Source: Pexels (https://www.pexels.com/photo/one-black-chess-piece-separated-from-red-pawn-chess-pieces-1679618/)

Author: Suen Yiu Tung
Summarised by Tsang Zi Kan (Associate)
 
The Hong Kong government adopts the argument of a lack of public consensus for not introducing social policies and legal reforms to protect sexual minority against discrimination. The author notes the importance of deliberation, informed and rational decision-making in a democratic society, but points out that the majority may not be sufficiently informed, and majority consensus may lead to “tyranny of majority”. The article analyses the telephone survey data of 1,005 HK adults conducted in 2015. First, it challenges whether public opinion should be given a heavy weight. The author suggests the possible unreliability of over-relying on public opinion in decisions concerning LGBT+ rights. Second, the article debunks the negatively portrayed perception of the HK society on LGBT+ rights.
 
The author first gives an account of the history of laws and reforms regarding homosexuality, and the reluctance of HK government, to show that there is still no legislation against discrimination of sexual orientation, gender identity and intersex status.
 
Contact with LGBT+ people

The author’s first critique relates to how informed the majority is about LGBT+ people. He would like to determine what weight should be given to such public opinions by examining the frequency of contact and the awareness of lack of legislative protection. The hypothesis is that a limited contact and awareness can result in negative stereotypes.
 
The findings indicate that most respondents did not have any contact with LGBT+ people. Respondents who were more likely to report contact with LGBT+ people were younger, with higher education level, currently employed, having higher monthly income, and single (not married/divorced/separated/windowed). But such contact are often infrequent. More specifically, the frequency of contact with lesbians was higher for females, the younger generation, and people who had middle-range monthly income.
 
Knowledge of lack of anti-discrimination legislation on sexual orientation
 
The second critique relates to whether the level of public support for legislation regarding anti-discrimination towards sexual minorities, is in fact as low as contended by the HK government.
 
Public awareness of the absence of legal protection for LGBT+ people is found to have increased, compared with previous studies. The author observed that the support for such legislation has almost doubled from around 30% in 2005 to 55% in 2015. But there was still a significant portion of respondents who are unaware of the socio-legal situation of LGBT+ community.
 
The author analysed that respondents who had frequent contact and those who had some contact with lesbians and gays were more likely to support anti-discrimination legislation regarding sexual orientation. Contact with transgender and intersex people were not found to be significantly related to such support.
 
Respondents in the 18-24 age category are particularly supportive of such legislations, with almost 92% agreeing. Those who regard the cause of homosexuality, bisexuality and transgender status as fully or partially inborn are more likely to support such legislations. So do respondents who had secondary education level or above, craft/operators/elementary as occupations, monthly incomes lower than $40,000, never married, no children, no religion or self-declared very liberal/liberal political attitudes. Almost half of the respondents with religious beliefs also agreed there should be such legislations in general. Whereas, those who regard same-sex or bisexual relations, the desire to change the assigned gender, and wearing clothes different from assigned sex as wrongful acts tend to indicate lower support for such legislations.
 
The author suggests the need to examine whether accurate information or second-guessing is the basis for public opinion on minorities. He stresses the need of public education and dispelling stereotypes by policy makers, rights advocates and the media. He concludes that governments should no longer use the excuse of “divided opinions” for not protecting sexual minority rights.
 
Commentary
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The article and its findings reminds us the importance of being more informed of the needs and rights of LGBT+ people. The first step to take for the government should at least be introducing anti-discrimination laws on ground of sexual orientation or gender identity so to ensure an inclusive HK society.
 

Summarised by Yoyo Lau (Associate).

Sarah Lamble, Unknowable Bodies, Unthinkable Sexualities: Lesbian and Transgender Legal Invisibility in the Toronto Women’s Bathhouse Raid. Social & Legal Studies. 2009; 18(1):111-130. doi: 10.1177/0964663908100336 

The Legal Invisibility of the Lesbian and the Transgender

Despite the recent discussion of cases involving sexual orientation and gender identity, lesbian and transgender bodies and sexualities are still invisible to a large extent. Concerning lesbians, they are not regulated under buggery laws; their rights are absent in the era of gay rights litigation; and they are deemed as disembodied, desexualized legal subjects in cases about lesbians. The legal silences of the lesbian appear to constitute a deliberate attempt to regulate lesbians by denying their existence. In relation to the transgender, they are treated as biological, medical and psychological specimens in cases involving the transgender; and there are preconditions for the recognition of their gender identity. It is apparent that there are many obstacles in addressing the specificity of the transgender.

