Written By: Nadia Po Ying Ho
Daniel James / Unsplash
With most Western jurisdictions recognising LGBTQ+ rights (“LR”) as reflected in their legislation, Asian jurisdictions are facing increasing pressure to do the same. In light of a recent landmark case concerning transgender rights,[1] conversation has sparked regarding Hong Kong’s attitude towards LR. This article explores Hong Kong’s current stance on LR and the possible future of LR in Hong Kong. It starts with an overview of the city’s historical and current stance on LR, followed by a comparison of Hong Kong’s stance to that of other Asian jurisdictions. Finally, it will argue for the future of LR in Hong Kong.
Hong Kong’s Position on LGBTQ+ Rights
Hong Kong was a British colony from 1841 to 1997, save for the four years in-between 1941 and 1945 when the Japanese occupied Hong Kong. During Hong Kong’s period of colonisation, its policies reflected the colonial government’s priorities, namely the city’s economy and the preservation of its laissez-faire system over all else. This is reflected in the Sino-British Joint Declaration where there is less mention of equality and more emphasis on Hong Kong’s status as a free port and financial hub. The British Government’s continuous prioritisation of Hong Kong’s economy over equality is once again salient when the United Kingdom extended the application of the International Covenant on Economic, Social and Cultural Rights to Hong Kong in 1976 – but with certain exceptions. One exception being that equal pay for men and women would not apply in Hong Kong. Other than the colonial government’s economic priorities, there were also flagrantly discriminatory laws that were oppressive towards LGBTQ+ people. For example, sex between consenting men was criminalised until the law’s repeal in 1991. Historically, Hong Kong’s anti-discrimination legislation excluded LGBTQ+ people. The 1991 Bill of Rights Ordinance (“BORO”) remedied this by prohibiting discrimination on the grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”[2] The “other status” mentioned in BORO has been interpreted to include sexual orientation.[3] Similarly, under Article 25 of the Basic Law, “all Hong Kong residents shall be equal before the law”.[4] Notwithstanding, both BORO and the Bill of rights only bind public actors, which leaves a lack of legal scope or protection for LGBTQ+ people.
In modern times, LGBTQ+ people have been afforded more protection: sodomy is decriminalised, same-sex cohabitating couples are protected under anti-violence legislation, courts have established the constitutional right to equality including discrimination based on sexual orientation, and the LGBTQ+ community has the freedom to assembly and expression. Despite progress, there lacks recognition in legislation for the daily discrimination that LGBTQ+ people face. In the face of growing criticism and pressure, the Hong Kong government has resisted legislating against LGBTQ+ discrimination and has instead focused its efforts on education. Rather than the legislature taking charge, it seems as though the judiciary has taken the initiative to reform Hong Kong’s stance on LR. For example, in Leung TC William Roy v Secretary for Justice, the Court of Appeal declared that four provisions relating to sexual activities between men were discriminatory and unfairly interfered with the private lives of homosexual men, rendering the provisions unconstitutional and invalid.[5] Another example includes Secretary for Justice v Yau Yuk Lung Zigo, where the Court of Final Appeal (“CFA”) emphasised that the constitutional right to equality under Article 25 of the Basic Law protects sexual orientation.[6] A recent landmark case is Q and Henry Tse v Commissioner of Registration, where the CFA ruled that it is a breach of transgender people’s rights to require full sex reassignment surgery for them to change their gender on their identity card.[7] This may catalyse increasing recognition of transgender people in legislation and other official documents. Moreover, the courts have evolved their powers to become more rigorous. Specifically, the CFA can temporarily suspend a declaration of unconstitutionality to allow the government time to enact the appropriate amendments. This power was exercised in W v Registrar of Marriages, where the CFA ruled that the denial of a transgender woman’s right to marry her partner was unconstitutional[8] and the government was given a year to amend the law.[9]
The government only seems to intervene as a final resort, often refusing to act unless absolutely necessary. One instance includes the amendment of the Domestic Violence Ordinance to protect same-sex cohabitating couples only because “lives may be at stake”.[10] Commentators have added that this demonstrates the government’s reluctance to implement anti-discrimination legislation because it does not want to recognise same-sex relationships.[11] In any case, the paper explicitly stated that the amendment “should not be regarded as equivalent to giving legal recognition to same sex relationships or providing legal entitlements to persons in such relationships.”[12] Potential reasons why the government is hesitant to enact LGBTQ+ specific legislation includes potential ‘reverse discrimination’ and differing societal opinion. Firstly, ‘reverse discrimination’ refers to LGBTQ+ anti-discrimination legislation adversely affecting the rights of certain groups of society such as the freedom of religious belief.[13] However, reverse discrimination has been criticised in academic literature[14] and is more so an excuse for bigotry than a cogent argument. This ‘argument’ protects the ability to harm LGBTQ+ people over protecting a marginalised group from discrimination. Secondly, as Fredrick Fung, a Hong Kong Legislative Councillor has stated: “Generally speaking, we should enact legislation only after the agreement of the majority has been secured.”[15] Especially as Asia remains a more traditional region, in Hong Kong, there is no clear consensus on LGBTQ+ people and their position in the law. In the same vein, in W v Registrar of Marriages[16], the Court of First Instance relied on Schalk and Kopf v Austria[17] to support its finding that there was no clear social consensus on same-sex marriage. At the same time, the court appreciated that “fundamental rights are an exception to the democratic principle of majority rule.”[18] Similarly, the courts have noted that “while there must be deference to the legislature as it represents the views of the majority in a society, the court must also be acutely aware of its role which is to protect minorities from the excesses of the majority.”[19] The CFA has also stated that “reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights.” If equality is prioritised and fundamental rights are recognised, minority groups must be protected irrespective of majority consensus. Despite all the evidence suggesting that the Legislative Council has a duty to implement anti-discrimination legislation to protect LGBTQ+ people, it has not done so.
