The Development
On January 26, 2016, the Equal Opportunities Commission (EOC) released a report recommending the introduction of legislation to protect lesbian, gay, bisexual and transgender (LGBT) people against discrimination on the grounds of sexual orientation, gender identity or “intersex status”. The EOC has called for the government to undertake public consultation as soon as possible to determine the appropriate scope and content of such legislation.
These recommendations follow a study on discrimination against LGBT people in Hong Kong, which revealed increased public support for legislative protection in this area. This was particularly so among survey respondents aged 18 to 24 years, where 91.8 per cent were in support of such legislation.
The Context
At present, Hong Kong has four discrimination ordinances. Together they prohibit discrimination on the grounds of gender, pregnancy, marital status, family status, disability and race (which also includes colour, descent and national or ethnic origin). Sexual harassment is also prohibited, as is harassment on the grounds of race or disability.
Vilification – that is, public acts which incite hatred towards, serious contempt for, or severe ridicule of another person on the grounds of their disability or race – is also prohibited under the Disability Discrimination Ordinance and the Race Discrimination Ordinance respectively.
Many employers in Hong Kong adopt policies which prohibit discrimination in the workplace, with reference to a much broader basis than is outlined by local law. This is often consistent with legislative requirements in the country in which the organisation is headquartered.
These policies often extend well beyond the scope of local discrimination laws and are key to creating a culture in which all employees are respected, valued and enjoy a workplace free of discrimination and harassment. Almost without exception, these policies will prohibit discrimination on the ground of sexual orientation, and possibly gender identity.
The absence of legislative protection in Hong Kong is out of step with the global trend toward increased recognition of LGBT issues.
In Australia, for example, both federal and state legislation provide protection against discrimination on the grounds of sexual orientation and gender identity, and – in some cases – intersex status.
In the United States, 19 of 52 states prohibit discrimination on the grounds of sexual orientation or gender identity. A previous ban on openly lesbian, gay and bisexual people serving in the military was overruled in 2010 on constitutional grounds. In 2015, the US Department of Defense announced that regulations barring transgender persons from military service were also under review.
In the EU, all 28 member states have enacted anti-discrimination laws, which extend to discrimination on the grounds of sexual orientation and gender identity.
Closer to home, discrimination on both of these grounds is prohibited in the fields of employment and education in Taiwan. Meanwhile, Macau prohibits discrimination on the ground of sexual orientation only in the context of employment.
The Next Steps
Discrimination law reform is likely to be an area of focus in 2016.
The EOC’s recommendations are a welcome first step toward eradicating discrimination against members of the LGBT community in Hong Kong. If enacted, this legislation will address some of the gaps in the existing legislative framework and promote equality for all.
We also await the EOC’s recommendations on Hong Kong’s four existing discrimination ordinances, following a public consultation conducted in 2014. In that exercise, the EOC sought submissions on changes to aspects of the current laws.
We can also expect to see more focus on age discrimination. The EOC’s recent study on this topic (released on January 7 this year) shows that this issue remains unaddressed for many members of our local community–particularly for mature workers.
Although the EOC recommendations fell short of introducing legislative measures against age discrimination, it made a number of recommendations on government policy measures to promote awareness of the issue.
This article appeared in the Classified Post print edition as HK’s lacking LGBT laws a likely focus in 2016.
