Evening the Odds in LGBT-related cases

Allison Lam
 
Author Allison Lam is a law student at HKU enrolled in the  LLB programme
 
Right to equality is the main ground of argument for almost all LGBT cases. This right is important because it guarantees that people, LGBTs or not, have equal opportunities at all aspects of life. Still, it is important to stress that not all distinction amounts to unlawful discrimination; differential treatments could be lawful as long as they are justified under the court’s justification test Although there has been growing recognition towards LGBTs’ access to equal rights and benefits, the threshold for granting them has been fluctuating. As Poole [1] remarked, ‘proportionality is plastic and can in principle be applied almost infinitely forceful or infinitely cautiously, producing an area of discretionary judgment that can be massively broad or incredibly narrow – and anything else between’. This essay argues that there has been certain inconsistency in the Court’s application of the justifications test.
 
The justification test is developed to determine whether an alleged discrimination is unlawful or unconstitutional. The 4-step justification test considers (1) whether there is a legitimate aim that justifies the differential treatment (2) whether it is rationally connected with one or more legitimate purpose (3) whether there is any less intrusive measure or whether the current method is no more than necessary to accomplish the legitimate aim (4) whether a fair balance has been struck between the individual right and interests of the community. In short, the court will look at the underlying aim, rationality, necessity and proportionality of the alleged discrimination [2], unlike other rights which the question was whether the infringement of right is justified [3].
 
Secretary for Justice v Yau Yuk Lung [4] concerns the offence of buggery between homosexual men committed otherwise than in private when there was no parallel statutory criminal offence for heterosexual intercourses, but only public indecency at common law. It was highlighted that the threshold should be determined from a reasonable man with sensible and fair-minded perspective. However, a reasonable man with sensible and fair-minded perspective does not necessarily adopts or equals to majority view/consensus. This can be illustrated by contrasting the decision in W v Registrar of Marriages [5] below.
 
In W v Registrar of Marriages, the standard seems to have widen a bit. This case concerns a transexual woman whose right to marry a male partner has been denied by the Marriage Registry because Hong Kong only recognizes marriage between two person who are born opposite sex. The majority view in the Court of Final Appeal put more emphasis of the protection of minority rights, stating that ‘reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights’ (para 116). In light of the changing social, moral and cultural values relating to marriage and the advance of medicine, the Basic Law, as a living instrument ,i.e. adapting to changing needs and circumstances in society, must cater to these needs. Therefore, the absence of societal consensus cannot justify a denial of claim to fundamental rights, and the court held in favour of the applicant. Arguably, the two courts placed different weight to social consensus albeit applying the very same test. Although the court in W acknowledged the importance of social consensus, it argued that courts should serve a larger role for minority representation in contentious constitutional issues as well as an indirect forum for participation by marginalized groups through considering their arguments [5].
 
However, in MK v HKSAR [6], which concerns a judicial review of the refusal of same sex marriage, the court insisted that in controversial issues, by moral of institutional incapacity, deference should be paid to the Legislative Council, which is the law-making body and represents the public. The drafter of the Basic Law would not have intended to protect the right of marriage of same-sex couples since such form of marriage was unknown at the time of enactment. Without strong compelling local reasons, the court should not introduce new policies through the technique of updating interpretation. This is inconsistent with the CFA’s majority ruling in W v Registrar of Marriages. It should be noted that MK is different from W such that it seeks to challenge the very basis of marriage in Hong Kong, while W only seeks to challenge the failure to treat her, a post-operation transexual woman as a woman within the meaning of MO. Still, MK v HKSAR has endorsed the dissenting view in W v Registrar of Marriage of giving effect to historical interpretation i.e. drafter’s intention at the time of enactment, and avoid the preceding case laws.
 
This leads one to consider the varying degrees of the justification test. It also begs the question of how article 37 of the Basic Law (Freedom of Marriage), which is the main article in debate, should be interpreted. Did it intend to give effect to historical understanding, or did the drafter intend the meaning of ‘marriage’ to be updated? It is also arguable whether article 37 was enacted at that time to prohibit homosexual marriage, since as aforementioned, such form of marriage was unknown when the Basic Law was enacted. Still, the ignorance at the time not necessarily intends to prohibit homosexual marriage.
 
Therefore, I argue that the court should maintain a more vigorous justification test to ensure the preservation of fundamental rights and legal certainty, which is an important principle of common law. By doing so, normative expectations can be stabilized, and a more organized framework can be provided for similar cases in the future.
 
[1]  Poole, ‘The Reformation of English Administrative Law (2009) 68 Cambridge Law Journal 142, 146
[2] Loper, 2019, Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong. North Carolina Journal of International Law, 44(2) retrieved from: https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2052&context=ncilj
[3] [1992] 2 HKCLR 207
[4] [2006] HKLRD 196
[5] [2013] 3 HKLRD 90
[4] Puja Kapai, 2011, A principled approach towards Judicial Review, Lessons from W v Registrar of Marriages, Hong Kong Law Journal, 41, 49-75, Retrieved from: https://hub.hku.hk/bitstream/10722/142360/1/content.pdf
[5] [2019] HKCFI 2518