Evaluation
Compared to other Asian jurisdictions, Hong Kong is much more tolerant and accepting of LGBTQ+ people. For example five years ago, in Indonesia, transwomen were reportedly stripped and beaten by police officersnd were forced to cut their hair in public.[20] This coincided with a Malaysian Islamic court’s sentence of two women to a public caning because they tried to have sex together.[21] This is not to say that Asian jurisdictions do not consider LR. Taiwan has made noteworthy progress in LR by becoming the first region in Asia to legalise same-sex marriage, and recently also expanded on this by recognising transnational same-sex marriages. Hong Kong is already one of the most progressive Asian areas (regarding LGBTQ+ matters), so it is unlikely that another Asian area’s influence can cause change.Instead, Hong Kong could influence neighbouring jurisdictions to follow suit. For instance, a ruling in India that created the option for transgender people to select gender markers on identity markers[22] built on earlier cases from other Asian jurisdictions like Nepal and Pakistan. Hong Kong and Taiwan’s progressiveness may have covert influence over other Asian jurisdictions: just recently, a South Korean gay couple was granted health benefits in a landmark ruling.[23] Alternatively, academics have noted that “even when there is a defeat in court, well-publicised litigation can thrust an issue into the public square and stimulate public education and discourse in important ways.”[24] In light of a loss, publicity creates more awareness and accelerates the movement. It has been noted that LGBTQ+ activism in certain parts of Asia has “persisted and grown in spite of and because of intransigence.”[25]
Hong Kong has four anti-discrimination ordinances for disability, family status, race, and sex: the Disability Discrimination Ordinance, the Sex Discrimination Ordinance, the Family Status Discrimination Ordinance, and the Race Discrimination Ordinance (“RDO”). The government has shown continuous inaction in preventing discrimination, as even the RDO was only enacted in 2008. Given the high rates of discrimination on the grounds of sexual orientation, gender identity and intersex status (“SOGI”)[26], there should be moves to create anti-discrimination legislation on the grounds of SOGI and all anti-discrimination legislation should be collapsed into one piece of legislation that protects all groups of society regardless of race, sex, gender, or religion. This could look like the Equality Act 2010 which encompasses the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995. Hong Kong’s anti-discrimination legislation is limited to addressing discrimination after the fact, meaning “there is no impetus for the HKSAR government to pre-empt any risk of inequality before it occurs in the implementation of legislation, policies, or programs.”[27] While the government has adopted a Code of Practice for employers to address discrimination,[28] it relies on employers voluntarily pledging commitment, rendering it weak. The Code is a valuable foundation for anti-discrimination law but is ineffective without the force of law.
Conclusion
Despite increasing social acceptance and awareness, there is a growing body of evidence that points to the daily discrimination that LGBTQ+ people face.[29] Without the necessary anti-discrimination legislation and the recognition of LGBTQ+ people in the law, they are left powerless to protect themselves in cases of discrimination that occur in everyday spheres like employment and education. The move towards recognition of LR has largely been catalysed by the courts and less by the legislature. While legislation is necessary to protect LGBTQ+ people, the government is partly correct in their emphasis on education. Legislation alone is insufficient and in some cases has limited powers in preventing discrimination, intolerance, and bigotry. The fostering of an inclusive environment requires efforts on the part of both public authorities and private actors. For example, the government should continue using tools like awareness campaigns, anti-discrimination education in schools and more to address issues. Positive policies include the Constitutional and Mainland Affairs Bureau’s annual funding scheme for projects promoting equal opportunities for LGBTQ+ people and the Code of Practice. Furthermore, as studies have indicated a limited understanding of the daily struggles endured by the LGBTQ+ community and what they lack,[30] additional research could inform public policy. Through collaboration with the government and LGBTQ+ organisations and research institutes, legislation can better protect the community. While injustice can be explicitly caused through discrimination, it can also be implicitly caused through inertia and immobility. Ultimately, the government’s overreliance on education and self-regulation to realise change betrays its true lack of commitment to the protection of LGBTQ+ people.
