Hong Kong’s LGBT community has notched small, incremental victories in recent years, but new developments have made those triumphs seem fragile and fleeting.
Last Friday, the Hong Kong Court of Appeal overturned a landmark ruling that granted health benefits to the husband of a male civil servant, the same benefits enjoyed by heterosexual spouses.
On Monday, the government asked the Court of Final Appeal to reverse another gay rights milestone that found that the Hong Kong’s government engaged in “indirect discrimination” when it failed to issue a visa to the spouse of a British lesbian. QT, as the petitioner was called, won her case at the Court of Appeal in September.
Members of the city’s LGBT community said they were discouraged and angered.
“The fact that it comes from COA [Court of Appeal] I would say it reinforces the kind of inferiority or sense of inferiority and prejudice that they feel from every area, every facet of life. This is just another blow with all the prejudice and discrimination they feel,” said Geoffrey Yeung, a member of Progressive Lawyers Group, an association of liberal bar members.
“They basically said there needs to be a full protection of the institution of marriage,” Yeung said. “From my perspective and the perspective of the LGBT community, this basically means full exclusion of LGBT people from the institution of marriage.”
In an email, the city’s office in charge of constitutional and mainland Chinese affairs said, “We have been actively pursuing measures to eliminate discrimination faced by sexual minorities in Hong Kong, including preparation of training resources for personnel in specific fields to increase their understanding and sensitivity towards sexual minorities. … Hong Kong is a free and open society which welcomes talent, professionals and entrepreneurs from all over the world.”
Socially conservative city
Hong Kong is a socially conservative city that has been slow to recognize the rights of gay residents, and allow them the rights of heterosexual locals. The city’s legislature allowed male homosexual relations in the then British colony in 1991, 24 years after such prohibitions ended in the United Kingdom.
Hong Kong law defines marriage as a monogamous union between a man and a woman, and courts have pointed out that the city’s constitution favors heterosexual bonds. In September, three appellate judges pointed out that “our legislature, which is free to go beyond the Basic Law protection and grant gay people equal access to marriage, has instead chosen to restrict marriage to heterosexual marriage.”
Angus Leung Chun-kwong, a senior immigration officer, petitioned the courts in 2015 after the government refused medical and dental benefits to his spouse, Scott Paul Adams. The couple married in New Zealand in 2014.
After the city’s High Court ruled last year that Adams was entitled to spousal benefits, an appellate panel disagreed, saying “Given that the [Hong Kong] Basic Law itself inclines toward heterosexual couples in terms of access to marriage, by definition, in Hong Kong one simply cannot say it is wrong or discriminatory for marriage to exclude homosexual people.”
That made local gay, bisexual and lesbian residents feel like “second-class citizens,” said Tommy Chen, spokesman for Rainbow Action, an advocacy organization.
“The Hong Kong gives out a very clear message: It's clearly not a spousal benefit. It’s a heterosexual privilege,” he said.
QT’s lawyers argued Monday that there is no rational connection between the exclusion of gay spouses and tight immigration control. Whether the spouse is the same or different sex has no bearing on city policy, they argued.
Bad for business
Several activists, lawyers and residents have argued that any attempt by the city to suppress the rights of gay residents is not just discriminatory, but — in a world financial capital — bad business. Several members of the LGBT community argue that Hong Kong’s conservative views will discourage top talent from settling in the city. Indeed, the judges in QT’s case made a similar point.
The QT case become something of a rallying cry for companies doing business in Hong Kong. Fifteen international banks, including Goldman Sachs and Morgan Stanley, and 16 law firms asked the court to intervene in QT’s case in support of her claim. Indeed, the Court of Appeal found that denying dependent visas was “quite obviously counter-productive.”
The corporate intervention was denied by the Court of Final Appeal.