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Tide is turning on LGBTQ+ issues

Amid government inertia, members of Hong Kong’s LGBTQ+ community are still forced into expensive and time-consuming court actions to earn certain basic rights. Boase Cohen & Collins Senior Associate Alice Cabrelli and Trainee Angie Liu examine two important judgments.

Hong Kong, 9 November 2020: Research reveals there is increasing support among the Hong Kong public for LGBTQ+ rights, but this is not being reflected in action from the government. Indeed, activists maintain that the current administration, like its predecessors, remains woefully out of step with global thinking.

Two recent High Court rulings have further illustrated how the LGBTQ+ community has to scrap for every concession amid government indifference. It is an unhealthy situation which does not reflect well on a supposedly free and international city such as Hong Kong.

In Ng Hon Lam Edgar vs Secretary for Justice [2020] HKCFI 2412, the applicant was married to his husband in London in 2017. He subsequently purchased a property in Hong Kong, under the Home Ownership Scheme, as his matrimonial home. The applicant’s husband could not be a joint owner of the property as the same-sex marriage was not recognised and the applicant was concerned in the event that he died intestate (without a will) his properties would not be passed to his husband.

Therefore, the applicant challenged sections 4, 7 and schedule 2 of the Intestates’ Estates Ordinance (Cap. 73) (the “IEO”) as they do not recognise a same-sex marriage under the definition of “valid marriage” nor a surviving spouse to same-sex marriage under the definitions of “husband” and “wife”.

The applicant also challenged provisions in the Inheritance (Provision For Family and Dependants) Ordinance (Cap. 481) (the “IPFDO”) since they do not empower the Court to make reasonable financial provision in favour of the surviving spouse to a same-sex marriage out of the estate of his/her spouse, unless he/she was immediately before the death of the deceased being maintained, either wholly or substantially, by the deceased.

Mr Justice Anderson Chow determined that the provisions in the IEO led to differential treatment between parties to a heterosexual marriage and a same-sex marriage on the issue of intestacy rights. In particular, under the current framework, the surviving spouse to a same-sex marriage has no automatic right to inherit. In respect of the IPFDO, Mr Justice Chow took the view that the differential treatment was based on a prohibited ground which cannot be justified and hence constituted unlawful discrimination.

In Sham Tsz Kit vs Secretary for Justice [2020] HKCFI 2411), the applicant, unable to marry his husband in Hong Kong, married in New York in 2013. The application sought a declaration that provisions of the Marriage Ordinance (Cap. 181) and the Matrimonial Causes Ordinance (Cap. 179) which do not recognise foreign same-sex marriage were unconstitutional.

In his ruling, Mr Justice Chow observed that many of the government’s current policies and/or statutory provisions “are vulnerable to challenge on the ground of unlawful discrimination based on sexual orientation and some of them, on analysis, may be held to be unconstitutional”. However, he said the applicant’s attempt to achieve complete parity of legal recognition of foreign same-sex marriages and foreign opposite-sex marriages – or, indeed, local opposite-sex marriages – was “too ambitious”.

The judge declined to make the declaration sought and took the view that it remained open for the applicant to challenge any particular decision which accorded differential treatment based on sexual orientation as a violation of his constitutional right to equality.

While LGBTQ+ activists and supporters naturally welcomed the first judgment and expressed dismay at the second, they can perhaps take solace in the knowledge that public opinion is shifting. Earlier this year, a survey by the Chinese University of Hong Kong revealed opposition to legal protection for people who identify as LGBTQ+ is on the wane.

Only 12% of more than 1,000 people polled objected to laws preventing discrimination against LGBTQ+ people, down from 35% in 2016. Some 60% supported better protection, up four percentage points from the previous survey, while support for same-sex marriage rose from 27% in 2016 to 44% now. While government officials and lawmakers have often defended their reluctance to embrace change on LGBTQ+ issues by saying society is not ready for it, the evidence suggests otherwise.

It is worth remembering that a report initiated by the Equal Opportunities Commission last year identified nearly 100 ways that people in same-sex marriages and LGBTQ+ partnerships are treated differently under Hong Kong law. Despite some landmark judicial review cases in recent years regarding certain immigration rules, public housing policies and tax benefits, there is still a long way to go.

It appears the development of LGBTQ+ rights in Hong Kong will continue to be piecemeal and rely on individuals bringing cases to Court, at great cost. It is far from satisfactory that the government is seemingly content for the law to develop this way rather than take a proactive approach.

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