LGBT rights in Hong Kong should be protected, and the government should not seek to block progress
Cliff Buddle says the court ruling against spousal benefits for a gay couple is a setback for Hong Kong’s progress in protecting minority rights, and the government should be ashamed of its role in entrenching prejudice instead of fighting it
A gay civil servant’s court victory in April last year suggested that the tide was turning in the battle against discrimination in Hong Kong.
A judge granted Angus Leung Chun-kwong, an immigration officer, the right to claim employment benefits which the government reserves for heterosexual married couples. Leung married his partner in New Zealand in 2014. They couldn’t marry in Hong Kong because the city does not allow same-sex marriages.
These two rulings followed a landmark judgment by the top court in 2013, which gave a transsexual the right to marry her male partner. The judiciary, it seemed, was inclined to interpret the law in a way which upheld the rights of sexual minorities in the face of resistance from the government.
Last week’s appeal ruling in Leung’s case, therefore, came as a shock not only to the LGBT community, but to those who hope to see Hong Kong make progress in protecting minority rights.
The Court of Appeal overturned the earlier ruling on spousal benefits and upheld a decision by the same judge rejecting the couple’s claim for a joint tax assessment. The judgment is potentially more than just a setback for hopes of greater tolerance. It threatens to prevent further progress in this area for many years to come.
At the heart of the ruling was the importance attached by the court to protecting the status of marriage. Chief Judge Andrew Cheung Kui-nung began his ruling by stating: “Marriage is a social and legal institution worthy of full protection of the law. I hope this is self-evident.” Mr Justice Johnson Lam Man-hon said: “Marriage is more than an acknowledgement of a relationship between the couple. It is a commitment upon which a special and unique status is recognised in the eyes of the law and other social norms.”
The court expressed concerns that allowing employment and tax benefits reserved for married couples to be claimed by those who are not married would undermine the institution of marriage. If this right was granted, it said, others would be likely to follow, chipping away at the special status enjoyed by married couples.
Leung might argue that these concerns do not apply to him. After all, he is married. But what the court is seeking to protect is the institution of marriage as defined in Hong Kong. And that means heterosexual marriage.
The three judges found that Leung was possibly the victim of indirect discrimination. But such discrimination could be justified, they said, by the need to protect marriage as an institution.
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These are the same three judges who ruled in favour of the lesbian seeking a dependency visa in September, a decision which appeared to be a big step forward. That ruling might now need to be seen in a different light, given the way the court applied it in the case of the civil servant.
The judges noted that the government had not put forward an argument in the visa case based on protecting the institution of marriage. The government is putting that argument forward now, as the case is being considered by the Court of Final Appeal. It will be interesting to see how the top court approaches it.
One troubling feature of the civil servant judgment is the importance attached by Mr Justice Jeremy Poon Shiu-chor to what he described as the “prevailing socio-moral values” in Hong Kong. By this, he means many people in Hong Kong do not support same-sex marriage. He referred to these values repeatedly in his judgment and even drew on opinion polls put forward by the government.
One poll, published in 2016, showed that slightly more than 42 per cent of respondents opposed same-sex marriage, with 29 per cent supporting it. Another, conducted in 2013, showed 42 per cent disagreed and 39 per cent were in favour. The judge used these surveys as evidence that public opinion on same-sex marriage is divided, “with the majority firmly against it”. The figures provided in the judgment certainly show division, with more against than in favour, but not a majority.
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The court took the view that with no consensus in society, it would be wrong for the judges to change the status quo. His approach appears to differ from that of the Court of Final Appeal in the transsexual marriage case in 2013. There, albeit in a different context, the court said it was wrong to rely on a lack of consensus in society when denying a minority rights. “Reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights,” said Chief Justice Geoffrey Ma Tao-li and Mr Justice Robert Ribeiro in that judgment.
It is worth noting how the court in the civil servant’s case dealt with the reasoning of Brenda Hale, the United Kingdom’s top judge. Hale’s appointment as a non-permanent judge on the top court was recently approved by the Legislative Council. She is likely to make an appearance in future cases and is regarded as being supportive of LGBT rights. Mr Justice Poon delicately distinguished her reasoning in a case in England from the position which applies in Hong Kong. “In Hong Kong, both the law and the community’s prevailing views on marriage remain that the only acceptable form of marriage is heterosexual marriage,” he said.
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The rights of sexual minorities have reached a critical point in Hong Kong. The decision against Leung is likely to be taken to the top court. By then, the Court of Final Appeal will have ruled in the ongoing dependency visa case. Those decisions will give us a clearer picture of the legal position as it stands.
However these cases are determined, it is the government that should be leading the way in preventing discrimination in the city. In 2016, the Equal Opportunities Commission recommended that new laws be introduced to prohibit discrimination on the grounds of sexual orientation. So far, no public consultation has been held.
Protecting the rights of sexual minorities will boost Hong Kong’s reputation as an open and tolerant city which is moving with the times. It will help the city attract talent. Most important of all, it will allow members of the LGBT community to be treated as equals and live in dignity. The government should be driving progress rather than seeking to entrench prejudice.
Cliff Buddle is the Post’s editor of special projects