Same-sex visa ruling should be respected
After a landmark court judgment in favour of a lesbian seeking a dependency visa through her partner, the government should be removing barriers to equality so that Hong Kong can enjoy a reputation for being an open, tolerant and diverse city
The Equal Opportunities Commission recommended last year that new laws be introduced in Hong Kong to prohibit discrimination on the grounds of sexual orientation. It suggested the government start the process by launching a public consultation. So far, no consultation has been held. The absence of such laws has not, however, prevented victims of discrimination from succeeding in court. Last week, the Court of Appeal delivered a landmark judgment in favour of a lesbian seeking a dependency visa through her same-sex partner. This is a welcome decision which should be respected and implemented by the government. It is to be hoped it will benefit many same-sex couples in similar positions.
The woman, identified only as QT, challenged an immigration policy that restricted dependency visas to married couples. Same-sex couples are not allowed to marry under Hong Kong law. The policy therefore prevented them from obtaining dependency visas. The court rightly found this to be a case of indirect discrimination. The government argued the approach could be justified because of the need to strike a balance between attracting talent from overseas and maintaining effective, strict and stringent immigration control. The court was not impressed with this argument. The judges pointed out that the ban on same-sex couples did not prevent the Immigration Department from achieving those aims.
The policy was counterproductive, the court said, making it more difficult for companies in Hong Kong to attract talent from among the lesbian and gay community overseas or relocate them to the city. This is why 12 top international financial organisations had applied to support QT’s claim in court. The judges’ decision was based on the fundamental principle that everyone should be treated equally. It does not change or undermine the legal definition of marriage as being between a man and a woman. The judgment strikes a blow against discrimination and reminds us of the important role the courts play in upholding human rights.
In April, the Court of First Instance ruled in favour of a gay civil servant whose partner was denied benefits usually reserved for married couples. And in 2013, the Court of Final Appeal upheld the right of a transsexual woman to marry her male fiancé. Case by case, the courts are removing barriers to equality faced by the lesbian, gay, bisexual and transsexual community. The government is appealing in the case of the civil servant. Rather than seeking to uphold discriminatory policies in the courts, it should be removing barriers to equality so that Hong Kong can enjoy a reputation for being an open, tolerant and diverse city which offers fair opportunities to all.