What anti-discrimination legislation for sexual minorities could look like in HK

Letitia Chan & Jenny Yau

Authors Letitia Chan and Jenny Yau are law students at HKU enrolled in the BSocSc (Govt & Laws) & LLB and JD programmes respectively. 

Although it has been 29 years since the decriminalization of homosexuality in Hong Kong, presently there is still a distinct lack of comprehensive anti-discrimination legislation on the grounds of sexual orientation, gender identity and intersex status in Hong Kong which fails to protect a large part of the community, as rampant discrimination can occur without punishment or oversight. This article aims to examine the different ways in which anti-discrimination legislation are implemented in different jurisdictions and how these approaches might work for Hong Kong’s legal system, while also considering the likelihood of Hong Kong adopting anti LGBTQ+ discrimination legislation in the near future. The Equal Opportunities Commission (EOC)’s report outlines three different approaches for implementing anti-discrimination legislation: the consolidated approach, the domain-specific approach, and the characteristic-specific approach. [1] 

The consolidated approach involves legislation that addresses discrimination in many different areas, with an emphasis on “the broader concept of equality”. [2] The legislation can also be amended to include new protected characteristics. The United Kingdom’s Equality Act of 2010 is an example of this approach – the Act protects characteristics such as sexual orientation, sex, gender reassignment, and others. Before 2010, legislation against discrimination on the grounds of sexual orientation were only covered in the Employment Equality (Sexual Orientation) Regulations, which did not offer as much protection as the succeeding Equality Act. The Equality Act covers both direct and indirect discrimination. In McMahon v Redwood (2019), the Employment Tribunal found for the claimant regarding her complaint that she was directly discriminated against due to her sexual orientation, but her claim of indirect discrimination was dismissed.[3] However, a consolidated approach could be difficult, given that Hong Kong does not have a base legislation like the Employment Equality Regulations to work from. 

The characteristic-specific approach focuses on developing new legislation against discrimination based on separate characteristics. This approach is one that Hong Kong’s four main anti-discrimination Ordinances follow, suggesting its suitability as a format for future legislation. Australia is one of many jurisdictions that utilizes this type of approach – in 2013, their Sex Discrimination Act was amended to cover discrimination on the grounds of sexual orientation in Section 5A, while new protections against gender identity and intersex status were also included. 

The domain-specific approach has been adopted by various Asian jurisdictions such as Taiwan and Macau. This format covers discrimination on the basis of sexual orientation in specific domains like employment. The Taiwanese government passed the Gender Equity Education Act in 2004 and the Act of Gender Equality in Employment in 2007, but there is ambiguity over whether both direct and indirect discrimination are  covered in these legislations. [4] Macau has adopted the Labour Relations Act, which prohibits employers from discriminating against employees on a number of grounds, including sexual orientation, but sexual orientation is not a protected characteristic under Macau’s Basic Law. This highlights a major issue with the domain-specific approach, which neglects protection against LGBTQ+ discrimination in crucial areas. 

Considering the status quo in Hong Kong, the current administrative measures against discrimination are inadequate for the  LGBTQ+ community.  For example, in spite of the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation, there is still unfair treatment of sexual minorities in the workplace.  In a study conducted by Holning Lau and Rebecca Stotzer, 29% of the 792 participants of the online survey, who identified as sexual minorities, stated that they had experienced discrimination based on their sexual orientation. [5]  This shows that there is an acute need for more legal protection for sexual minorities. 

Reviewing the three approaches as aforementioned, the most comprehensive legal protection would undoubtedly be the consolidated approach. Regrettably, with a largely conservative Legislative Council, the more feasible option in Hong Kong appears to be the characteristic-specific approach.  This is because there is less drafting required compared to constructing a new ordinance in the consolidated approach. The new, separate, Discrimination Ordinance would be modeled after the other four existing Anti-Discrimination Ordinances, including that of race, religion, gender and disabilities.  Alternatively, the Sex Discrimination Ordinance can be modified to include gender identity and sexual orientation. A recent judgment handed down from the US Supreme Court, Bostock v Clayton County (2020) held that discrimination on the basis of sexual orientation is also a form of sex discrimination. [6] This judgment supports the idea that amending the Sex Discrimination Ordinance to include new protections is  a highly feasible option.   

In comparing the three approaches, a continuation of the domain-specific approach is least desirable as it is sometimes used to implement only partial protection against LGBTQ+, as seen in Taiwan. This approach was chosen by the Hong Kong government in the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation. This scheme clearly does not offer adequate protection to sexual minorities in Hong Kong as it only covers discrimination against employment, neglecting other areas with the potential for discrimination, such as education and public services. Companies are merely invited and not required to adopt the Code of Practice, which makes it difficult to ensure full protection against LGBTQ+ discrimination. It is therefore reasonable to presume that adopting a similar approach for further legislation will not result in the progressive change that Hong Kong needs. However, given that neighbouring jurisdictions have adopted the domain-approach, it is possible that the Hong Kong government might choose to follow suit in the future. 

In all events, the prohibited conduct outlined in the legislation should be similar regardless of the approach. As stated in EOC-commissioned study, “the main forms of prohibited behavior in other jurisdictions are direct and indirect discrimination, harassment, victimization and, to a more limited extent, vilification”. [7] Such forms of conduct are already illegal under the other existing anti-discrimination ordinances.  Hence, the scope of the provision of any anti-discrimination legislation for sexual minorities should prohibit these actions and Hong Kong must strive towards implementing proper anti-discrimination protection for the LGBTQ+ community.

[1] Equal Opportunities Commission and Gender Research Centre of the HK Institute of Asia-Pacific Studies of CUHK, “Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status”, 14. Retrieved from https://www.eoc.org.hk/eoc/upload/ResearchReport/20161251750293418312.pdf, Accessed on 28 October, 2020 
[2]  Equal Opportunities Commission, “Study on Legislation”, 199. 
[3] McMahon  v.  Redwood TTM Ltd 2019 (ET). 
[4] Equal Opportunities Commission, “Study on Legislation”,149. 
[5] Holning Lau, Rebecca L. Stozer, “Employment Discrimination based on Sexual Orientation: A Hong Kong study”,  Retrieved from https://www.researchgate.net/publication/226504813_Employment_Discrimination_Based_on_Sexual_Orientation_A_Hong_Kong_Study, Accessed on 23 October 2020 
[6] Bostock v Clayton County (2020), 590 U.S. 17-1618, (2020) 
[7] Equal Opportunities Commission, “Study on Legislation”, 195.