City Weekend

Champion for LGBTI issues, Hong Kong-based lawyer seeks to give voice and power to the little guy

Michael Vidler describes his relentless battle against discrimination in the city

PUBLISHED : Saturday, 18 November, 2017, 6:00pm
UPDATED : Saturday, 18 November, 2017, 6:00pm

In September, a British lesbian known as QT won a landmark appeal against the Immigration Department’s refusal to grant her a spousal visa. The government has since appealed to the city’s top court. Hong Kong decriminalised homosexuality in 1991 but does not recognise same-sex marriage. QT’s lawyer, Michael Vidler, characterised the Court of Appeal win as a “landmark judgment” for the LGBTI community.

The 53-year-old Briton travelled to Hong Kong in the early 1990s with no intention of staying. However, 25 years later, he is one of the city’s top human rights defenders. In 2003, he set up his own practice, Vidler and Co, giving him “more freedom” to focus on cases that he found interesting: issues of discrimination.

His work ranges from representing Hong Kong democracy activist and Occupy movement leader Joshua Wong Chi-fung to Rurik Jutting, a British banker currently appealing his life sentence for killing two Indonesian women. In addition, he works on numerous LGBTI cases.

In 2006, Vidler challenged the age prohibiting men from engaging in gay sex. He argued it should be changed from 21 to 16 – the same as for heterosexuals – through a case involving Hongkonger Billy Leung.

In 2013, the lawyer gained the right for a transsexual woman, “W”, to marry her fiancé. All three cases were significant stepping stones towards cultural acceptance and constitutional change in the city.

A month after the “QT” case, Hong Kong became the first Asian city to win the right to host the Gay Games, set for 2022, beating rivals Washington, DC, and Guadalajara in Mexico. The games were launched in 1982 by Olympic decathlete Tom Waddell, and they are now billed as the largest LGBT sporting and cultural event in the world.

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Vidler claims the city’s young people have no issue with the LGBTI community and do not stigmatise them. In January last year, in fact, the Chinese University of Hong Kong conducted a survey on public support for legislation against discrimination, commissioned by the Equal Opportunities Commission. It found that 92 per cent of those aged 18 to 24 backed such legislation.

As the cause of anti-discrimination gains traction locally, landslide cases have been won and the city is gearing up to host the high-profile Gay Games. And a singular question begs to be asked: is Hong Kong likely to follow in Taiwan’s footsteps to tackle discrimination and eventually legalise same-sex marriage?

Why did you decide to focus on human rights law?

It is doing the cases that others might not want to do, the difficult cases, on the principle that everyone is entitled to be represented. For instance, I believe that Mr Jutting should have been convicted of manslaughter rather than murder, and I am very genuine in that belief. It’s not me just saying it for the client. People ask: ‘How could you represent that person?’ But I think: ‘Because that person had a disorder of the mind.’ It’s all a matter of perception.

In a place like Hong Kong, where there is such a disparity of wealth and power, there is that much more need for there to be solicitors willing to give voice and strength of power to the little guy.

How would you describe the legal system and LGBTI rights in Hong Kong?

There are a whole load of laws that are homophobic, that relate only to homosexual men.

For the Billy Leung case, when I started doing LGBT rights, it took the Hong Kong government eight years o change the law to be in line with the Court of Appeal’s judgment. It only required something like eight words to be changed.

The Hong Kong government has to be dragged kicking and screaming to carry out what I would suggest are sensible and obvious reforms

At that time they failed to look at the other sections in the Crimes Ordinance and say they were also homophobic. The Hong Kong government has to be dragged kicking and screaming to carry out what I would suggest are sensible and obvious reforms.

In my view, the Hong Kong government is trapped in a cycle of crisis management. There are serious incompetencies. I think you have got people in the civil service who are ingrained in thinking compliance, rather than thinking of solutions and being proactive. It is just about doing the job that is given to us. There is no opportunity to think outside the box.

This is not an ethnic thing. This is an educational thing. When you look at the educational system in Hong Kong, it is all rote learning. Don’t speak out. Don’t ask questions.

Why do you have such a passion for LGBTI issues?

When I was at university, I shared a flat with a gay man. I didn’t know, but looking back it was screamingly obvious. I only really realised when we went into a department store in Leeds to buy an umbrella, and the shop staff said it was best if he looked in the female section. It was a casual, snide discrimination. I can’t say I was energised immediately then about the issue, but I’ve always been very open-minded.

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When I came here, the gay community was petrified. Self-censorship. Petrified of exposure. Many people not coming out at work or to their parents. Then I was introduced to Billy Leung, who hadn’t come out to his parents and was 19 at the time.

What impact did Billy Leung’s case have?

At the time, the Crimes Ordinance, section 118C, stipulated any gay man who had sexual intercourse with another man, if one of them was under 21, would both be liable to life imprisonment. Yet if you had underage sex with a 15 and ½-year-old girl, I think the maximum sentence was three or four years’ imprisonment. It was a challenge on the age of consent.

