Hong Kong's LGBT community seeks ban on discrimination

The battle to ban discrimination on the basis of sexual orientation is a frustrating one, as highlighted by Legco's intransigence

PUBLISHED : Thursday, 15 November, 2012, 12:00am
UPDATED : Saturday, 17 November, 2012, 8:16am

For most Hongkongers, being seen by their boss holding hands with their partner would be no big deal. But for those whose partner is of the same sex, it could lead to the sack - with no legal right to fight back.

While Hong Kong has legislation that bans discrimination on the grounds of race, sex, disability and family status, bosses are allowed to discriminate on grounds of sexual orientation.

No one doubts discrimination on grounds of sexuality exists, a fact acknowledged by the government and even conservative groups that oppose legislating against discrimination. Ever since such a law was first considered 15 years ago at the time of the handover, the government has maintained its stance that public education is sufficient to protect lesbian, gay, bisexual and transgender (LGBT) people, and legislation is not necessary.

Last week, the Legislative Council voted down a motion to launch a public consultation on whether to legislate.

The fight for equal rights has been gathering momentum, fuelled by renowned local figures proudly proclaiming their homosexuality and encouraged by progressive legislation in other countries.

In September, Raymond Chan Chi-chuen - popularly known as "Slow Beat" from his days as a radio DJ - came out as gay soon after winning a seat in the Legislative Council, making him the first openly gay lawmaker. He said his presence had encouraged Cyd Ho Sau-lan, a Labour Party lawmaker at the forefront of fighting for legislation, to "pick up the pace" in the new Legco term.

In April, pop star Anthony Wong Yiu-ming came out as gay to a Hong Kong Coliseum audience, becoming the second high-profile singer to do so, after the late Leslie Cheung Kwok-wing. And now there is a third - Canto-pop singer Denise Ho Wan-sze, who came out last week on stage at the city's fourth annual Pride Parade.

Chan, Wong and Ho stood proudly at the front of the rally, leading a crowd of 4,000 demanding "legislation now" to ban discrimination.

Countries that allow same-sex marriage include the Netherlands and Canada, while several US states approved gay marriage laws in last week's elections.

In Hong Kong, a gay couple is not entitled to a civil union, a status granted in countries such as Britain and France which allows same-sex couples to enjoy most of the same rights in law as a married couple. A same-sex partner cannot, therefore, be considered in public housing applications, tax allowances for spouses, health-care insurance, applications for entry of family members for reunion or handling estates.

Sexual minorities also face prejudice in the workplace. A survey of 1,002 workers by Community Business and Barclays released in May found that 27 per cent of respondents said LGBT people should keep their sexual orientation to themselves. Almost 80 per cent said LGBTs faced discrimination in the community and at work.

One woman teacher, who chose to remain anonymous for fear of losing her job, said she was sacked from a religious school after the principal saw her holding hands with her girlfriend on the street. The principal contacted the teacher's parents and asked if their daughter was a lesbian, which led the teacher to believe that she was sacked because of her sexual orientation.

"I never hold hands with my girlfriend in public now," she said.

The Society for Truth and Light, which has long opposed legislation, acknowledged on its website this month that same-sex couples are deprived of the rights that married couples enjoy. But it said rather than introducing a law, government departments could just change their policies.

Raymond Chan slammed this alternative as ludicrous. "Does the Society for Truth and Light expect the government to address each problem as it arises? Why would the government do this? Legislation is the basic starting point."

The society also fears legislation would make it illegal to disagree with homosexuality. Leticia Lee See-yin, president of the Federation of Parent-Teacher Associations of Yau Tsim & Mong Kok District, said legislation might make it illegal for schools - especially religious ones - to teach that homosexuality is wrong, as it would be seen as discriminatory.

But why is legislation necessary? Dr Denise Tang Tse-shang, a University of Hong Kong assistant professor of sociology who has been researching the local lesbian community, said a law would primarily serve an "educational purpose".

"A law sends a clear message that LGBT individuals exist in our society, that discrimination is not allowed … and that if they are being treated unfairly, they have recourse to action," said Tang, who is a lesbian.

She said the fear that LGBTs would take legal action as soon as they meet someone who disagreed with their sexual orientation was unfounded because the four other anti-discrimination ordinances had led to very few complaints being made.

In the first nine months of this year, the Equal Opportunities Commission - responsible for implementing the four anti-discrimination laws - had received 298 complaints under the disability ordinance; 227 on sex discrimination, 16 concerning family status and 43 on racial discrimination.

The numbers were similar last year.

"There are not a lot of complaints for a population of 7.6 million in Hong Kong," Tang said.

The EOC issued writs in just three cases last year and two this year.

Tang believes LGBTs would only take action when discrimination was at a structural level or if it endangered the person's livelihood or safety.

"The fear of 'I'm straight and I might make the wrong remark' is moral panic," said Tang, pointing out that some people expressed similar fears when the sex discrimination law was about to be passed. People were worried their comments could be misconstrued as sexual harassment and result in legal action - which statistics show few do.

The biggest obstacle standing in the way of legislation, Tang believes, is religion. "The problem is legislators can abstain from voting because of their religion. It will be difficult to fight against that," she said.

In last week's vote, 21 voted for a consultation, 24 against and 12 abstained. The motion was passed in the geographical constituency, but not in the functional constituencies.

The EOC has long been a supporter of legislation to protect sexual minorities. Its chairman, Lam Woon-kwong, said a public consultation was "indeed overdue, in light of recent global trends towards protecting the LGBT community's rights".

Significant strides have been made by local campaigners in the legal recognition of same-sex couples, starting with the decriminalisation of homosexuality in 1991.

