The Court of First Instance has recently ruled in favour of a civil servant who was not allowed to extend certain government benefits to his same-sex partner.
Leung, the applicant, was a senior immigration officer and had married his partner in New Zealand. As a civil servant, Leung was entitled to certain medical and dental benefits provided by the Hong Kong government and these benefits extended to his “family”. Under the relevant civil service regulations, “family” was defined as “the officer’s spouse”.
When he asked if these benefits could be extended to his same-sex partner, he was denied. Relying on the definition of “marriage” under the Marriage Ordinance – the “voluntary union for life of one man and one woman” – the government said Leung’s same-sex marriage fell outside this definition and his partner was therefore not entitled to receive the benefits ordinarily extended to other married partners. Leung filed a petition for judicial review of the government’s decision.
In a potentially landmark ruling, the Court of First Instance ruled in favour of Leung. It agreed that the government’s decision to refuse the extension of benefits to his same-sex partner was based, at least indirectly, on Leung’s sexual orientation, and that this difference in treatment, infringing on Leung’s right to equality, could not be justified.
The court rejected a separate application brought by Leung against the Inland Revenue for failing to assess the couple’s taxes on a joint basis, as they appeared to have suffered no prejudice or loss as a result of being assessed separately.
Progress a mixed bag in Hong Kong
Last month, Taiwan became the first Asian country to recognise same-sex marriage. In contrast, progress on this issue has generally been fragmented and slow-moving in Hong Kong.
Unlike other jurisdictions such as the UK, Hong Kong does not currently have any legislation to protect and recognise the rights of individuals who enter into same-sex relationships. Hong Kong has four anti-discrimination ordinances which together prohibit discrimination on the grounds of gender, pregnancy, marital status, family status, disability and race. But they do not currently extend to the ground of sexual orientation. All Hong Kong citizens do, however, have the right to equality before the law under the Basic Law and the Hong Kong Bill of Rights (this was the basis for Leung’s application and the court’s order).
In 2016, the Equal Opportunities Commission released a report recommending the introduction of legislation to protect lesbian, gay, bisexual and transgender people against discrimination on the grounds of sexual orientation, gender identity and “intersex status”. It recommended that the government consider conducting a public consultation, but so far there has been no action from the government.
In another recent case, QT vs Director of Immigration, a UK national applied for judicial review of the Immigration Department’s decision to refuse her application for a dependent’s visa using her same-sex civil partner’s employment visa. However, in this case the Court of First Instance took a different approach to the Leung case above. It dismissed the application, saying that the Director of Immigration was given wide discretion to “draw a bright line” between married and non-married couples for the purposes of controlling immigration.
The decision has been appealed and just last week the Court of Appeal rejected an application by 12 financial institutions to file submissions in support of the appeal, citing the importance of this decision on Hong Kong’s competitiveness and ability to attract the best talent from an increasingly competitive international employment pool.
Legislative change in Hong Kong is probably some way off. However, both the Leung and QT cases have been appealed and the outcome of both may have potentially wide-ranging implications for the development of the law in this area.
Many employers currently choose to extend protections to same-sex couples on a discretionary basis in order to apply global standards. Those who do not may want to consider revisiting their benefit programmes and assessing the risk of potential discrimination claims. The reality is that modern employers are increasingly accepting the importance of diversity and inclusion in the workplace, where attracting and retaining top talent lie at the heart of any successful business.
This article appeared in the Classified Post print edition as Lessons from court ruling on same-sex couples.