15 December 2019
Same-sex marriage remains a highly controversial and divisive issue in Hong Kong. Photo: Reuters
Same-sex marriage remains a highly controversial and divisive issue in Hong Kong. Photo: Reuters

The court has become the arena to fight for LGBT rights

After four years of legal proceedings, the Court of Final Appeal on June 6 finally ruled in favor of senior immigration officer Angus Leung over his judicial review lawsuit against the government for discrimination against gay couples.

Leung took the case to the court in 2015 because the Civil Service Bureau had refused to acknowledge his gay marital status and hence denied his British husband, Scott Adams, spousal benefits.

Moreover, the Inland Revenue Department also refused to allow them to submit a joint tax assessment application, hence Leung’s decision to sue the government.

After their legal victory, the couple appeared before the media and took questions, during which they referred to the court decision as “Love Win”.

Although same-sex marriage has been legalized in a lot of countries around the world, and it has become increasingly common in recent years for gay partners in Hong Kong to go to these countries to get married, the issue itself has still remained highly controversial and divisive in Hong Kong.

As there are substantial voices against the legalization of gay marriage on religious, moral and ethical grounds, including among lawmakers from both the pro-democracy and establishment camps, the government would rather not take any initiative on the politically radioactive issue.

In fact even Ricky Chu Man-kin, the incumbent chairman of the Equal Opportunities Commission (EOC), has conceded that chances for Legco to pass same-sex marriage laws are remote.

As far as legislating against sexual orientation discrimination is concerned, the EOC had in 2016 recommended that the administration carry out public consultation on it, but the suggestion fell on deaf ears due to the equally sensitive nature of the issue.

A government figure has admitted that there is a very long way to go before Hong Kong legalizes same-sex marriage, and this view is echoed by many in the local LGBT community as well.

Although LGBT activists are perfectly aware of the harsh reality they are facing, and didn’t directly advocate for the legalization of gay marriage, they are now “taking shortcuts” in promoting sexual orientation equality in the city by filing judicial review applications one after another in order to break down barriers one by one.

For example, in last year alone, local courts received a total of five judicial review applications concerning equal rights for same-sex spouses and the marital status of gay couples.

And at the end of May, court hearings on the first ever legal challenge over same-sex unions already began, and the plaintiff is now awaiting court ruling.

Despite the fact that these legal challenges, which are continuing to arise one after the other, are taking up a lot of resources and manpower, the above-mentioned government figure agreed that it is best to leave decisions on this issue to the court.

By leaving judges to decide on the rights of the “sexual minority”, the government can avoid getting caught in the eye of the political storm, even though every court decision would inevitably draw criticism or disappointment from some in the pro-establishment camp.

However, the idea of letting the court decide on gay rights doesn’t necessarily sit well with everybody.

For instance, the Society For Truth and Light, a conservative pressure group which has remained at the forefront of opposing gay marriage over the years, issued a statement shortly after the Court of Final Appeal ruling had been delivered.

In its statement, the group argued that it should be up to the entire society, rather than the court alone, to decide on the issue of changing the institution of marriage as well as the related rights and benefits, through discussions.

And if necessary, the group said, the administration should handle the issue through legislative procedures.

I believe the Society For Truth and Light does have a point there in its statement.

Yet the question is, as the government is now getting bogged down with extradition law-related matters, and nobody can tell how things will play out eventually, the decision-makers may not have the courage to stir up another controversy in society at this point.

This article appeared in the Hong Kong Economic Journal on June 7

Translation by Alan Lee

[Chinese version 中文版]

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Columnist of Hong Kong Economic Journal.