Summary: Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong

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