The Bathhouse Raid Case

The Canadian case, R. v Hornick (2002), is an example showing that lesbian and transgender bodies and sexualities are actively rendered invisible through legal knowledge practices, norms and rationalities. On 15 September 2000, five male police officers entered into a women’s sexual bathhouse for the investigation of liquor license violations and criminal sex acts. They spent more than an hour on searching private rooms and questioning half-naked women. In the court, it is held that the police had violated the women’s security, privacy and equality rights under the Canadian Charter of Rights and Freedoms. However, the focus of the judgment shifts from queer women’s sexuality to simply a search of semi-naked females conducted by males. Also, keywords such as “transgender” and “transsexual” are omitted in the judgment, implying a deliberate repression of the lesbian and transgender identity.

The Role of Limited Thinking in the Bathhouse Raid Case

The case of R. v Hornick plays an important role in demonstrating the invisibility of the lesbian and the transgender in three different aspects. Firstly, the male police officers failed to recognize the queer identity of the women in the bathhouse and failed to think about their discomfort of being gazed and searched by males. This shows the police officers’ careless thinking while carrying out the raid. Secondly, both the judge and the defence lawyer display their limited thinking in upholding the ban on cross-gender strip searches since they wilfully ignored the rationale behind the ban and deliberately blurred the sexual and gender identities. Lastly, the judge prevented uttering the words “lesbian” and “transgender” in the courtroom and referring to the queer sexuality in his final ruling, implying the judge’s refusal to know or consider matters related to the queer. In a nutshell, R. v Hornick serves as an essential case study for examining the legal regulation of bodies and sexualities through modes of invisibility and unthinkability.

Comments

Legally speaking, the case of R. v Hornick is a strong evidence that the lesbian and transgender sexualities are not formally recognized by law and in the courtroom. There is a deliberate self-censorship of the queer sexuality by avoiding to address matters related to the lesbian and the transgender. It appears to be disadvantageous to the development of the queer community and the advocacy of their rights. However, practically speaking, the silences of queer sexuality in the case highlights the special gender identity of the lesbian and the transgender, and thus the case generates massive public attention. The surprising effect of the case helps with the promotion of the specificity of the queer identity. Therefore, the R. v Hornick case is worth studying regarding the relationship of law and the queer community.
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Author: Robert Danay
Summarized by: Kylie Chang (Associate)

The author argues the Hong Kong Court of First Instance decision in Leung v Secretary for Justice to strike down the provisions that criminalises homosexual sexual activities, including the higher legal age for sexual intimacy between homosexual couples and the act of “buggery”, by declaring them unconstitutional was founded on a wrong analysis.
 
In the Leung case, the court held that provisions in the Crimes Ordinance were unconstitutional as they violated the Applicant homosexual man’s equality rights and his privacy rights; both rights being enshrined in the Basic Law, the Bill of Rights and the International Covenant on Civil and Political Rights. The author avers that the equality right analysis was inappropriate, that a privacy right analysis alone would have been suffice, as the equality analysis is reinforcing a “hypersexualised” stereotype of gay men.
 
Summary of court’s ruling

Firstly, concerning sections where the Secretary for Justice conceded.
 
The court read down s.188H which limited homosexual male couples to engage “acts of sexual intimacy”, as termed by the court, from “under the age of 21” to “under the age of 16”. The court also struck down the provision that prohibited homosexual male couples to engage with acts of sexual intimacy when more than one other persons take part or are present, which had always been lawful for heterosexual and lesbian couples who are over the age of 16. The provision that prohibited homosexual male couples to engage in buggery when one or more other persons take part or are present is struck down.
 
Secondly, concerning sections where the Secretary for Justice contested.
 
The Secretary defended s.118C which made buggary unlawful should either of the partners is under the age of 21. The Secretary argues that the legislature has a better capacity to determine what is the best way for the society to protect young persons, particularly their morality. Accordingly, the provision was not discriminatory as there is an equivalent provision that prohibits the same act for a man to do so with a woman who is under the age of 21.
 
The Court rejected the Secretary’s submissions.
 
Firstly, the Court agrees that the legislature generally has a better position to ascertain what are the prevailing social norms and values to be protected, but there was no evidence that shows the prevailing view of the Hong Kong community being against homosexual activity carried consensually and in private. Considering that the prohibition violates the Applicant’s constitutional privacy and equality rights, the Court are obliged to weigh considerably less deference to the legislature, rejecting the Secretary’s first argument.
 
Secondly, the Court found that the provisions were directly and indirectly discriminatory. Under s.118C, when illegal buggery occurs between homosexual couple, both men were made criminally liable; however, when the same occurs between a heterosexual couple, only the man was made liable. The court found this as a “direct inequality of treatment”, following a decision of the Ontario Court of Appeal which found that buggery was the only form of sexual intercourse available for gay couples, therefore, a prohibition against buggery is a disguised form of discrimination based on sexual orientations.
 
Having concluded that the above provisions presented a prima facie violation of the Applicant’s equality and privacy rights, the Court further held that the provisions were neither rationally connected to the goals of preventing young men from moral degradation and disease, further or alternatively, the provisions were not constitutionally proportionate to realise these goals. Therefore, the court struck down s. 118C as unconstitutional.
 