[1] FACV 8-9/2022; [2023] HKCFA 4. [2] Bill of Rights Ordinance (c383) 1991, article 22. [3] Secretary for Justice v Yau Yuk Lung Zigo [2007] 10 HKCFAR 335 11. [4] Basic Law, article 25. [5] HCAL 160/2004. [6] [2007] 10 HKCFAR 335, 10-11. [7] (n 1). [8] [2013] HKCFA 39. [9] Jennifer Ngo and Linda Yeung, “Conservative Christians and gay-rights activists unite to condemn transgender marriage bill” South China Morning Post (Hong Kong, 23 April 2014) <http://sc.mp/IS5k9s?utm_source=copy_link&utm_medium=share_widget&utm_campaign=1494969> accessed 20 February 2023. [10] Labour & Welfare Bureau, LC Paper No. CB(2)341/08-09(03), Legco Panel on Welfare Services: Proposed Amendments to Domestic Violence Ordinance (Cap. 189), 6 (December 2008) <https://www.legco.gov.hk/yr08-09/english/panels/ws/papers/ws1208cb2-341-3-e.pdf.> accessed on 20 February 2023. [11] Amy Barrow and Anne Scully-Hill, “Failing to Implement CEDAW in Hong Kong: Why isn’t Anyone Using the Domestic & Cohabitation Relationships Violence Ordinance?” [2016] 30(1) International Journal of Law, Policy and the Family 50; Joy Chia and Amy Barrow, “Inching Towards Equality: LGBT Rights and the Limitations of Law in Hong Kong” [2016] 22(2) William & Mary Journal of Women and the Law, 303. [12] Legco Panel on Welfare Service (n 6). [13] Johnny Tam, “Christians in Prayer Rally to Fight Gay Law Proposal” South China Morning Post (Hong Kong, 14 January 2013) < https://www.scmp.com/news/hong-kong/article/1127407/christians-prayer-rally-fight-gay-law-proposal?utm_source=copy_link&utm_medium=share_widget&utm_campaign=1127407 > accessed 21 February 2023. [14] (n 11). [15] LegCo Official Record of Proceedings, Equal Rights for People of Different Sexual Orientations, 1555-1556 (17 November 2012). [16] [2010] 6 HKC 359. [17] App no 30141/04 (ECtHR, 24 June 2010) . [18] (n 10) 217. [19] Leung v Secretary for Justice [2006] 4 HKLRD 211, 53. [20] “Indonesian police investigate detention of transgender women in Aceh” Reuters (Indonesia, 2 February 2018) < https://www.reuters.com/article/uk-indonesia-lgbt-idUKKBN1FM10X > accessed 21 February 2023. [21] Kate Lamb, “Women caned in Malaysia for attempting to have lesbian sex” the Guardian (Malaysia, 3 September 2018) <https://www.theguardian.com/world/2018/sep/03/women-caned-in-malaysia-for-attempting-to-have-lesbian-sex> accessed 27 February 2023. [22] National Legal Services Authority (NALSA) v Union of India [2014] 5 SCC 438. [23] Hyunsu Kim, “South Korean gay couple sees court win as breakthrough for equality” Reuters (South Korea,27 February 2023) < https://www.reuters.com/world/asia-pacific/south-korean-gay-couple-sees-court-win-breakthrough-equality-2023-02-27/ > accessed 27 February 2023. [24] Holning Lau, “Courts, the Law, and LGBT Rights in Asia” (2020) Oxford Research Encyclopaedia of Politics <https://doi.org/10.1093/acrefore/9780190228637.013.1230> accessed 27 February 2023. [25] Lynette Chua and Michael Hor, “Focus: The life and future of British colonial sexual regulation in Asia” (2016) 46 Hong Kong Law Journal 1-8. [26] YT Suen et al, “Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status” (Hong Kong Equal Opportunities Commission, 2016). [27] Amy Barrow, “Sexual Orientation, Gender Identity, and Equality in Hong Kong: Rights, Resistance, and Possibilities for Reform” (2020) 15 Asian Journal of Comparative Law 126. [28] Constitutional and Mainland Affairs Bureau Hong Kong, “Code of Practice against Discrimination on the Grounds of Sexual Orientation” (Code of Practice) <https://www.cmab.gov.hk/en/issues/full_code_of_practice.htm> accessed 21 February 2023. [29] (n 21). [30] (n 26).
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