A brief history of homophobia as a visible force against policy reform in Hong Kong

Ashley Kong
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Image Source: The Legislative Council of the HKSAR of the PRC

Author Ashley Kong is a law student at HKU enrolled in the JD programme.

Homophobia is not just a concept: it has visible effects on local policy and laws. The presence and impact of such irrational hatred and intolerance are well documented in archival records and historical news. The following lays out a few examples of how homophobia has blocked some important policy and legislative reforms in local history.

LegCo Motion paving way for same-sex union

In November 2018, then LegCo Member Ray CHAN Chi-Chuen moved a Member’s motion not intended to have legislative effect on “Studying the formulation of policies for homosexual couples to enter into a union” as follows:

That this Council urges the Government to study the formulation of policies for homosexual couples to enter into a union so that they can enjoy equal rights as heterosexual couples. [1]

The motion wording was very straightforward indeed. Actually, the motion did not even directly demand the immediate consolidation of a policy framework that enables same-sex union; it only humbly suggested the HKSAR Government should begin researching policy options conducive to same-sex couples enjoying the same family rights as straight couples.

As Ray CHAN eloquently put forward in his speech to move the motion in LegCo on 22 November 2018, even then he foresaw a motion that cut to the subject of implementing same-sex union will likely fail to pass, due to a homophobic majority at the LegCo and the HKSAR Government’s general reluctance to act on it:

You  may  have  noted  that  the  title  of  this  motion  is  to  urge  the  Government to “study the formulation of policies for homosexual couples to enter into  a  union”,  but  there  is  no  mention  of  specific  policies  to  be  formulated,  and  neither have such proposals as same-sex marriage, civil union or civil partnership been put forward. Why should I handle the motion in this way? Some people have asked  me  why  I  did  not  seek  to  move  a  motion  to  directly  urge  the  Government to enact legislation relating to same-sex marriage, since a motion of this  sort  has  no  binding  effect  and  will  unlikely  be  passed. Even if  such  a  motion  is  passed,  the  Government  may  choose  to  ignore  it,  so  why  not  put  forward an even more earth-shattering request? [2] 

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There  are  also  some  other  more  controversial  issues,  such  as  the  rights  to  adopt children, the rights to conceive a child by means of artificial insemination, and  such  issues  are  indeed  highly  controversial. Hence,  in  the  debate  held  today, I do not wish to give certain Members a chance to express their opposition like a fundamentalist to any legislation and policies that would promote the rights of  sexual  minorities,  exaggerate  the  problem  and  even  oppose  a  study  on  the  issue. What logic do they have? They refuse to give in an inch when it comes to the  introduction  of  legislation  against  sexual  orientation  discrimination  or  the  formulation  of  a  system  for  homosexual  couples  to  enter  into  a  union. When there are still 100 steps away from the finish line, why they refuse to give in one step? According  to  them,  as  long  as  we  are  allowed  to  take  one  step  forward,  the  distance  from  the  finish  line  will  be  shortened  to  only  99  steps,  and  hence  even a single step will not be allowed. I really cannot have a debate with people like them. [3] 

These words aptly captured the harsh reality encountered by various advocates, campaigners, and supporters of policy reforms fighting for years to rectify discrimination and inequality suffered by the LGBTQ+ community in Hong Kong. Very often any attempt to initiate discussion will quickly be shut down, as naysayers quickly jump to a fundamentalist attitude of absolute detestation even at the mere mention of alternative viewpoints and options, let alone to begin any dialogue. It was no surprise when another LegCo Member Dr. Priscilla LEUNG Mei-fun moved an amendment to the complete opposite effect of the motion, which if incorporated, would result in the following wording:

That this Council supports social inclusion, and respect the family values which Chinese societies cherish and Hong Kong’s existing marriage institution based on ‘one man and one woman’ and ‘one husband and one wife’; in this connection, for upholding the stability of the marriage institution and protecting the relevant rights and interests under the existing institution, this Council urges the Government that in its policy studies of equal rights for people of different sexual orientations, it should refrain from shaking the existing marriage institution as a show of respect for the mainstream values in Hong Kong society, and should, on the premise of ensuring children’s healthy development, uphold the marriage institution based on ‘one man and one woman’ and ‘one husband and one wife’ to ensure social and family stability. [4]

Ray CHAN’s motion failed to pass in LegCo by a split vote, with a negative vote of 7 ‘yes’ ballots, 15 ‘no’ ballots, 6 ‘abstain’ ballots in the functional constituencies, and a passing vote of 17 ‘yes’ ballots and 12 ‘no’ ballots in the geographical constituencies. Priscilla LEUNG’s amendment was also negatived by a split vote, with a passing vote of 17 ‘yes’ ballots, 7 ‘no’ ballots and 5 ‘abstain’ ballots in the functional constituencies, and a negative vote of 12 ‘yes’ ballots, 14 ‘no’ ballots and 3 ‘abstain’ ballots in the geographical constituencies.

