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Sexual Orientation, Gender Identity, and Equality in Hong Kong: Rights, Resistance, and Possibilities for Reform

  • Amy BARROW (a1)

Abstract

This article explores the implications of an absence of anti-discrimination legislation on the grounds of sexual orientation and gender identity (SOGI) in Hong Kong. Strategic litigation has played an important role in securing legal protections for the Lesbian, Gay, Bisexual, and Transgender (LGBT) community in the face of resistance from the Hong Kong Special Administrative Region (HKSAR) government, as well as religious and parental concern groups. Despite a growing body of evidence which outlines the self-reported daily discrimination experienced by LGBT individuals, the HKSAR government has resisted calls to adopt anti-discrimination legislation on the grounds of SOGI, focusing instead on self-regulation and education. Grounded in qualitative research interviews examining the feasibility of adopting anti-discrimination legislation on the grounds of SOGI in Hong Kong, this article explores the current legal landscape for LGBT rights, resistance, and possibilities for reform.

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Footnotes

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Dr Amy Barrow, Senior Lecturer, Macquarie Law School, Macquarie University, Sydney, Australia. LLB (Lancaster), LLM Human Rights Law (SOAS, London), PhD (Manchester). I would like to acknowledge and thank my former co-researchers at the Gender Research Centre, Chinese University of Hong Kong, particularly Professor Suen Yiu Tung and Joy L Chia for their respective roles in collating the interview data during the SOGI study which informs this article, as well as the legal experts interviewed for their valuable insight. All interview data has been de-identified. I would like to thank the scholars who attended the Berkeley Comparative and Anti-Discrimination Law Study Group 2018 Conference held at Melbourne Law School and Associate Professor Surabhi Chopra of the Faculty of Law at the Chinese University of Hong Kong for their feedback on an earlier draft of this article. I would also like to thank the anonymous reviewers for their helpful suggestions. All errors remain my own.

Footnotes

References

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1. See Panditaratne, Dinusha, ‘Decriminalizing Same Sex Relations in Asia: Socio-Cultural Factors Impeding Law Reform’ (2016) 31 American University International Law Review 171, 172; Gupta, Alok, This Alien Legacy: The Origins of ‘Sodomy’ Laws in British Colonialism (Human Rights Watch, 2008) <https://www.hrw.org/sites/default/files/reports/lgbt1208_webwcover.pdf> accessed 16 Nov 2019; see also the Hong Kong Law Journal special edition on the regulation of sexuality in post-colonial contexts in Asia: (2006) 46(1) Hong Kong Law Journal.

2. In addition to the term sexual orientation and gender identity (SOGI), I use the term LGBT throughout the article as a widely used umbrella term identifying the Lesbian, Gay, Bisexual, and Transgender community. However, I recognize that not all sexual minorities identify with the term LGBT, and other terms may describe gender fluidity more accurately. For further consideration of sexual orientation, gender identity, and appropriate terminology, see Lau, Holning, ‘Sexual Orientation and Gender Identity Discrimination’ (2018) 2(2) Brill Research Perspectives in Comparative Discrimination Law 1, 45. This article does not engage specifically with case law or policy on intersex status, although this was explored by the ‘Feasibility Study on Legislating against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status.’ For the full report, see YT Suen et al, ‘Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status’ (Hong Kong Equal Opportunities Commission, Jan 2016) (SOGI study).

3. The Court established that the criminalization of private, consensual sex between gay men was a violation of art 8 of the European Convention of Human Rights on respect for private and family life. See Dudgeon v United Kingdom (1982) 4 EHRR 149.

4. Leung TC William Roy v Secretary for Justice [2006] 4 HKLRD 211 (Court of Appeal).

5. W v Registrar of Marriages [2013] HKCFA 39, [2013] 3 HKLRD 90.

6. QT v Director of Immigration [2017] HKCA 489, [2017] 5 HKLRD 166, affirmed in QT v Director of Immigration [2018] HKCFA 28, [2018] HKEC 1792.

