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Author: Roddy Shaw
Summarised by Phyllis Lee (Associate)
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 and Secretary for Justice v Yau Yuklung Zigo, 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.
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.
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