Give spousal benefits to gay couples and floodgates open, Hong Kong court hears
Ruling in case involving immigration officer and partner he wed overseas could amount to recognising same-sex marriage in city, government lawyers argue
Granting spousal benefits to gay couples working for the Hong Kong government would amount to recognising same-sex marriage and “opening floodgates”, its lawyers argued at an appeal hearing on Monday.
Barrister Monica Carss-Frisk QC said such a step could lead to other benefits traditionally enjoyed by married couples being challenged in other areas, leaving authorities to uphold the “institution of marriage”.
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“Why stop here?” she asked rhetorically.
But counsel representing senior immigration officer Angus Leung Chun-kwong, who lodged a judicial challenge after his same-sex partner was refused spousal benefits, dismissed the approach as discriminatory.
Leung challenged the bureau in 2015, a year after he and his partner, Scott Adams, were married in New Zealand.
In the same legal bid, Leung challenged the tax department’s failure to recognise the marriage, but lost. He is appealing against that decision.
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Representing both the bureau and tax authority, Carss-Frisk argued the prospect of a flood of legal challenges by other gay couples who married overseas had justified the preferential treatment for heterosexual married couples.
The case hinges on whether Leung’s same-sex marriage, which was registered overseas, should be recognised by the Hong Kong government for the purposes of tax and civil employment benefits, even though the city does not recognise same-sex marriage.
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“There is no getting away, in truth, in substance and in reality, you are then recognising that,” Carss-Frisk said.
The barrister maintained that the government operated on scarce resources. She asked the court to consider that the existing benefits policy had been “long-standing”.
But Karon Monaghan QC, for Leung, countered those reasons, saying that as Leung already had a marriage certificate, it was reasonable to recognise his union.
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High Court chief judge Andrew Cheung Kui-nung suggested the matter was no more than a policy decision and that it was possible to rewrite regulations such that the rights could be granted without formally recognising foreign marriages.
The judge also distinguished the present case from what he called more “intrusive” instances, such as when the city was invited to recognise a same-sex marriage from overseas for adoption purposes in which a child would end up with two fathers or mothers.
Now we are in the 21st century
“Now we are in the 21st century,” Cheung said, adding that the policy in question was introduced during a time when homosexual acts were criminalised.
Lam invoked the case on Monday, asking Leung’s lawyer to address the concern about a floodgate being opened. He said while the QT case involved an immigration policy mostly affecting expatriates, the present case more directly related to local residents.
A permanent Hong Kong resident, Leung joined the Immigration Department in 2003.
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Holding Adams’ hand outside court, Leung said they only wanted to be treated equally.
The appeal continues on Tuesday.
