LETTER OF THE LAW
Column
by

Conflicts between protecting rights for Hong Kong’s LGBTI people and freedom of religion can be resolved

Opposing views on legislation against LGBTI discrimination can be mitigated as not all religious adopt negative attitudes towards LGBTI people, and religion-related exemptions can be included in the new law

PUBLISHED : Monday, 09 January, 2017, 5:54pm
UPDATED : Tuesday, 10 January, 2017, 6:13pm

On November 28, the European Union Office to Hong Kong and Macau, the Chinese University of Hong Kong and the consulate general of Germany co-organised the international conference “LGBTI Rights and Freedom of Religion in Hong Kong and the European Union”, with support from the Equal Opportunities Commission.

Religious and civil society experts from Ireland, the Netherlands, Germany, Taiwan and Hong Kong discussed issues faced by lesbian, gay, bisexual, transsexual and intersex (LGBTI) people in Hong Kong and the European Union. The discussion focused on how to eliminate discrimination based on sexual orientation, gender identity and intersex (SOGII) status, and how to foster acceptance for diversity, particularly among religious communities.

Freedom of religion weighs heavily on the minds of some opponents of legislation against discrimination on the grounds of SOGII in Hong Kong. Some people are especially concerned about the possible loss of freedom in their religious practice and expression of “moral conscience” if there were to be such a legislation. It is also apparent in some European jurisdictions that some religious groups have been the strongest public oppositional voices.

However, there is no irresolvable conflict between protecting equal rights for LGBTI people and freedom of religion.

The way Hong Kong tackles issue of rights for same-sex couples will test its claim to be Asia’s World City

First and foremost, it should be noted that not all religions have negative attitudes towards LGBTI people. In Hong Kong, a campaign called the “Covenant of the Rainbow: Towards a Truly Inclusive Church” was initiated by Christian organisations, local churches and theological student fellowships from diverse backgrounds to highlight that they are LGBTI-inclusive. The Blessed Minority Christian Church, an LGBTI-friendly fellowship, is also celebrating its 25th year of operation in Hong Kong.

Second, even if there are legitimate concerns about freedom of religion in legislating against discrimination on the grounds of SOGII, religion-related exemptions can be included in the new legislation. Existing anti-discrimination ordinances currently incorporate related exemptions. For example, Part 1 of the Sex Discrimination Ordinance does not apply “to employment for the purposes of an organised religion where the employment is limited to one sex so as to comply with the doctrines of the religion or to avoid offending the religious susceptibilities common to its followers”. The Race Discrimination Ordinance provides a similar religious exemption.

According to the comparative legal review in the Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status, such religious exemptions are also common in different jurisdictions around the world. However, according to the “genuine occupational requirement” principle, the employment in question within the organised religion needs to be religiously linked – that means the organised religion may discriminate on the grounds of sexual orientation in the appointment of a minister of a religion or a priest, but not for a mathematics teacher or janitor, for example. In Britain, an exemption relating to the provision of goods and services states that churches are not compelled to conduct same-sex marriages but instead they can opt in to do so.

The fight to lift the barrier to same-sex equality in Hong Kong

There are two further points worth noting. First, these religious exemptions almost always apply to activities of religious organisations, but not religious individuals. That being said, religious individuals can still hold their personal views as long as such opinions do not manifest in the public sphere as actions of discrimination. Second, only religious organisations that are performing a religious function should be eligible for exemptions. For example, if organisations linked to or funded by a certain religion are involved in a social service such as hospitals or counselling – and there are many of these in Hong Kong – or a commercial service, it is questionable whether they should be eligible for such exemptions.

No rights are absolute. Freedom of religion should not be used as an excuse to halt legislation against discrimination on the grounds of sexual orientation, gender identity and intersex status, in order for Hong Kong to move forward.

Suen Yiu-tung, DPhil, is assistant professor at the Gender Studies Programme at the Chinese University of Hong Kong