7. Leung Chun Kwong v Secretary for Civil Service [2019] HKCFA 19, (2019) 22 HKCFAR 127.

8. Barrow, Amy & Cheng, Sealing, ‘Gender Equality and the Limits of Law in Securing Social Change in Hong Kong’, in Najafizadeh, Mehrangiz & Lindsey, Linda L (eds), Women of Asia: Globalization, Development, and Gender Equity (Routledge 2019) 83, 84.

9. Lau, Holning & Stotzer, Rebecca L, ‘Employment Discrimination Based on Sexual Orientation: A Hong Kong Study’ (2011) 23 Employee Responsibilities and Rights Journal 17; Suen, Yiu Tung, Chan, Randolph Chun Ho & Wong, Eliz Miu Yin, ‘Mental Health of Transgender People in Hong Kong: A Community-Driven, Large-Scale Quantitative Study Documenting Demographics and Correlates of Quality of Life and Suicidality’ (2018) 65 Journal of Homosexuality 1093; Suen, Yiu Tung & Wong, Miu Yin, ‘Male Homosexuality in Hong Kong: A 20-Year Review of Public Attitudes Towards Homosexuality and Experiences of Discrimination Self-Reported by Men’, in Lin, Xiaodong, Haywood, Chris & an Ghaill, Mairtin Mac (eds), East Asian Men: Masculinity, Sexuality and Desire (Palgrave Macmillan 2017).

10. Constitutional and Mainland Affairs Bureau Hong Kong, ‘Code of Practice against Discrimination on the Ground of Sexual Orientation’ (Code of Practice) <https://www.cmab.gov.hk/en/issues/full_code_of_practice.htm> accessed 11 Nov 2019.

11. Further information about the SOGI study and the research methods adopted can also be found in the SOGI study (n 2).

12. SOGI study (n 2) 198.

13. EOC, ‘Discrimination Law Review, Submissions to the Government’ (EOC, Mar 2016) <https://www.eoc.org.hk/eoc/upload/DLR/2016330179502227490.pdf> accessed 22 Jan 2020.

14. Several parental concern groups oppose the adoption of anti-discrimination laws on the grounds of sexual orientation and gender identity. For example, Roger Wong Wai-ming, who is also the father of pro-democracy activist Joshua Wong, is Convener of the Family School Sexual Orientation Discrimination Ordinance Concern Group. See Cannix Yau, ‘Family Concern Groups to Protest after Hong Kong Equalities Chief Claims Consensus on Law to Protect Sexual Minorities’, South China Morning Post (28 Jun 2016), <https://www.scmp.com/news/hong-kong/health-environment/article/1982360/family-concern-groups-protest-after-hong-kongs> accessed 11 Nov 2019.

15. The principle of ‘One Country, Two Systems’ was established by the Sino-British Joint Declaration and formalized in law under the Basic Law, art 12.

16. In 2016, China's legislative body interpreted the Basic Law's provisions on oath-taking to the effect that localist policymakers were disqualified. Legal professionals in Hong Kong were particularly concerned by the ruling and silently marched in protest. See Joyce Ng & Raymond Yeung, ‘Hundreds of Hong Kong lawyers in silent march against Hong Kong oath ruling’, South China Morning Post (8 Nov 2016) <https://www.scmp.com/news/hong-kong/politics/article/2044122/hundreds-hong-kong-lawyers-silent-march-against-beijing-oath> accessed 11 Nov 2019.

17. Bill of Rights Ordinance (c 383) 1991 (BORO), art 22, which mirrors the International Covenant on Civil and Political Rights (ICCPR), art 26.

18. Basic Law, art 25.

19. Secretary for Justice v Yau Yuk Lung Zigo (2007) 10 HKCFAR 335 (Court of Final Appeal) para 11. The Court did not however engage with the question of whether sexual orientation can be recognized as implicit within the grounds of ‘sex’.

20. Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992.

