A work in progress - rights enjoyed by same-sex couples in Hong Kong after the QT case

Tseung Siu Long, Wong Man Sum Claudia
 
Authors Claudia Wong and John Tseung are law students at HKU enrolled in the BBA(Law) & LLB and BA(Law) & LLB programmes respectively.
 
The court ruling in QT v Director of Immigration [1] in allowing same-sex spouses to be granted of dependent visa marks a breakthrough in the local LGBT+ movement. After the QT case, judicial review cases involving other rights to be enjoyed by same-sex couples have also been considered by the courts and were met with varying degrees of success. To gain a more thorough understanding on the current status of same-sex couples, it might be helpful to review recent rulings by the court and study the judicial reasoning behind each of these cases. Through comparing their differing outcomes, a clearer picture of local LGBT+ rights can be painted.
 
The QT case adopted an important legal principle which was applied consistently in later cases: the proportionality test. Under the test, any restriction on human rights is analogous to an infringement unless it is justified on the basis of proportionality. In application of the test, the court determines whether a legitimate aim is served by the restriction. There should also be a rational connection between the restriction and its purported aim. The restriction imposed must also be no more than is necessary to achieve such aim, which should arise from a genuine need in society.
 
 
Rights affirmed by the court
 
(1)  Civil benefits
In Leung Chun Kwong v Secretary for Civil Service & Anor [2], the differential treatment of same-sex couples in government policies was challenged. Under the Civil Service Regulations (“the CSR”), civil servants are entitled to dental and medical benefits, a right which also extends to their spouses. Mr Leung, an immigration officer, legally married his same-sex partner in New Zealand. The couple was granted a formal marriage certificate, validating their marital relationship by relevant authorities.
 
Given that same-sex marriages are not recognized in Hong Kong, Mr Leung’s right to update his marital status thus enabling his husband to enjoy spousal benefits under the CSR was denied. The Commissioner of Inland Revenue also rejected his application for a joint tax assessment with his husband on similar grounds. Mr Leung argued that these decisions unlawfully discriminated against him on the ground of his sexual orientation and launched judicial review proceedings to the High Court in 2015. Upon a series of appeals, the Court of Final Appeal unanimously ruled in favour of Mr Leung in 2019.
 
The marriage of Mr Leung demonstrated the same characteristics of publicity and exclusivity as a heterosexual marriage, which set it apart from a “mere relationship” as prescribed in the marital laws of New Zealand which echoed with similar provisions in Hong Kong. In the context of financial spousal benefits, it was decided that a same-sex married couple is relevantly analogous with an opposite-sex married couple. The denial of civil benefits was deemed disproportionate since there is no rational connection between denying these benefits and the government’s aim to protect traditional marriages in Hong Kong.
 
(2)  Inheritance
Ng Hon Lam Edgar v. Secretary for Justice [3] concerns the entitlement to inherit the estate of a same-sex partner. Mr Ng and his same-sex partner H are both permanent residents of Hong Kong. Having married in London in 2017, Mr Ng purchased a flat under the Home Ownership Scheme (HOS) in the following year to use as their matrimonial home.
 
Again, given that same-sex marriages are not recognized in Hong Kong, H is unable to become a co-owner of the flat under current HOS policies. Mr Ng then became concerned that should he die not having made a will, the property would not be passed to H as he intended under the Intestates’ Estates Ordinance (IEO) and Inheritance (Provision for Family and Dependants) Ordinance (IPO), where the definition of “valid marriage” only covers heterosexual marriages. Mr Ng hence initiated a judicial review, arguing that the exclusion of same-sex partners to legal entitlements and benefits under IEO and IPO constituted unlawful discrimination.
 
The High Court found there to be differential treatment on prohibited grounds and that it was wrong not to accord relevantly comparable status to same-sex partners. Following the principles laid down in Leung Chun Kwong, the court found no rational connection between the denial of inheritance rights and the upholding of traditional marriage institutions. Thus, the justification for the differential treatment provided by the Secretary for Justice was dismissed. With no justifiable explanation for the differential treatment on prohibited grounds, the court ruled in a favour of Mr Ng where the simple answer “yes” was provided to the central issue of whether there was unlawful discrimination.
 
