Summary: The Courts, Public Opinion and the Rights of Lesbian, Gay, Bisexual, and Transgender Persons: A Hong Kong Perspective

Author: Kelley Loper
Summarised by Phyllis Lee (Associate)

The author notes that in recent years, many courts have considered societal consensus in cases which concern LGBT+ rights. The Hong Kong Court of Final Appeal (CFA) held in favour of the applicants in W v Registrar of Marriages, QT v Director of Immigration, and Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue. These rulings confirm that the prevailing views of the community or the absence of majority consensus should not function to restrict the rights of members of the LGBT+ community.  
 
The Role of the Courts 

Judges are tasked with protecting the rights of minorities against the ‘tyranny of the majority’ (Mill, 1859 [1]; Maddison, 1788 [2]). However, some argue that courts do, in fact, take societal consensus into consideration in certain circumstances; judges do not operate in vacuum. Some courts, including the Hong Kong CFA, have employed strategic delays including the deferral of judgments or the postponement of the recognition of rights. 
 
Consensus and Hong Kong LGBT Rights’ Jurisprudence 

In the three cases mentioned above, the CFA applied human rights provisions in the Basic Law (Hong Kong’s constitutional document) and the Bill of Rights. The court ruled that the Basic Law is a ‘living instruments intended to meet changing needs and circumstances’ and the applicants’ fundamental rights must be given a generous interpretation.  
 
The Courts as Consensus-Builders 

The courts can manage competing interests and uphold judicial legitimacy simultaneously. In the view of the author, judicial awareness of the majority’s views could strengthen rather than subvert the court’s role as the custodian of minority rights. For instance, the court can deliberately and comprehensively explain and even celebrate diversity as constitutional value. Thus, the court can contribute directly to democratic discussions in society. Protecting the rights of minorities ensures a better functioning democracy built on the core values of equality, dignity, and inclusion. 
 
Comments 

If the courts are only concerned about majority opinion, injustice would not be remedied and the human rights of the marginalized groups would be undermined. By taking core constitutional values such as equality, dignity, and diversity into account Hong Kong courts can facilitate the progression of LGBT+ rights and mitigate tensions between majority and minority views in society.
 
For the full version of this article see here.
 
[1] Mill, John Stuart (1859) On Liberty. London: John W Parker and Son, West Strand. 
[2] Madison, James (1788) Federalist Papers, No 51.