21. Secretary for Justice v Yau Yuk Lung Zigo (n 19) para 1.

22. For accounts of the political and social contexts leading to the abolition of colonial-era sodomy laws, see Petersen, Carole J, ‘Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong’ (1997) 19 Loyola of Los Angeles International and Comparative Law Journal 337; Chan, Phil CW, ‘The Lack of Sexual Orientation Anti-Discrimination Legislation in Hong Kong: Breach of International and Domestic Legal Obligations’ (2005) 9 The International Journal of Human Rights 69; Wong, Day, ‘Hybridization and the Emergence of “Gay” Identities in Hong Kong and in China’ (2011) 24 Visual Anthropology 152; Chia, Joy L & Barrow, Amy, ‘Inching Towards Equality: LGBT Rights and the Limitations of Law in Hong Kong’ (2015–2016) 22 William & Mary Journal of Women and the Law 303; Barrow, Amy & Chia, Joy L, ‘Pride or Prejudice? Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong’ (2016) 46 Hong Kong Law Journal 89.

23. Petersen, Carole J, ‘Stuck on Formalities? A Critique of Hong Kong's Legal Framework for Gender Equality’, in Cheung, Fanny M & Holroyd, Eleanor (eds), Mainstreaming Gender in Hong Kong Society (Chinese University Press 2009) 407.

24. Petersen (n 23) 407–408.

25. Sex Discrimination Ordinance (c 480) 1995 (SDO).

26. Disability Discrimination Ordinance (c 487) 1995 (DDO).

27. Family Status Discrimination Ordinance (c 527) 1997 (FSDO).

28. Petersen, Carole J, ‘The Right to Equality in the Public Sector: An Assessment of Post-Colonial Hong Kong’ (2002) 32 Hong Kong Law Journal 103, 134.

29. Race Discrimination Ordinance (c 602) 2008 (RDO).

30. SDO (n 25) s 63.

31. The Church of Jesus Christ of Latter-Day Saints Hong Kong v Stewart JC Park AKA Jessica Park [2001] HKEC 1456 (Court of First Instance).

32. Basic Law, art 25.

33. Kapai, Puja, ‘The Same Difference: Protecting Same-Sex Couples Under the Domestic Violence Ordinance’ (2009) 4 Asian Journal of Comparative Law 1, 7.

34. Domestic and Cohabitation Relationships Violence Ordinance (c 189) 2009.

35. The extension of the Domestic Violence Ordinance to same-sex cohabitation relationships was only ‘introduced in response to the distinct and unique context of domestic violence.’ See Legislative Council (LEGCO) Panel on Welfare Services, ‘Proposed Amendments to the Domestic Violence Ordinance (Cap 189)’ (LC Paper No CB(2)341/08-09(03), LEGCO, 8 Dec 2018), para 8 <http://www.legco.gov.hk/yr08-09/english/panels/ws/papers/ws1208cb2-341-3-e.pdf> accessed 11 Nov 2019; Joy L Chia & Amy Barrow (n 22) 323–324.

36. Tam, Waikeung, Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong (Cambridge University Press 2013), 1820.

37. Joy L Chia & Amy Barrow (n 22) 305.

38. Albiston, Catherine, ‘The Dark Side of Litigation as a Social Movement Strategy’ (2010–2011) 96 Iowa Law Review Bulletin 61, 63.

39. Petersen, Carole J, ‘Racial Equality and the Law: Creating an Effective Statute and Enforcement Model for Hong Kong’ (2004) 34 Hong Kong Law Journal 459, 477.

40. Albiston (n 38) 63.

41. ibid.

42. Chua, Lynette J, ‘Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore’ (2017) 44 Journal of Law and Society 433.

43. ibid 454.

44. ibid.

45. NeJaime, Douglas, ‘Winning through Losing’ (2010) 96 Iowa Law Review 941, 943.

46. Albiston (n 38) 63.

47. ibid 74.

48. Douglas NeJaime (n 45) 984.

49. Leung TC William Roy v Secretary for Justice (n 4) reduced the age of consent for consensual sex between gay men from 21 to 16 years of age.

50. W v Registrar of Marriages (n 5).

51. Gender Recognition Act 2004.

52. Marriage (Amendment) Bill 2014, para 3.

53. Applicants are not strictly required to have undergone full sex reassignment surgery. Rather, evidence must be provided that applicants have been living in the acquired gender. See Gender Recognition Act 2004 (n 51) s 2(1)(b).