Avoiding the Hypersexualised Homosexual Stereotype

The author began with criticising the Court’s failure to give a precise distinction between sexual orientation as a status rather than a personal choice. Sexual orientation is only immutable at an unacceptable cost to personal identity.
 
Regarding the first section, the author agrees with the Court that the use of an equality rights analysis can more accurately capture the manner of how these criminal prohibitions reinforces other discriminations against LGBT individuals in the society, by picturing them as unapprehended felons. All three provisions were clearly directed to homosexual men.
 
Regarding the second section, the author avers that the equality argument reinforces the judicial presumption that homosexuals have abnormal sex preferences, that homosexual persons are distinguished from heterosexual persons by their sexual conduct. Rather than asserting, as the Court did, that homosexual couples also had the right to conduct alternative forms of sexual intercourse, the more appropriate argument would be all people, regardless of their sexual orientation, should have the freedom to decide the form of sexual activity they wish to conduct. Such freedom should not be limited by any facially neutral sodomy laws on the basis that it is conducted consensually in private.
 
Addressing possible counter-arguments

The recourse to privacy rights in challenging criminal buggery is viewed as a mere tolerance to the LGBT community, that its members may engage in whatever immoral acts they choose to perform so long as it is away from the public eye. However, the author defends his preferred approach by stating that the above perception stems from an outdated definition of right to privacy. The right to privacy is not limited to right to occupy a free space without government intrusion, should be one that includes the freedom to express one’s personality and make fundamental decisions about one’s intimate relationship.
 
Some argues that we should not overinterpret the judicial promotion of a hypersexualised homosexual stereotype. which only exist in a symbolic level. However, the author avers that most heated legal disputes had been fought on the symbolic level, arguing what kind of message should the law be implicitly sending to the public. The law shapes and defines popular conceptions of reality by including information that is relevant to the elements of the law and excluding those that are not. The judicial promotion of the hypersexualised homosexual stereotype therefore should not be treated lightly.

Photo source: https://images.app.goo.gl/QBSTkAXxKyNiJTwp8
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Author: Karen Lee Man Yee
Summarised by: Ryan Choy (Associate)

Summary
The case of W v Registrar of Marriages about the marriage rights of a male-to-female post-operative transexual sparked the debate concerning the legal meanings of "man" and "woman" in Hong Kong. Karen Lee in this article tackles the debate with consideration of the international recognition of transexuals marriage rights, and explores the relevant implication on same-sex marriage rights and even the definition of marriage itself. Lee concludes her article by arguing that the concept of sexuality is fluid and not binary, and defining it is not easy. Hence, it is necessary to have discussions on the definition of marriage and implications the W case brings, no matter the results.
 
W v Registrar of Marriages
The case W v Registrar of Marriages ("the W case") held in the Court of First Instance that a post-operative male-to-female transsexual was not a woman, hence not eligible to marry his boyfriend. The judgment was not only disappointing for LGBT+ rights advocates, but also confusing for traditionalists as the judgment implied that post-operative transsexual gays and lesbians may marry their partner, implicitly recognising same-sex marriage rights. In light of this confusion, Lee explores the legal grounds of the judgment.
 
From Corbett to Goodwin
The issue in the case of W is whether W could be regarded as a woman for the purpose of entering into a heterosexual marriage. In making its decision, the judgment at the Court of First Instance relied heavily on the half-century old case Corbett v Corbett. The Corbett case held that the "capacity for natural heterosexual intercourse" between a man and woman is the essential character of marriage, hence a marriage between a post-operative male-to-female and a man is void. With this half-century old judgment, the Hong Kong Court held against W.
 
However, the world has changed rapidly since Corbett v Corbett. Multiple jurisdictions have allowed post-operative transsexuals to marry in their new gender, including the EU, Canada, Australia and a few states in the United States. Especially in the case of Goodwin v UK, the European Court of Human Rights held that the UK Government had violated the transsexual claimant’s right to marry in her new gender. These jurisdictions better represent the reality in the world recognition of marriage rights of transsexuals. Nonetheless, such changes are not the end of the issue. This change will certainly lead to multiple possible implications concerning marriage rights and the concept of marriage.
 
The Fluidity of Sexuality
While the judgment in the European Court of Human Rights is clear, its implications are not. The judgment sparks more questions, including what if a personal having received hormonal treatment was medically unfit to undergo a major surgery? Or more fundamentally, should the successful completion of some sort of surgical intervention be an essential prerequisite to the recognition of gender assignment? These questions are essential for considering the issues in W, and in considering these questions, attention must be drawn to sexuality itself.
 
