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LGBT cases show discrimination law is lacking, leaving companies to be proactive

Published on Saturday, 14 Jul 2018

The Basic Law and the Hong Kong Bill of Rights (which binds the government) in principle provide a constitutionally protected right to all Hong Kong residents to be equal before the law. However, in contrast with a number of other jurisdictions, this broad overarching principle has not led to express legislation in Hong Kong to protect a number of groups within society, including the LGBT community. Hong Kong legislation also does not expressly protect or recognise same-sex marriages. As such, a number of couples have opted to marry in countries which do explicitly recognise them.

This solution, however, still leaves same-sex partners unprotected in a number of key areas in Hong Kong, as demonstrated in the recent Court of Appeal case Leung Chun Kwong v Secretary for Civil Service, Commissioner of Inland Revenue & International Commission of Jurists (CACV 126/2017).

Mr Leung was employed by the government as a senior immigration officer. As a civil servant, Mr Leung and his family (including spouse and children) are entitled under the Civil Services Regulations (CSR) to medical and dental benefits (benefits).

Mr Leung had been married to Mr Adams since 2014. The marriage took place in New Zealand where, unlike Hong Kong, same-sex marriages are legally permissible and recognised. When Mr Leung inquired with the Civil Service Bureau whether he was required to update his marital status, he was told that his marriage to Mr Adams did not constitute a change in marital status because same-sex marriages are not legally recognised in Hong Kong (benefits decision).

When it came time for Mr Leung to file his income tax return for the assessment year 2014/15, he attempted to register Mr Adams as his spouse and opted for joint assessment. The Inland Revenue Commissioner considered that Mr Leung was not entitled to opt for joint assessment as he and Mr Adams were not husband and wife under the legal definition of marriage (tax decision).

Mr Leung filed a judicial review against both the benefits decision and tax decision. At the Court of First Instance (CFI), Mr Leung succeeded in respect of the benefits decision, with the Court holding that the benefits decision constituted unlawful discrimination based on sexual orientation. The CFI did not accept that the difference in treatment of Mr Leung and Mr Adams (as a same-sex married couple not recognised under Hong Kong law) when compared to other civil servants in a heterosexual marriage (i.e. a marriage recognised under Hong Kong law) was justified. The judge went on to say that there is nothing illegal or unlawful about permitting provision of the benefits to homosexual couples married under foreign laws.

This was viewed at the time  as a significant and landmark decision for the LGBT community. In regard to the tax decision, the CFI held, however, that the Inland Revenue Commissioner’s ruling was correct because, for the purposes of inland revenue ordinance, the term “marriage”, as a matter of legal construction, means a heterosexual marriage.

At the Court of Appeal, the court had to consider in part whether or not the differential treatment afforded to Mr Leung in relation to the benefits decision and tax decision required justification and if so, whether it was sufficient justification.

The Court stated that the justification for the differential treatment was to protect the status of “marriage” as defined in the present Hong Kong legislation, highlighting in its decision that according to the current laws of Hong Kong, marriage means heterosexual marriage.

Mr Leung called the decision a “huge step back for equality in Hong Kong”, and indeed the decision was a stark reminder of the lack of express sexual orientation discrimination legislation in Hong Kong, in the absence of which the Court clearly felt that its hands were tied.

 The more recent QT decision evidences a willingness of Hong Kong’s highest court to reach a different view and to take a more proactive approach to finding means of redress and protection, with the Court highlighting that granting a dependent visa would not endanger the institution of marriage.

Notably, a survey by the University of Hong Kong released this month also indicated that more than half of Hong Kong residents now support same-sex marriage, compared with only 38 per cent in 2013. It is clear that societal and judicial views are evolving, and this in turn is likely to lead to increased pressure for the legislation to catch up.

Many other jurisdictions have adopted express legislation to protect against sexual orientation discrimination and in this regard Hong Kong lags behind. Many multinational employers are seeking to address this gap in the law within their own organisations, with many employers for example voluntarily opting to hold themselves to the higher standard of law and protection that applies in other jurisdictions where they have operations.

This impetus from the private sector for broader, more modern discrimination legislation is likely to be an indirect driving force at encouraging change in this area.