s ruling is that he adopted the definition of marriage as being that between a man and a woman, as defined in the Inland Revenue Ordinance, in rejecting the officer’s judicial review against not being allowed joint assessment of tax returns with his spouse.
However, when it came to his ruling in the same judgment on benefits afforded to a “spouse” of a civil servant, his view was that to deny a partner in a same-sex marriage such benefits would be indirect discrimination based on sexual orientation, which is against the Basic Law and the Hong Kong Bill of Rights.
Article 19(2) of our Bill of Rights, which is identical to Article 23 paragraph 2 of the International Covenant on Civil and Political Rights, states that the right of men and women of marriageable age to marry and found a family shall be recognised. Before same-sex marriage became legal in New Zealand in 2013, the UN Human Rights Committee – in a case brought against the country’s refusal to recognise same-sex marriage – ruled in 2002 that “the treaty obligation of states parties stemming from Article 23 paragraph 2 of the Covenant is to recognise as marriage only the union between a man and a woman wishing to marry each other”.
It further held that mere refusal by a state party to provide for marriage between homosexual couples had not violated any relevant covenant articles, including Article 26, which in essence stipulated that all people are equal before the law and entitled without any discrimination to equal protection of the law.
The recent court decision in Hong Kong amounts to equating the status of a “partner” in a same-sex marriage not yet recognised by law to that of a “spouse” , namely “a husband or a wife”of a marriage, as we understand it under Hong Kong’s existing marriage law. The question then is whether one single judge sitting in court is the appropriate forum to decide such an important moral and ethical issue.
One example that can be looked at is that, before the enactment of the Parent and Child Ordinance in 1993, children born outside wedlock did not enjoy same rights and privileges as the legitimate child of a family. Illegitimate children only started to enjoy the same rights and privileges after the law was changed in 1993 to give such children equal status.
The change of such a law touches upon highly controversial moral and ethical issues, which require extensive public consultation.
Whether we should equate the status of “husband and wife” in a traditional marriage to that of “same-sex partners” or “homosexual couple” in a same-sex marriage goes beyond mere legal definition and reinterpretation of the relevant terms. There are also moral and ethical issues for the legislature to consider and decide after extensive public consultation.
Yet, the fact is it has in effect been decided by a single judge based solely on the debatable grounds of indirect discrimination based on sexual orientation.
John Chan is a practising solicitor and a founding member of the Democratic Party