Lee therefore turns to examining the concept of sexuality and its legal implications. The traditional understanding, especially the one in Corbett v Corbett, assumes that there must be a "discoverable, true sex" for every single person. However, the definition becomes more complex as one examines the reality.
 
In examining the transgender community, the wide spectrum of sexuality can be observed and support Lee’s claim that sexuality is a fluid concept. In this community, there are non-transexual people who do not conform to their biological sex, for example cross-dressers generally identifies themselves as heterosexual, but nonetheless behaves differently from their biological sex. There are also individuals that live in ways to reject the dichotomy of gender in society. These individuals reflect the fact that there are numerous possible genders and social identities, that the definitions of "gender" and “sexuality” are not as black and white as the Court assumes it to be. 
 
Under the fluidity of sexuality, it becomes evident that it is impossible to define marriage as a construct that is only between male and female, for it assumes a binary understanding of sex. Lee proposes the following example. If a biological female falls in love with a female-to-male post-operative transsexual who now has a male sexual identity, with some male bodily features such as chest muscles, but retains a biological vagina, should they be allowed to marry each other? This example once again highlights the fluidity of sexuality, that the concept of male and female is a continuum instead of a binary distinction. If this couple is allowed to marry, then the meaning of marriage, man and woman are necessarily fluid and socially constructed, just like how their physical appearances cannot define their sex. The definition of gender has to be in a continuum instead of a dichotomy. Male, transsexuals and female therefor necessarily exist on the same continuous spectrum, and allowing transsexuals to marry therefore logically leads to same-sex marriage or even removing the sexual requirement in marriage.
 
On Social Consensus
Indeed, in W, the Court followed Corbett and adopted a purely biological view on sex determination. However, this does not stop the question of whether the law should be changed. The Judge in the case of W commented that it should be informed by the societal consensus in making its decision, and as there is no societal consensus in Hong Kong on regarding transsexuals as their post-operative sex, the Court held against W. However, the Judge also revealed a dilemma—protection of fundamental rights should not be subject to majority opinion either. Along with the problem that the judgment against W implies recognising marriage right of homosexual transgenders, these problems complicates the case.
 
Conclusion
Lee’s article therefore reveals the complication in the matter of marriage among transsexuals and homosexuals. Even though the W case focuses on regarding W as a woman for the purpose of marriage only, the implication it entails on same-sex marriage, the conception of sexuality and definition of marriage are so complicated. Hence, Lee argues that discussions should begin as soon as possible in Hong Kong regarding these matters.
 
Comments
Lee’s argument is strong in pointing out the difficult problem faced in the issue of transgender marriage rights. Her argument that gender is a continuum poses a great challenge against the traditional understanding of marriage, and indeed requires more discussion in Hong Kong. However, gender being in a continuum does not necessarily imply that it is indivisible and impossible for the Court to draw a line within the continuum, at the very least, it is possible to distinguish male and female, the two extremes in the continuum of sexuality. Lee’s claim that transgender marriage right implies same-sex marriage right therefore might require a stronger support.

 

Author: Athena Liu
Summarised by: Rachel Mo (Associate)
 
The author seeks to argue that the Court of Appeal’s decision in W v Registrar of Marriages in dismissing a postoperative male-to-female transsexual person’s constitutional claim based on the right to privacy and right to marry is a poor outcome for the law and society. It is envisaged that the Court of Final Appeal (“CFA”) would discharge its constitutional duty and consider going beyond as to engage Goodwin v United Kingdom (2002) 35 EHRR 18 as part of the Hong Kong’s human rights jurisprudence. This would imply the HKSAR government to safeguard the right of marriage to minority transgenders.
 
Corbett Test
The Court considered the 1970 holding in Corbett v. Corbett that, for the purpose of marriage, sex was determined by biological criteria and was fixed at birth. This had the effect of excluding post-operative transsexuals (i.e. W) from marrying under British law. 
 
Human Rights Provisions relevant to the constitutional issue on the right to privacy and the right to marry
The question for the Court of Appeal (“CA”) is whether the Corbett test is inconsistent with Hong Kong's constitutional protection of the right to privacy (i.e. Article 14, Hong Kong Bill of Rights) and the right to marry (Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights). 
 
Jurisprudence of the European Court of Human Rights (ECtHR) in Sheffield and Horsham v United Kingdom (Sheffield) and Goodwin v UK (Goodwin)
Both cases concerned the European Convention which protects the right to respect for
private life (Article 8) and the right to marry (Article 12).
 
The author further explains (i) why Goodwin unanimously decided not to follow Sheffield and (ii) how, with Goodwin's landmark development, the rights of a post-operative transsexual person to private life and to marry in their acquired sex eventually prevailed. Goodwin's interpretation of Article 8 as protecting human dignity, human freedom and personal autonomy, was fundamental to its conclusion that the United Kingdom had violated both Article 8 and Article 12.
 
