Summary: Leung v Secretary for Justice: Privacy, Equality and the Hypersexualised Homosexual Stereotype

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.