(3)  Public housing benefit
According to Infinger, Nick v The Hong Kong Housing Authority [4], the Court of First Instance declared the Spousal Policy of the Housing Authority, which excludes same-sex couples married overseas from the eligibility of applying Public Rental Housing as Ordinary Family was unconstitutional for violation of the Basic Law Article 25 and Article 22 of the Hong Kong Bill of Rights [5]. The High Court found that there was a differential treatment based on sexual orientation and such treatment was not justified as it had not passed the proportionality test.
 
 
Rights not affirmed by the court
 
(4)  Same sex marriage
In MK v Government of HKSAR [6] and Sham Tsz Kit v Secretary for Justice [7], the applicants challenged on the basis that it was unconstitutional to deny the right to marry for same-sex couples under Hong Kong law and for the Government in not providing a legal framework for recognition of same-sex relationships.
 
The Court of First Instance in MK interpreted the word “marriage” under Basic Law Article 37 as referring only heterosexual marriage. The Court looked at the history of the Basic Law to see whether it is the drafter’s intention to include same-sex marriage in the word “marriage” under Article 37 and it was found that such intention was not present. The Court had also rejected to adopt an “updated” interpretation of ‘“marriage” as inclusive of homosexual couples as the change in social attitude and circumstances are not that certain and such interpretation may in effect introduce a new social policy, which is beyond the court’s scope and power. The government has no positive legal obligation to provide a legal framework to give same-sex couples the same rights and benefits enjoyed by heterosexual couples.
 
 
Comments
It then leads to a question: Why is the court more inclined to recognise the civil rights of same-sex couples, such as inheritance and housing benefits, but reluctant to affirm their right to marry?
 
The reasoning in MK case may provide good assistance to understand the reasons behind. The Court in MK distinguished itself with the Leung Chung Kwong case [8] as the latter case did not dispute on the constitutional right to marriage and family for same-sex couples. All the three aforementioned cases where the Court affirmed same sex couples’ right were actually determined on the basis that there is no legal recognition of same-sex marriage in Hong Kong. It is to note that the applicants in those cases had already been legally married in other foreign jurisdictions. Therefore, these cases were rather decided on the ground that there was insufficient justification for treating married couples differently based on their sexual orientation. When it comes to the issue of same-sex marriage, the case laws showed that the Court is not prepared to recognize same-sex marriage by interpreting “marriage” as inclusive of homosexual couples, e.g. the court in QT found it to be “too ambitious”.  Although the Court in MK had said to adopt a “strict legal approach” [9], it did not rule out the possibility of such interpretation in the future with the acknowledgement that the freedom to marriage under Article 37 of the Basic Law is “protective” rather than “prohibitive”. The court emphasized that ultimately, it should be decided by the legislature.
 
 
Conclusion
Indeed, the above-mentioned cases such as Leung Chung Kwong, Ng Hon Lam Edgar and Infinger have shown a progress towards recognition of same-sex couples’ rights. However, given that there is no legal recognition of same-sex marriage by the legislature or the Court, the applicants can only file judicial reviews which would involve substantial time and cost if they wanted to enjoy certain rights equally enjoyed by heterosexual couples. Where the government and the legislature currently have no plans to recognize same-sex marriage and their corresponding rights [10], there is still a long journey for same-sex couples in fighting for equality of rights.

[1] [2018] HKCFA 28
[2] [2019] HKCFA 19
[3] [2020] HKCFI 2412 [Note: the case may be subject to further appeal]
[4] [2020] HKCFI 329 [Note: the case may be subject to further appeal]
[5] Article 25 of the Basic Law states that All Hong Kong residents shall be equal before the law”.  Meanwhile, Article 22 of the Hong Kong Bills of Rights states that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
[6] [2019] HKCFI 2518 [Note: the case may be subject to further appeal]
[7] [2020] HKCFI 2411 [Note: the case may be subject to further appeal; the Court stayed the proceedings pending the determination of MK v Government of HKSAR for similar grounds raised; There is an additional ground, i.e. violation of right to equality in the Sham case which is also been rejected.]
[8] Paragraph 55 of MK v Government of HKSAR
[9] Paragraph 57 of MK v Government of HKSAR
[10] The Chief Executive, Carrie Lam said that same-sex marriage was still a very controversial issue in Hong Kong and there is no tendency to implement a same-sex marriage legislation. See The Standard (2019, 21 March). Carrie Lam says gay marriage remains controversial. Retrieved from: https://www.thestandard.com.hk/breaking-news/section/3/124527/Carrie-Lam-says-gay-marriage-remains-controversial