W contended that the right to marry is a strong one and ‘is intertwined with a person's dignity and well-being’. Her claim is same as those in Sheffield and Goodwin. It is argued that it is important for CFA to note that before analysing the right to marry, the right to privacy is fully canvassed so that its impact upon the right of a post-operative transsexual person to marry in their acquired sex may be fully appreciated.
 
In both cases, the claimants alleged that the failure of the UK to recognize a post-operative transsexual person's new gender amounted to a violation of Art 8's positive obligation. ECtHR needs to strike a fair balance between the applicants' rights and the public interest. The outcome of the assessment differs in the two cases.
 
In Goodwin, through balancing the right of “transsexuals to personal development and to physical and moral security” against “difficulties posed” for the State and “important repercussions which any major change in the system will inevitably have”. The government have to show there exists sufficient public interests against gender recognition to justify their stance.
Goodwin found that no concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals. Sheffield took the view that transsexualism raises complex social issues, and the claimant was not suffering sufficiently serious as to override the state’s margin of appreciation. As a result, the UK had no positive obligation to modify its system of birth registration.
 
Court of Appeal's Treatment of Ms W's Claim
The author focuses on three aspects of the Court of Appeal's judgment under the heading “the
constitutional issue”:
1. the way that Ms W's claim was effectively recast,
2. the summary of Goodwin which suggests a limited understanding of the case, and
3. the fact that the Court of Appeal appeared to have been more influenced by the discarded decision of Sheffield than by Goodwin.
 
Even though Ms W's claim is factually almost identical with that in Goodwin, her case was dealt with differently. Goodwin reached its decision based on the importance of the right to respect for private life (mandating gender recognition) before giving its assessment on the right to marry. In so doing, the conclusion on gender recognition was able to positively influence the outcome of Ms. Goodwin's right to marry.
 
By focusing predominantly on the right to marry, omitting reference to personal autonomy underlying the interpretation of the right to privacy, and reducing the right to marry to one of definition, W’s claim was rejected. The CA thus failed to engage in a complete assessment of whether denying Ms. W the ability to marry her male partner impeded her right to marry, nor whether such a restriction was rational, necessary and proportionate.
 
It is also acknowledged by the author that several significant features in Goodwin were not accurately refereed to, leading to the dismissal of W’s claim. The CA failed to take into account the crucial passages which addressed the fundamental relevance of personal autonomy. Two important factors including the 1) concept of personal autonomy and 2) a continuing international trend towards legal recognition of the new gender identity of post-operative transsexual persons were not given sufficient weight.
 
The CA never explicitly stated that it preferred the reasoning in Sheffield, yet judging from the re-casting of Ms. W's claim as well as the limited understanding of Goodwin, it would seem that the CA was influenced by Sheffield more than Goodwin. The Court did not follow Goodwin's acceptance of the importance of a continuing “international trend” in favour of gender recognition. Instead, it followed the discarded search for “consensus” in Sheffield.
 
“Consensus” is less flexible to trend, where the sense of ‘majority’ is required and the CA opined that the degree of changing societal attitudes internationally falls short of the degree to constitute the reach of consensus.
 
Conclusion
With CA preferring Sheffield, the author expressed regrets on the Court’s dismissal of W’s constitutional claim with the lack of justification of the reasons for framing W’s claim differently, applying Goodwin in such a limited way and why the discarded Sheffield decision is preferred. Regarding ‘consensus’, though it may be commonly regarded as no societal consensus in Hong Kong on post-operative transsexual person's right to marry, Andrew Cheng J’s statement in the Court of First Instance decision in W v Registrar of Marriages may be conducive to our understanding where he stated that fundamental rights are an exception to the democratic principle of majority rule.
 
In addition, the author argued that logical flaw exists in Respondents’ case. Even though there exists no societal consensus, the government publicly fund sex reassignment surgery and allow change of ID cards. However, from W’s case, the government adopt the same reasoning (i.e. apparent lack of societal consensus) to defend its non-acceptance of the consequence of SRS. This illustrates the poor reality as even if W shows her ID card to the Registrar of Marriages, she is only entitled to marry a female.
 
The author opined that the first question to be addressed is the question of gender identity of a person before the question of the sex of a person for the purpose of marriage can even arise. The lack of understanding of Goodwin and the underlying issue that gender identity concerns any person irrespective of his or her relationships to other people should be acknowledged as to generate a desirable outcome for the minority.
 
Comments
The author has made coherent arguments in considering the CA judgement as not conducive towards the development of equal rights. The court is reluctant to allow flexibility in its reasoning and it is suggested that a thorough understanding towards gender identity would be beneficial to Hong Kong in jumping on the bandwagon of international communities under the current legal climate. ​

Photo: BBC
https://www.bbc.com/news/world-asia-48538893

Author: Roddy Shaw

Summarised by Phyllis Lee (Associate)

Introduction:

Many socio-legal scholars support the advancement of LGBT which comprise of five stages, namely, equality in gaining depathologised statuses, equality in criminal law, equal access to employment, equal access to spousal/partnership rights and equal access to parental rights.

