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Sexual minorities are given overdue hearing

The campaign for LGBTQ+ rights in Hong Kong has arrived in the courtrooms with a string of legal challenges bringing issues into the open and testing government policies, writes Boase Cohen & Collins Partner Lisa Wong.

Hong Kong, 1 April 2019: Hong Kong, like much of Southeast Asia, has made slow progress in supporting LGBTQ+ rights when compared with jurisdictions in the Western world. Homosexuality – in terms of private, adult, non-commercial and consensual relations – was decriminalised in 1991 yet there have been no significant legislative changes to support or recognise same-sex relationships since then.

Members of the LGBTQ+ community have very little protection from discrimination apart from “other status” mention in the Hong Kong Bill of Rights Ordinance, also enacted in 1991, which states:

“The law must deal with everyone equally and cannot treat one person differently from another because of the person's race, colour, sex, language, religion, opinion, national or social origin, property, birth or any other status.”

One small victory was the Domestic Violence (Amendment) Ordinance of 2009, which extended the scope of the Domestic Violence Ordinance to cover same-sex cohabitants and such former cohabitants. As a result, a party to a cohabitation relationship, whether of the same sex or opposite sex, can apply to the court for an injunction order against molestation by the other party.

However, attitudes are changing and as the LGBTQ+ rights movement gains momentum worldwide, so the Hong Kong government is facing increasingly frequent legal challenges to its policies. Recent landmark hearings include:

QT v Director of Immigration

  • QT is a United Kingdom national who came to Hong Kong on a visitor’s visa with her same-sex partner SS, who came with an employment visa. They had entered into a civil partnership in the UK. QT applied for a dependant visa but her application was rejected by the Immigration Department on the ground that, under the existing policy, a dependant visa could only be granted to a spouse under a monogamous heterosexual marriage. Her Judicial Review application against the decision by Immigration was dismissed in the first instance by the court. She appealed to the Court of Appeal and the appeal was allowed on 25 September 2017. The Judge held that there was indirect discrimination on the ground of sexual orientation by the Immigration Department.
  • The Director of Immigration appealed to the Court of Final Appeal. The Court handed down its judgment on 4 July 2018, again in favour of QT, ruling that there was indirect discrimination by the Immigration Department for refusing her application for a dependant visa based on sexual orientation and this was against the policy of encouraging persons of needed skills and talent to join the workforce in Hong Kong.
  • The Court re-emphasised that the “core values” mentioned by Chief Justice Geoffrey Ma in the case Fok Chun Wa v Hospital Authority [2012] 15 HKCFAR 409 included protection from discrimination against sexual orientation under the Bill of Rights.
  • QT’s victory prompted a change in government policy, with the Immigration Department announcing last September that from now on spouses of overseas same-sex civil partnerships or marriages are eligible to apply for dependant visas. The government announced that the Director of Immigration would favourably consider an application from a person who had entered into “a same-sex civil partnership, same-sex civil union, same-sex marriage, or opposite-sex civil partnership or opposite-sex civil union outside Hong Kong” for entry for residence as a dependant provided they met the normal immigration requirements.

Leung Chun Kwong v Secretary for Civil Service and Commissioner of Inland Revenue

  • Senior Immigration Officer Angus Leung Chun Kwong filed a Judicial Review application against the Secretary for Civil Service and the Commissioner of Inland Revenue for, respectively, refusing to grant his husband spousal benefits to which the spouse of a heterosexual marriage would be entitled and for not letting them jointly declare their tax as heterosexual married couples could. Mr Leung and his husband were legally married in New Zealand.
  • The Court of First Instance held that the denial of benefits because of sexual orientation was unlawful discrimination against the couple and thus allowed the application on that decision. However, the judge dismissed the tax challenge as it involved the statutory interpretation of “marriage” under the Inland Revenue Ordinance.
  • But the Court of Appeal, in a judgment handed down on 1 June 2018, agreed with the government’s position. Mr Justice Jeremy Poon wrote: “In conclusion, I hold that upholding the status of marriage is, in the present context, a sufficient and indeed very weighty justification for both the Benefits Decision and the Tax Decision. Both Decisions therefore satisfy the justification analysis. No indirect discrimination against the applicant on his sexual orientation as contended arose.”
  • On 24 September 2018, Mr Leung was granted leave to appeal to the Court of Final Appeal on both issues. The three Court of Appeal judges concluded the case had raised two questions of “great general and public importance”.

Apart from these legal challenges relating to spousal visa and benefits and joint taxation, the core issue of whether same-sex couples should be allowed to marry has also come before Hong Kong’s courts. In early January, it was revealed that separate legal challenges have been mounted by two men – a 21-year-old University of Hong Kong student, known as TF, and a 31-year-old activist, known as STK. They argued in the High Court that the city’s refusal to recognise same-sex marriage violated their right to equality under the city’s Bill of Rights and the Basic Law. STK also argued that his overseas marital status should be given recognition in Hong Kong.

The judge agreed the application should be heard but adjourned the hearing to deal with a similar case in which a 29-year-old woman, known as MK, is seeking to enter into a civil partnership with her same-sex partner.

As well, there is an ongoing judicial review of the Housing Authority’s differential treatment in refusing same-sex couples public housing. Nick Infinger, a 25-year-old permanent resident, launched his legal challenge in the High Court last November. Mr Infinger married his husband in Canada in January 2018 and submitted an application for public rental housing two months later under the category of “ordinary family”. The Housing Authority rejected his application, saying that same-sex couples were not eligible under its policy.

Amid these developments, Boase Cohen & Collins is an active supporter of the campaign for LGBTQ+ rights. We are pleased that once again we will be a title sponsor of Hong Kong’s IDAHOT – the International Day Against Homophobia and Transphobia. Held on 17 May each year, IDAHOT draws the attention of lawmakers, the public and media to the violence and discrimination experienced by LGBTQ+ people globally.

As a firm, we hope to see more progress on equality and fairness to the LGBTQ+ community and within society as a whole. We are eager to participate in any further legal developments in relation to promoting inclusivity and combating discrimination.

EqualRights PHOTO

Hong Kong’s refusal to recognise same-sex marriage is being challenged in the courts.