Summary: The Hong Kong Equal Opportunities Commission: Calling for a New Avatar

Author: Puja Kapai
Summarised by Sam Ko (Associated)

​This 2009 article by contains comprehensive critiques as to the organizational and practical ineffectiveness of the Hong Kong Equal Opportunities Commission (“EOC”) in fighting discrimination. Among the wide range of defects within the EOC, the author specifically highlighted how the Commission falls short in fighting against discrimination on the basis of sexual-orientation and gender identity in two aspects: (i) Passive role in advocacy and (ii) EOC being tainted by discriminatory scandal.
 
Passive role in advocacy

The author contended that the EOC always justifies its inaction and inertia in discriminatory treatments encountered by the LGBTQ+ community with the regrettable reality that there has yet to be an anti-discrimination legislation in Hong Kong covering discrimination against the group. Worse still, the ECO publicly echoed the government’s contention that Hong Kong is not ready for legal control of such nature because of the persisting conservative public mood.
 
The author then criticised such passive attitude of the EOC as damaging Hong Kong’s image as a “world-class international city”. She considered the lack of EOC’s advocacy as a failure to utilise its position and ultimately the law to raise awareness of LGBTQ+ discrimination and thereby transform societal perceptions. She also drew a comparison between the EOC and its Korean counterpart, the Korean Human Rights Commission, which has proactively lobbied the Korean government to make laws to fight LGBTQ+ discrimination.
 
Discriminatory scandal

The author pointed out the unfortunate incident where the EOC referred to a transexual female complainant according to her biological gender, “Mr.”. Although the EOC cited not implausible legal reason[1] for the way they addressed the complainant. The author contended that the Commission should understand its unique position as a potential role model for the whole society on anti-discriminatory practice.
 
Other critiques and suggestions concerning the EOC in general

The author further offered several critiques on the effectiveness of the EOC as to its (i) over-emphasis on conciliation with rare litigation support for complainants, (ii) lack of streamlined plan and focus on subtle discrimination investigation, (iii) lack of emphasis on positive obligations in drafting codes of practice for employers in the area of anti-discrimination laws, and made some suggestions for future development such as the setting up of a new legal mechanism to deal with discrimination cases, further safeguards on the EOC’s independence and accountability, etc.
 
Epilogue

On one hand, it is indeed true and fair for the author to criticise the general passive attitude of the EOC in dealing with controversial discrimination issues such as those concern LGBTQ+ community. On the other hand, the EOC has not been silent on the discrimination and prejudice faced by the community. The EOC has made submission to cases concerning criminal liability regarding consensual male homosexual activities as Amici Curiae (Friend of the court)[2]. It is also noteworthy that in the decade succeeding the publication of the article in 2009, the EOC has been playing a more active role in LGBTQ+ rights advocacy. The chairman of the EOC has given various speeches in support of the community and attended various events including the Hong Kong Pride Parade. Also, in 2016, the EOC published a comprehensive study of anti-discrimination laws regarding LGBTQ+ community[3] and made submission to the Legislative Council[4].
 
We hope to see more to be achieved by the EOC for the LGBTQ+ community in the future.


[1] To be specific, the EOC contended that they would appear partial by referring to the complainant when female pronouns or titles since the complaint concerns alleged disability discrimination from the complainant’s employer as to her gender identity disorder. For more details of the incident see https://www.scmp.com/article/634486/eoc-under-fire-using-mr-transsexual-case .
[2] Leung T C William Roy v. Secretary for Justice [2006] HKCA 360 (A case which ultimately lower the legal age of consent to male homosexual anal sex from 21 to 16); Secretary for Justice v. Yau Yuk Lung Zigo and Another [2007] HKCFA 50 (A case which strikes down the criminal provision which imposed heavier punishment on anal sex committed in public between men than vaginal or anal sex committed in public between man and woman).
[3] Suen, Y.T., Wong, A.W.C, Barrow, A., Wong, M.Y., Mak, W.S., Choi, P.K., Lam, C.M., Lau, T.F. (2016). Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status. For more details see https://www.eoc.org.hk/EOC/GraphicsFolder/InforCenter/Research/content.aspx?ItemID=13585 .
[4] For more details see https://www.eoc.org.hk/eoc/upload/2016215992143710.pdf .