Hong Kong has only completed the second stage in striving for equality in criminal law. As it could be seen in Leung TC William Roy v Secretary for Justice[1] and Secretary for Justice v Yau Yuklung Zigo[2], Hong Kong is now considering granting equal employment opportunity to LGBT individuals. 


Historical Developments of LGBT Rights:

Up till 1973, homosexuality was still classified as a mental disorder by the American Psychiatric Association. Nowadays, it would be wrong for society or employers to treat LGBT individuals as mental patients. Nonetheless, Hong Kong is still haunted by the historical pathologisation of homosexuality.

Since 1990s, there had been a heightened level of awareness of human rights and equality in Hong Kong. Anna Wu Hung-yuk’s Equal Opportunity Bill set out to be an all-encompassing bill which covered many possible grounds of discrimination, including sex, disability, family status, sexuality, age, race and spent convictions. Her bill was eventually defeated by three government bills in 1995 which later became the current Sex Discrimination Ordinance (Cap 480), Disability Discrimination Ordinance (Cap 487) and the Family Status Discrimination Ordinance (Cap 527). 
Despite the Government’s failure to provide the LGBT community with sufficient legal protection, a few positive steps were taken to promote LGBT inclusion in the workplace. For instance, in 1996, the Home Affairs Bureau issued a non-binding Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation. Furthermore, a hotline for enquiries and complaints regarding sexual orientation and gender identity was established. Yet, these measures were criticised by the society to be ineffective. Considering such inadequacy, some LGBT employees turned to the Equal Opportunities Commission. The Commission’s complaints have proceeded through complaint inception, early conciliation, investigation and conciliation processes, resulting in apology letters, financial compensation and changes in discriminatory policies. 


Two Perspectives of Workplace LGBT Rights:

From the narrower perspective, the legal obligations for employers in Hong Kong are very limited in relation to LGBT employees.  The only statutory obligations are to ensure that there is no sexual harassment towards LGBT employees and that there is no discrimination against or disability harassment towards transgender employees. When the government is the employer, a wider range of obligations are set out in HKBORO s7(1), which requires for strict compliance.

From the broader perspective, more compliance is called for through the forms of corporate social responsibility, business and human rights legal norms, corporate governance, risk management and transparency, as well as business incentives for compliance. In order to promote LGBT inclusion in the workplace while discharging an employer’s obligations, the suggested measures are five-fold. Firstly, an equal opportunity policy that covers LGBT employees should be developed and publicised. Secondly, diversity training to all levels of staff should be provided. Thirdly, a grievance handling mechanism should be put in place. Fourthly, all levels of staff should be engaged. Last but not least, policies, practices and benefits should be regularly reviewed and audited. 

Comments :

Instead of being deterred by the law, it is highly probable that the discrimination towards LGBT in the workplace could only be successfully limited through the above “broad perspectives”.  More legislative attempts should be called for to fully protect the LGBT community’s rights in Hong Kong’s workplace. 

[1] [2006]  HKCU  1585
[2] [2007] 3 HKC 545

Source: SCMP
https://www.scmp.com/comment/letters/article/3011315/hong-kong-will-get-there-lgbt-rights-give-it-time

Author: Kelley Loper
Summarised by Sam Ko (Associate)

Summary

As its title suggests, the core thesis of the article is the author’s view over the prospects for same-sex relationship recognition in Hong Kong.
 
The author observed a list of factors which are influential to courts’ position when they are tasked to adjudicate LGBT rights issues: 

1. First, local public opinion and their acceptance towards LGBT rights are crucial to legal reforms in both legislature and judiciary. To courts, public consensus is often the greatest justification for it to extend the content of certain rights.
2. Second, the development in international law regarding LGBT rights is also relevant since Hong Kong courts often refer to judgments from foreign jurisdictions such as England, Australia, New Zealand, etc. and international/regional judicial organs such as the European Court of Human Rights.
3. Third, the Hong Kong courts’ increasing and continuous recognition of the importance of substantive equality is also crucial to a further liberalisation of LGBT rights. It ensures LGBT persons are not de facto disadvantaged despite the law applies equally to everyone in society.
4. Lastly, the author also pointed to the apolitical nature of LGBT rights which renders the court more willing to defend rights of a vulnerable minority which are at stake.

 
After examining comprehensively the Hong Kong judgments[1] and their occasional emphasis on the absence of right to marriage for same-sex couples in Hong Kong, the author is overall pessimistic towards marriage rights for same-sex couples but more optimistic towards civil partnerships in the near future.
 
