Landmark ruling should lead to reasoned debate on spousal benefits for same-sex partners
Hong Kong’s matrimonial laws should not be used to justify discrimination against those who enter into gay marriages
Hong Kong’s definition of marriage to exclude same-sex couples may remain intact despite a High Court decision in favour of gay civil servant Leung Chun-kwong. But the ruling against the Civil Service Bureau’s refusal of employee spousal benefits for a partner Leung married legally in New Zealand serves as a reminder that a socially conservative society needs to be mindful of the rights of its minorities.
Civil service unions expect that, as a result of the ruling, more government employees may marry overseas to claim the same benefits for their spouses as their heterosexual colleagues.
Clarity about the rights of minorities under existing laws is important. It may seem reasonable to the ordinary person that if marriage is legal only between a man and a woman, then same-sex relationships should be excluded from employee spousal benefits. The Civil Service Bureau gave more specific reasons for its refusal, but Mr Justice Anderson Chow Ka-ming called the bureau’s policy “indirect discrimination” against Leung.
Leung, a senior immigration officer, sought a review of the refusal of his application for spousal benefits such as medical, dental, housing and education. Chow rejected the bureau secretary’s assertion that it had a justifiable aim not to “undermine the integrity of the institution of marriage”. He failed to see how denial of spousal benefits to homosexual couples legally married under foreign laws could serve this purpose. He also failed to see how Hong Kong’s matrimonial laws could legitimately justify discrimination based on sexual orientation.
At the same time, the judge cautioned that granting benefits to same-sex marriage partners would not constitute indirect legalisation of same-sex marriage. However, this case should give the government a push to tackle long-standing issues of discrimination and equal rights, including dependency visas for same-sex partners. Unlike emotionally charged public debate on such issues, the court review was held in a calm atmosphere. Hopefully, it can inform reasoned public debate.