Sappho and Her Friends -- LGBTQ Erasure in Law

Ivy Wu Wing Ki

​Ivy Wu Wing Ki is a HKU law student enrolled in the (BSocSc (Govt & Laws) & LLB programme.

One of the most influential ancient Greek poets, Sappho, was once travestied as a promiscuous heterosexual woman who had unusually close relationships with her female "friends". She is now rediscovered and recognised as one of the many historical LGBTQ figures whose sexual orientation or gender identity has been erased by society. [1] 
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LGBTQ erasure refers to the inclination by members of society to remove the discussion of the LGBTQ community or individuals; or to dismiss or downplay their significance. This can be manifested in many ways, from academia [2], the media [3], and both the law and the process of litigation, which begs the question of how far is too far. 

#1: Marriage 

Despite the judicial recognition of civil rights enjoyed by same-sex spouses in recent cases such as QT v Director of Immigration [2018] HKCFA 28, the legislation in Hong Kong has not recognised same-sex marriage with the same status as the same as heterosexual marriage. In the case of  MK v Government of HKSAR [2019] HKCFI 2518, the right to marriage for a same-sex couple was denied, one of the reasons being insufficient evidence to show a change in social attitudes towards the meaning of "marriage". Given its role to interpret but not make the law, the court cannot give meaning to what the wordings of the law cannot bear. Meanwhile, there has not been an ordinance prohibiting discrimination based on sexual orientation or gender identity. Therefore, legislation recognising same-sex marriage would provide a stronger basis for the rights to marriage for LGBTQ couples. 

An underlying factor behind the resistance against reform is the interpretation of "marriage" as heterosexual. In MK v HKSAR, the court reasoned that a marriage requires a man and a woman to be valid, subject to "updates" to this definition of marriage. However, the right to marriage is a fundamental right provided in Article 19 of the Bill of Rights Ordinance (Cap 383), as rightfully recognised by the court. When it decided not to grant same-sex couples the same marriage rights as heterosexual couples, we should not see it as a refusal to expand the rights of homosexual couples. It is irrefutable that everyone should be equal before the law, as enshrined by Article 25 of the Basic Law and Article 22 of the Bill of Rights Ordinance. It is imperative for courts and the legislature to appreciate the fact that the right to marriage should be granted to every person regardless of their sexual orientation, in order to change the status quo.

#2: Sexual violence 

A similar case can be observed in the law of sexual violence. The current definition of rape in Hong Kong is “an unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it” committed by a man, according to Crimes Ordinance (Cap 200), Section 118. Male-on-male rape is prohibited as non-consensual buggery in Crimes Ordinance Section 118A. Although the maximum penalty of both could be life imprisonment, the law did not acknowledge the fact that men could be subject to the same degree of sexual violence and trauma as women [4]. It also did not provide sufficient legal protection against female-on-female assaults. The protection against sexual violence for sexual and gender minorities is generally weaker than those for cisgender women. The inequality would inevitably downplay the rights of LGBTQ persons vis-a-vis straight persons. 

Considering that 13% of lesbian women and 40% of gay men have been raped in their lifetime in the US [5], the legal protection for the LGBTQ community against sexual violence should not be less than that for cisgender women. Changes to the current legislations on sexual violence is significant to the rights and wellbeing of the LGBTQ community. 

#3: Erasure in litigation

Examples of LGBTQ erasure in litigation include the current incrementalist approach to expand LGBTQ rights. It appears that courts are more willing to accept the position in favour of LGBTQ rights only when it does not cause too much of a change to the status quo. For example, same-sex couples married overseas are eligible to apply for public housing (Infinger, Nick v The Hong Kong Housing Authority [2020] HKCFI 329) after the QT decision, but the court is slow to recognise same-sex marriage itself (MK v Government of HKSAR). The court's reluctance to expand LGBTQ rights erased parts of the LGBTQ rights when upholding the right to equality in Hong Kong. 

Language could also show the erasure of LGBTQ from litigation. Studies have identified the absence of reference to bisexuality in LGBT+ related cases in the US, noting the misunderstanding that people are either homosexual or heterosexual [6]. Bisexual erasure omits how sexuality can be fluid, and the belief that a bisexual person is either homosexual or heterosexual could potentially deny them legal recourse needed. The example of bisexual erasure shows that the erasure of LGBTQ from litigation could imply a lack of awareness and understanding of this community, which could result in downplaying the significance of their rights. 

It should be noted that litigations regarding LGBTQ erasure may not always be pursued eventually, perpetuating the problem. In December 2020, Edgar Ng, an applicant for two judicial review proceedings against the government seeking equal rights, took his life. The proceedings (Ng Hon Lam Edgar v Hong Kong Housing Authority [2021] 3 HKLRD 427 and Ng Hon Lam Edgar v Secretary for Justice [2020] HKCFI 2412) are taken over by his widower, Henry Li, and the first one has been ruled in favour of Li. The emotional distress and pressure involved in bringing about litigations against LGBTQ erasure should not be underestimated.

Conclusion

The absence of discussion as well as legal protection of sexual and gender minorities in law and litigation should receive attention. In MK v HKSAR, one of the reasons the court ruled against same-sex marriage is the lack of evidence whether the society supports LGBTQ rights. Nonetheless, one should note that the law has an educational function in society. Recognising LGBTQ rights in law not only undoes the injustice that has haunted the LGBTQ community but also promotes an inclusive and diverse society. LGBTQ rights should not be seen as a trend, the support of which will put one in the “moral high ground”. The rights and freedom of people in the sexual minority are the same as any other person in this society. 

Society has begun to recognise homosexual romantic relationships, like that of Sappho's, as more than friends. For the same reason, the law should recognise the rights of the LGBTQ community. 
 
References

[1] Most, Glenn W. (1995). "Reflecting Sappho". Bulletin of the Institute of Classical Studies. 40: 15–38.

[2] Samantha, Rosenthal G. (2017). "Make Roanoke Queer Again". The Public Historian. 39 (1): 35–60. 

[3] Keegan, Cáel (2016). "History, Disrupted: The Aesthetic Gentrification of Queer and Trans Cinema". Social Alternatives. 35: 50–56. 

[4] Joan M. Cook, PhD, Amy E. Ellis, PhD. (2020). "The Other #MeToo: Male Sexual Abuse Survivors". Psychiatric Times. 37(4). 

[5] Centers for Disease Control. (2010). "The National Intimate Partner and Sexual Violence Survey: An Overview of 2010 Findings on Victimization by Sexual Orientation". 
[6] Marcus, Nancy C. (2015). “Bridging Bisexual Er Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation”. Michigan Journal of Gender & Law. 22: 291-344. 

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