Billy came out during the proceedings, and I think that was a watershed for many gay members of the community because they realised: one, you could have a voice; two, the courts would rule according to constitutional law; three, there was a sense of him as a working class, blue-collar local lad, not a Western guy. At that time there was a perception of gay being something Western ... good Chinese boys aren’t gay. There he was, out and proud, and his employer and family stuck with him.

It meant that a lot of young gay men and women could feel as though they could talk about their sexual orientation to their family, to their workplace. But it was still a very slow process.

Was the QT case a sign of change and reform?

Legally, I was pleasantly surprised by the Court of Appeal – not always known as the most liberal court – coming down with a very strong and, in my view, watertight analysis of discrimination law, ruling in QT’s favour. I have a lot of respect for that because I know the religious views of some of the judges. My hopes weren’t high. I very much expected to go to the Court of Final Appeal. It was an essential landmark judgment.

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What is also important is that so many banks came forward. A huge amount of people in Hong Kong, it’s a dream job to work in these big banks, and what their parents want. So if you’ve got these big banks, major employers, saying not only is this not an issue for us but we positively want to deal with this issue, we are being affected and find it offensive because our staff should be treated equally, that sends a huge message in terms of cultural acceptance.

Do you think QT’s case and Hong Kong’s hosting the Gay Games in 2022 signals progress?

It signals that the LGBTI community is prepared to be more proactive. I think there are still some in Hong Kong who take their lead from our political leaders, who are clearly guided by misconception of what their faith requires, and that’s sad. There are an awful lot of religious people who believe in “love thy neighbour” but we also have a conservative element within the different churches. They are the ones who run the education in Hong Kong, so that filters down. But thankfully we have a generation of young people who have been plugged into the internet for the last 15 years, so such homophobia is taken with a huge pinch of salt.

You’ve got a very vocal homophobic contingent out there who have made it known that being Christian is being anti-gay, which is appalling and untrue. What needs to happen is more religious people being prepared to stand up and say: ‘No, that is not me.’ Increasingly, young people are willing to do that.

How likely do you think it is that Hong Kong will legalise same-sex marriage?

The courts refer to the legislature: they will make a declaration that something is unlawful, or unconstitutional, but generally have to require the government to do something to affect a law.

Whilst you may get a case that says it’s unlawful to discriminate and not provide for recognition of same-sex partnership or marriage here in Hong Kong for the LGBTI community, it would still, as it stands at the moment, take the legislature to enact. Unless the government is more proactive in whipping in supporters and requiring them to make change, it won’t be enacted.

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The government sets the tone. On the one hand they say to the human rights committee, who report every four years on human rights development, we are diversity-friendly and so on, but its actions are very different to its words. Every step of the way it drags its heels, as you can see in appealing its QT decision.

When you have a slippery customer, you have to corner them, and that is what we are doing with the government in relation to this. Chipping away. Eventually there will be just be nothing they can do.

Every day there is more acceptance. In Hong Kong, it needs to be more upfront. What will come first will be the discrimination legislation, and then it depends on how fast we can bring a suitable case for the issue of same-sex marriage. It’s not going to be too long that we will be able to bring a case that says it is discriminatory against gay people to not have these provisions here in Hong Kong.

Will Taiwan’s legalisation of same-sex marriage in May impact Hong Kong?

Of course. It used to be a favourite of the government to say Hong Kong has its own unique characteristics: we may have a system based on the English common law system, but we have our Chinese characteristics.

Every day there is more acceptance. In Hong Kong, it needs to be more upfront

The idea of saying we have to make an exception because of our Chinese characteristics is a nonsense because Taiwan has same-sex marriage.

Taiwan didn’t have the educational system that we had, which was derived from the British government handing it over to the churches. So they don’t have the predominance of church-run schools. Secondly, you have a phenomenon you get with regimes which have had dictatorial rule: when Franco died, Spain became a democracy and there was a flowering of openness and democracy and views, ranging from drugs to sexual orientation. You get a more enlightened constitutional court. The judges after the Kuomintang constitution came to an end were more open and more accepting. So it meant there was a more accepting attitude. That is the difference, I think, between Taiwan and Hong Kong.

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What do you miss about living in England, if anything?

Summer evenings. Pubs and sunshine – being outside and having a pint on a nice summer evening.

What luxury item would you bring to a desert island?

I’ve tried to think about this so many times. Probably be a pair of glasses, if that is a luxury item! And I could use it for lighting fires.

If you could be an Olympic level at any sport, what would it be?

When I was a kid I once got a cup for running the fastest 800 metres my school had done. It would have to be running, it would be quite cool to be a sprinter.

Best way to switch off?

Kids. They rather take your mind off the gruesome stuff and demand your attention: a sure-fire way of switching off.

Where else would you live in the world?

I do like the cliche idea of French life: French cheese, a cool, dry climate. Provence – not on the coast, high up lavender country. That’s where I love, we basically go back there every year. To a place, like a BnB, where this lady is a fantastic farmhouse cook, so you have seven course meals for about HK$150, with wine included, and it’s just fantastic food.