The article also examines in great details the international legal position as to LGBT rights and the constitutional and discrimination law framework in Hong Kong. For example, the author highlighted how Hong Kong courts utilised international legal developments, e.g., those in the European Court of Human Rights, and strengthened their protection for LGBT persons against indirect discrimination, ensuring that they are not in substance disadvantaged even if the laws or policies applied to them are applied equally on the surface to their non-LGBT counterparts.
 
This part of the article provides a very good guide for readers who are interested in knowing more about the legal framework of how international and local courts deal with LGBT rights and discrimination cases.
 
Postscript

The article predated a number of important judgments in different levels of court in Hong Kong. Unfortunately, the author’s pessimism seems to have materialised: The Court of Final Appeal reiterated the absence of same-sex marriage rights in Hong Kong law in Leung Chun Kwong v. Secretary for the Civil Service [2], leading to the First Instance decisions in MK v. Government of HKSAR [3] and Sham Tsz Kit v. Secretary for Justice [4], which respectively deny same-sex couples the right to marriage and a general recognition of their marriage formed overseas.


[1] QT v. Director of Immigration [2018] 21 HKCFAR 324 (Court of Final Appeal) and Leung Chun Kwong v. Secretary for the Civil Service [2018] 3 HKLRD 84 (Court of Appeal).

[2] [2019] HKCFA 19

[3] [2019] HKCFI 2518

[4] [2020] HKCFI 2411

Author: Sam Winter
Summarised by: Yoyo Lau (Associate)

Inspired by a Hong Kong Law Journal article which called for the Hong Kong government to enact the gender recognition legislation and the Court of Final Appeal decision of W v Registrar of Marriages, Sam Winter discusses the situation of the transsexuals in Hong Kong. It is noted that the Hong Kong government merely provides for gender recognition in relation to marriage, and only in the cases that the transsexuals concerned have undergone full sex reassignment surgery. In the article, Winter proposes a comprehensive and inclusive gender recognition legislation instead.
 
The Importance of Legal Gender Recognition for the Transsexuals

The transsexual people are the ones who display a desire to live and be accepted as a member of the opposite sex. In Hong Kong, they have to face many difficulties in their daily lives, including stigma, prejudice, discrimination, harassment and abuse. To improve their current situation, it is essential for the government to provide legal protection to the transsexuals in order to maintain their fundamental rights. Concerning legal arguments, refusing the opportunities of the transsexuals for gender recognition may breach the human rights law and other international laws regarding sexual orientation and gender identity. Hence, there is a crucial need for legal gender recognition for the transsexuals.
 
Objections against Preconditions for Gender Recognition that Involve Medical Procedures

When it comes to the gender recognition law in Hong Kong, it is strictly enforced that transsexuals are to carry out sex reassignment surgery before their experienced gender can be recognized. This is deemed to be problematic. In reality, some transsexuals in Hong Kong may not prefer carrying out any medical procedures for bringing their bodies in line with their experienced gender. Thus, the preconditions to undergo sex reassignment surgery may leave them in a limbo, affecting their psychological health and well-being. Moreover, the preconditions may put the transsexuals at risk of humiliating and discriminatory treatment. The preconditions may also include some coercive medicines and an assault on bodily integrity, leaving the transsexuals in a position that they are unable to give entirely free consent. Therefore, it is suggested that the gender recognition legislation in Hong Kong should not include any preconditions to undergo medical treatments.
 
Proposal of the Gender Recognition Legislation

The gender recognition legislations in different regions of the world are generally less uncertain and restrictive than that implemented by the Hong Kong government. Specifically, United Kingdom’s Gender Recognition Act of 2004 is used as a model for reference. The Act offers a mechanism that the transsexuals can apply to a Gender Recognition Panel for a Gender Recognition Certificate. The Act is comprehensive in the way that it extends gender recognition in various areas but not limited to marriage. It is also inclusive as it does not matter if the transsexuals have undergone any medical procedures. It is recommended that the Hong Kong government follow the practice in the United Kingdom so that the gender recognition legislation is more beneficial to the transsexuals in Hong Kong.
 
Comments

Through focusing on the transsexual people, the article points out the difficulties of the LGBT+ community and the lack of legal support to safeguard their fundamental rights. It is suggested that the Hong Kong government can make more efforts to know about the plight and need of the LGBT+ community, and introduce practical, comprehensive and inclusive policies to support their daily living.

Source: BMC https://blogs.biomedcentral.com/bmcseriesblog/2018/06/22/celebrating-pride-recognizing-mental-health-challenges-lgbtq-community/

Author: Wally Suphap
Summarised by Tsang Zi Kan (Associate)

The article presents the author’s views and observations on the changing legal and social landscapes regarding LGBT+ rights, with reference to the landmark Court of Final Appeal case of QT v Director of Immigration [2018] HKCFA 28.