In 2005, an anti-sodomy law, which stipulated life imprisonment for consensual anal sex between men where at least one of them was under 21, was scrapped. The age of consent was lowered to 16 - the same as for sex between a male and female.

The law against domestic violence has covered same-sex couples since 2009.

Since Legco refused to launch a consultation, Chan plans to collect the views of members of the public on the merits of passing a law to ban discrimination on the grounds of sexual orientation and to study how serious prejudice is. He also plans a survey to determine the size of the LGBT population, which has never been done before.

"It will be difficult because many are not out, but we can at least compile a number for those who are openly gay," he said.

Secretary for Constitutional and Mainland Affairs Raymond Tam Chi-yuen said in May that a law against sexual orientation discrimination "will only lead to arguments, divisions and conflicts" and that time was not yet "ripe to take the legislative route".

But human rights lawyer Michael Vidler disagrees, saying the government's reluctance to legislate before there is consensus is illogical.

"The protection of minority rights involves the rights of a minority not the majority, hence consensus by definition will never be able to be achieved - clearly this cannot be a reason for delay," he said.

Vidler raised examples of discrimination that used to be acceptable but now was considered repugnant.

"Chinese people were discriminated against, women were discriminated against, people of different racial backgrounds and the disabled were discriminated against," he said. "On every occasion when legislation was proposed to prohibit such discrimination there was opposition by those who thought it was too controversial at the time. Imagine where Hong Kong would be now without the protection of equal rights for women - we would be an insignificant dot on the world landscape."

Vidler, whose client successfully challenged the gay age-of- consent laws in 2005, said no one would now suggest the sex, disability or race discrimination laws in Hong Kong were controversial.

"Our society's norms and values have matured and developed for the better, in part because of the legislation enacted," he said. "It serves to clearly inform citizens, companies and organisations that such discrimination is unacceptable. So it should be with sexual orientation. Hong Kong needs to keep pace with worldwide social trends and developments in protecting human rights if it is to remain a world city."

Vidler said some companies may not enforce their diversity policies properly unless forced to.

He had advised a multinational sports shoe company that had sexual diversity policies in place but did not enforce them in the Hong Kong office because there was no discrimination law.

Ultimately, the fight for a discrimination law is a matter of basic human rights.

Reggie Ho Lai-kit, chairman of Pink Alliance, a network of LGBT groups, said legislation "won't ban members of the public from holding an opinion against homosexuality, but the law is to ensure the basic rights that every human being is entitled to".

And having these basic rights, Ho said, would mean LGBTs would no longer fear losing out on a job they are qualified for or facing landlords who refused to rent them a flat.

In 2005, the United Nations said in review of Hong Kong's human rights situation that the "present anti-discrimination legislation does not cover discrimination on the basis of race, sexual orientation and age." Dr Tang said Hong Kong therefore had no excuse for stalling.

Tam said in May that public education was working because there was "increasing open-mindedness about the subject of homosexuality".

Chan, the lawmaker, agrees Hong Kong has grown more open-minded. "After I came out and I visited the districts to show thanks to those who voted for me, I only heard one or two people condemning me while most said encouraging words."

Despite that, he said, many LGBTs still lived in fear of discrimination. "Maybe when I walk outside I don't get called a dead gay man. But there is a problem. In some places, teachers, social workers and others who take care of children are really scared of losing their jobs if they are exposed as gay."

When property tycoon Cecil Chao Sze-tsung made international headlines by offering HK$500 million to a man who could win the heart of his daughter Gigi, who married her same-sex partner of seven years in a civil ceremony in France, he gave a reminder that anti-gay feeling is still strong among older people.

Connie Chan Man-wai, chairwoman of the Women's Coalition, said while the younger generation was generally accepting, Chao's offer encapsulated what many older Hongkongers thought.

While Hong Kong touts itself as "Asia's World City" and banks compete for top talent, many of the companies are concerned that the best talent - people who may be gay - will choose not to come to Hong Kong.

One of the problems is gay professionals are only permitted to bring partners to Hong Kong on a so-called prolonged visitor visa. Successful applicants cannot work, obtain an ID card or qualify for permanent residency.

Multinational investment banks in Hong Kong recognise this problem and created the Interbank LGBT Forum more than a decade ago. Stephen Golden, head of diversity at Goldman Sachs Asia-Pacific, said: "Many LGBT people have choices. They can work in Canada, the United States, or Europe and they will choose a workplace that is inclusive. If Hong Kong doesn't become equally inclusive, we will lose talented people. Experts call it the 'gay brain drain'."

But while international companies have progressive diversity policies, the same may not be true for local or smaller companies.

Despite all the opposition voices, Dr Tang has become more optimistic that a discrimination law can be passed. "As the Hong Kong people are becoming more accepting of sexual minorities, they are also more willing to speak out, as we saw in the anti-national education protests. And Hong Kong people are not just manically shouting; their voices are one of reason."

And the Pride Parade shows how far the cause has come.

Recalling a rally in 1996 in support of an anti-discrimination bill, Connie Chan said: "I remember LGBT individuals did not want to be publicly seen standing up for sexual minority rights, so they pushed wheelchairs to support the disabled, or some lesbians said they were fighting for women's rights."

She also remembered a 1990 edition of the television debate programme City Forum at which a gay rights campaigner spoke to the audience in Victoria Park from inside a van for fear of being identified.

"There is no way something like the Pride Parade could have happened back then," she said, adding that the most encouraging sign in recent years was the number of heterosexual people supporting the gay-rights cause.

"There is no way we can fight for equality with just the LGBT community because there are too few of us, we need the help of our straight friends," Chan said.