The difference in attitudes towards LGBTQ+ rights between the two sections of LegCo may be attributed to pro-establishment lawmakers outnumbering more liberal democratic lawmakers in the functional constituencies. Pro-establishment lawmakers tend to not only be pro-Beijing on its political compass, but also embrace conservative stances in various policy issues… Perhaps with the exception of Regina IP-LAU Suk-yee, who consistently supported LGBTQ+ rights in her voting records. Meanwhile, James TO Kun-sun, a LegCo Member in the functional constituencies, despite being a prominent member of the Democratic Party, did vote against the motion citing his Christian faith, an outlier in his own party which all but one of their lawmakers voted in favour of the motion. In that vein, it could be said that homophobia, or on the flipside, LGBTQ+ rights, is an area of public policy which interestingly transcends the long-time political divide in the city.

Some earlier examples of LegCo motions

In November 2012, then LegCo Member Cyd HO Sau-lan moved a motion not intended to have legislative effect on “equal rights for people of different sexual orientations”:

That this Council urges the Government to expeditiously launch public consultation on enacting legislation to safeguard equal opportunities for and the basic rights of people of different sexual orientations. [5]

The motion was negatived by a split vote on 7 November 2012 with a negative vote of 10 ‘yes’ ballots, 17 ‘no’ ballots, 8 ‘abstain’ ballots in the functional constituencies, and a passing vote of 21 ‘yes’ ballots, 8 ‘no’ ballots and 4 ‘abstain’ ballots in the geographical constituencies.

In October 2013, Ray CHAN moved a similar motion on “transgender marriage”:

That the Court of Final Appeal (‘CFA’) earlier ruled that transsexual people are entitled to marriage right; the judgment stated that the relevant provisions in the Marriage Ordinance (‘MO’) and the Matrimonial Causes Ordinance (‘MCO’) restricting the criteria for ascertaining a person’s gender to merely biological factors are unconstitutional; CFA also held that all circumstances relevant to assessing a person’s sexual identity at the time of the proposed marriage, including biological, psychological and social elements and whether any sex reassignment surgery has occurred, need to be considered; in this connection, this Council urges the Government to expeditiously comply with CFA’s judgment and amend MO and MCO, so that transgender people can enjoy marriage right and related legal rights according to sexual identity they adopt, and to expeditiously enact a gender recognition ordinance to address the various legal problems arising from sex reassignment. [6]

This motion received an overwhelmingly negative vote, failing to achieve a simple majority vote in neither section of LegCo. The functional constituencies negatived it by 6 ‘yes’ ballots, 18 ‘no’ ballots and 6 ‘abstain’ ballots. The geographical constituencies likewise negatived it by 12 ‘yes’ ballots, 11 ‘no’ ballots and 5 ‘abstain’ ballots. As expected, the two largest pro-establishment parties, the Democratic Alliance for the Betterment of Hong Kong and the Federation of Trade Unions, voted against the motion. On the democratic camp, all Democratic Party lawmakers also voted no.

Domestic Violence (Amendment) Bill 2007

In June 2007, the HKSAR Government introduced the Domestic Violence (Amendment) Bill 2007 [7] (the “2007 Bill”) with an aim to enhance prevention of domestic violence in Hong Kong households and to protect victims. The 2007 Bill enables a party to a marriage or a cohabitation relationship to apply for court injunctions, non-molestation orders, and exclusion orders from existing custody or access where the party and related dependants feel realistic fear of bodily harm or other abuse. The court may, upon application, also grant authorization of arrest if there are reasons to believe the subject of such orders may in any way physically threaten the applicant party.

The legislative reform was the result of years of advocacy by members of the local civil society concerned with the prevalence of domestic violence in Hong Kong, which culminated in the 2006 review by the United Nations Committee on the Elimination of Discrimination against Women (the “Committee”) on Hong Kong’s implementation of the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). In its concluding comments for the 2007 review cycle, the committee advised:

While commending the efforts of the Government to protect women against violence, including the “zero tolerance on domestic violence” principle, the Committee expresses concern at the low prosecution rate of domestic violence in the Hong Kong Special Administrative Region.