Summary of the QT case

QT and SS is a lesbian couple who entered into a legally valid civil partnership in England, and SS was employed in Hong Kong. QT’s application for a dependent visa was rejected by the Immigration Department on the ground that the scope of the policy did not cover the couple. The Department’s interpretation of “spouse” was with reference to the definition of marriage under the Hong Kong Marriage Ordinance, rather than the law in the couple’s home jurisdiction. The judicial review, on the issue of whether the denial was unlawful discrimination of QT’s sexual orientation, was successful in the CFA. The reasoning was that the policy was not rationally connected to the Department’s stated aims of immigration control, and attracting and retaining talent. As the evidence to prove the existence of a partnership between heterosexual and homosexual couples is the same, there would not be any undue administrative burden. The CFA opined that the Department’s application of Hong Kong laws and public policy was discriminatory and inconsistent. It also stressed that the government will be required to provide ‘very weighty reasons’ to justify the difference in treatment, upon a more stringent standard of judicial review.

Unprecedented attention in the business community

The author notices the unprecedented attention from the business community when a group of 12 leading financial institutions applied for leave to intervene in the case just before the CA hearing. Later, a total of 31 firms (15 financial firms and 16 law firms, who are member firms of the LGBT+ Interbank Forum and the Hong Kong Gay and Lesbian Attorneys Network), submitted intervention applications as interested third parties to present their unique perspectives. They aimed to emphasise the importance of recruiting and maintaining world-class talents as HK carries the role of a global commercial centre. The author points out that despite the denial of the intervention applications, the valuable opinions of the firms were reflected in the CA and CFA judgments.

Legal landscape and public sentiment

While strategic litigation drives the recognition of LGBT+ rights, the author observes that there has been an increase in public support for same-sex marriage and legal protections against sexual-orientation discrimination. There also has been developments of LGBT+ laws around the globe, such as in the US, Australia, Taiwan, India and Japan. Whereas 26 countries in total have achieved marriage equality and many countries legally recognize homosexual marriages and unions abroad, many LGBT+ people in various jurisdictions still lack legal protections and are even criminalised and punishable by imprisonment or capital punishment.

The author also notes the growing social momentum regarding LGBT+ issues in Hong Kong, as well as in the private sector. Companies are gradually more concerned about LGBT+ workplace diversity and inclusion, and the establishment of forums for LGBT+ professionals is conducive for networking and collaboration.

The author remarks that whether Hong Kong will have legislative and legal advancements remains to be seen and states that the upcoming LGBT+ discrimination cases will be opportunities for jurisprudence development, which will be significant to the protection of fundamental rights and dignity of the LGBT+ community.

Comments

It is heartening to see more recognition of LGBT+ inclusion in the community and commercial sector, as well as in favourable court decisions protecting rights of the sexual minority. However, it is hoped that the government and the legislature would also take the initiative to introduce more LGBT+ friendly policies and legislations to ensure comprehensive protection of LGBT+ rights.

Author: Holning Lau & Rebecca L. Stotzer

Summarised by Phyllis Lee (Associate)

Introduction

Through the development of case laws, Hong Kong’s laws have been reformed significantly to protect the rights of sexual minorities. Nonetheless, Hong Kong remains to offer no legal protection against sexual orientation discrimination in the private sphere, leaving the problem of employment discrimination untackled. For instance, despite the Equal Opportunities Commission’s application of the Disability Discrimination Ordinance in resolving complaints on one’s transgender status, it has been criticized for its insensitivity in handling such cases.

Conduction of the Survey

The nature and extent of sexual orientation discrimination are still under-researched in Hong Kong. Although many studies have been conducted in other parts of the world to reflect how many respondents are troubled by sexual orientation discrimination, foreign studies’ applicability to Hong Kong is limited due to the underlying cultural differences.
 
Thus, the author’s survey aims to examine 1) the prevalence of sexual orientation-based discrimination, (2) risk factors associated with experiencing discrimination, and (3) the relationship between experiencing employment discrimination and psychological outcomes in Hong Kong.
 
First, demographic questions concerning the respondents’ personal information and statuses were presented. Next, the survey asked basic questions about life circumstances, such as the past experiences of workplace discrimination and whether they have disclosed their sexual orientation to colleagues. Lastly, questions regarding respondents’ psychological concerns were raised.

Findings of the Survey

Nearly one-third of respondents reported discrimination which was simultaneously associated with negative psychological outcomes. Moreover, the study suggests that sexual orientation minorities in Hong Kong often suffer indirect discrimination in the form of pressure to remain closeted.

Comments
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The survey reveals the severity of Hong Kong’s workplace discrimination which the policy and legislation makers have often turned a blind eye to. The survey’s findings call for the urgent implementation of sexual orientation anti-discrimination law to address the inequality and prejudice that is highly prevalent in the private employment sector.