The Committee urges the Government of the Hong Kong Special Administrative Region to strengthen its efforts in combating all forms of violence against women, including domestic violence. It urges the Government to enhance women’s access to justice, including by ensuring an effective response to complaints and carrying out more proactive investigations of complaints, and to improve gender-sensitivity training for judicial and law enforcement officials and health and social workers on violence against women. The Committee encourages the Government to re-establish the Hong Kong rape crisis centres so as to ensure that victims of sexual violence receive specific attention and counselling in full anonymity. The Committee recommends that the Government allocate sufficient resources to combat all forms of violence against women, including domestic violence, and to provide details about budget allocation in its next periodic report. (para. 35, 36) [8]

When the 2007 Bill underwent scrutiny by the legislature, LegCo invited community stakeholders to participate in the consultation. A number of conservative groups, notably the Hong Kong Alliance for the Family (維護家庭聯盟) and the Society for Truth and Light (明光社), vehemently lobbied against the expansion of legal protection from domestic violence to cohabiting same-sex couples. In face of such fanatic criticism, the HKSAR Government adopted a midway approach – it stood by the inclusion of same-sex cohabiting couples into the 2007 Bill’s purview, for the reason that domestic violence is a problem to be dealt with head-on, but denied any intention to push forward same-sex marriage in Hong Kong:

Throughout  the  deliberation  process  of  the  Bills  Committee,  members  consider that expanding the protection under the [Domestic Violence Ordinance] to cover persons in same-sex  cohabitation  merely  seeks  to  protect  such  persons  from  being  molested  by  their  partners,  which  should  not  be  regarded  as  equivalent  to  giving legal  recognition to same sex relationships or providing legal entitlements to persons in such relationships. In light of members’ views, the Government holds after careful examination that, in respect of this policy area, domestic violence can spiral into personal injuries or even fatality in a short space of time.  In view of the immediacy and urgency, we agree to expand the scope of the Bill to cover same sex cohabitants.  Nevertheless, the Administration emphasizes that the proposed extension of the scope of the [Domestic Violence Ordinance] to cover such cohabitation is only introduced in regard to the distinct and unique context of domestic violence. It remains an explicit government policy not to recognize same sex relationships. [9]

Luckily, despite such opposition, the 2007 Bill achieved simple majority at LegCo by a vote by hands without a ballot record. The new law became effective on 1 August 2008. We may find solace in the fact that in a more distant past in local history, love did once triumph against the force of homophobia, which is still very much alive today and violently beating against many worthwhile causes and reforms for a society friendlier to all.
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References

[1] HKSAR LegCo, Motion on “Studying the formulation of policies for homosexual couples to enter into a union”, Council meeting of 20 June 2018, PDF: https://www.legco.gov.hk/yr17-18/english/counmtg/motion/m_papers/cm20180620cb3-670-e.pdf

[2] HKSAR LegCo, “Official Records of Proceedings: Thursday, 22 November 2018, The Council Continued to meet at Nine o’clock”, Hong Kong Hansard, p. 3061, PDF: https://www.legco.gov.hk/yr18-19/english/counmtg/hansard/cm20181122-translate-e.pdf

[3] ​HKSAR LegCo, “Official Records of Proceedings: Thursday, 22 November 2018, The Council Continued to meet at Nine o’clock”, Hong Kong Hansard, p. 3063, PDF: https://www.legco.gov.hk/yr18-19/english/counmtg/hansard/cm20181122-translate-e.pdf
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[4] HKSAR LegCo, “Amendments to motion on ‘Studying the formulation of policies for homosexual couples to enter into a union’”, PDF: https://www.legco.gov.hk/yr17-18/english/counmtg/motion/m_papers/cm20180704cb3-704-e.pdf

[5] HKSAR LegCo, Motion on “Equal rights for people of different sexual orientations”, PDF: https://www.legco.gov.hk/yr12-13/english/counmtg/motion/m_papers/cm1107cb3-73-e.pdf

[6] HKSAR LegCo, Motion on “Transgender marriage”, PDF: https://www.legco.gov.hk/yr13-14/english/counmtg/motion/m_papers/cm1030cb3-62-e.pdf

[7] HKSAR LegCo, Bills Committee on Domestic Violence (Amendment) Bill 2007, webpage: https://www.legco.gov.hk/yr06-07/english/bc/bc61/general/bc61.htm

[8] UN Committee on Elimination f Discrimination against Women, “Concluding comments of  the Committee on the Elimination of Discrimination against Women, China”, 7-25 August 2006, PDF: https://www.un.org/womenwatch/daw/cedaw/cedaw36/cc/CHINA_advance%20unedited.pdf 

[9]  HKSAR LegCo, “Official Records of Proceedings: Wednesday, 18 June 2008, The Council Continued to meet at Nine o’clock”, Hong Kong Hansard, p. 8833, PDF: https://www.legco.gov.hk/yr07-08/english/counmtg/hansard/cm0618-translate-e.pdf