54. William Hallatt & Howard Chan, ‘Rights of LGBT People under Hong Kong Law: QT v Director of Immigration and Beyond’ Hong Kong Lawyer (11 Feb 2017) <http://www.hk-lawyer.org/content/rights-lgbt-people-under-hong-kong-law-qt-v-director-immigration-and-beyond> accessed 29 Jan 2020.

55. Q v Commissioner of Registration; R v Commissioner of Registration; Tse Henry Edward v Commissioner of Registration (heard together) HCAL189/2017 (Court of First Instance).

56. ibid para 10(2).

57. Fok Chun Wa v Hospital Authority [2012] HKCFA 34, (2012) 15 HKCFAR 409, cited in QT v Director of Immigration [2018] (n 6) para 82.

58. QT v Director of Immigration [2018] (n 6) para 106.

59. ibid para 108.

60. Secretary for Justice v Yau Yuk Lung Zigo (n 19) para 21.

61. The United States Court of Appeals for the Second Circuit has recognized LGBT persons to be a quasi-suspect class under the Equal Protection Clause, 14th Amendment to the US Constitution. The basis of review is substantially less stringent than the suspect class of race. See Windsor v United States, No 12-2335 (2d Cir 2012) 34.

62. QT v Director of Immigration [2018] (n 6) para 110(b).

63. QT v Director of Immigration [2017] (n 6).

64. David Tweed & Bruce Einhorn, ‘Law Firms Join Goldman in Fight for Gay Spouse Visas in Hong Kong’ Bloomberg News (12 Apr 2018) <https://www.bloomberg.com/news/articles/2018-04-12/law-firms-join-goldman-in-fight-for-hong-kong-gay-spouse-visas> accessed 11 Nov 2019.

65. Douglas NeJaime (n 45) 985.

66. For example, Goldman Sachs has created a Global Diversity Committee: Goldman Sachs, ‘Email to Goldman Sachs People from David Solomon, John Waldron and Stephen Scherr on Advancing Diversity and Inclusion at Goldman Sachs’ (Goldman Sachs Press Release, 18 Mar 2019) <https://www.goldmansachs.com/media-relations/press-releases/current/announcement-18-march-2019.html> accessed 11 Nov 2019.

67. Joy L Chia, Interview with legal scholar D (Hong Kong, 30 Aug 2014) (on file with author).

68. Suen Yiu Tung, Interview with legal scholar C (London, 10 Jul 2014) (on file with author).

69. Leung Chun Kwong v Secretary for the Civil Service (n 7).

70. ibid para 57.

71. ibid para 67.

72. The Court of Final Appeal has determined that all references in the Inland Revenue Ordinance (c 112) to ‘husband and wife’ shall be read as ‘a married person and his or her spouse’: Leung Chun Kwong v Secretary for Civil Service [2019] HKCFA 34, para 8(3)(b)(i).

73. In 2019, three applications for judicial review came before the High Court, which raised the issue of same-sex civil partnerships and marriage in Hong Kong: MK v Government of HKSAR HCAL 1077/2018; TF v Secretary for Justice HCAL 2648/2018; STK v Secretary for Justice HCAL 2682/2018 (heard together) [2019] HKCFI 55.

74. Vanhala, Lisa, ‘Anti-discrimination policy actors and their use of litigation strategies: the influence of identity politics’ (2009) 16 Journal of European Public Policy 738, 750.

75. Chris Lau & Kimmy Chung, ‘Woman takes unprecedented step to advance LGBT cause in Hong Kong and sues government over civil partnerships ban’, South China Morning Post (24 Aug 2018) <https://www.scmp.com/news/hong-kong/community/article/2161287/woman-takes-unprecedented-step-advance-lgbt-cause-hong-kong> accessed 11 Nov 2019.

76. Chris Lau, ‘Karon Monaghan, lawyer in landmark Hong Kong LGBT case over gay civil servant's benefits, says city activists well placed to fight for equality in the courts’, South China Morning Post (11 May 2019) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3009841/karon-monaghan-lawyer-landmark-hong-kong-lgbt-case> accessed 11 Nov 2019.

77. ibid.

78. Albiston (n 38) 75.

79. Amy Barrow & Suen Yiu Tung, Interview with legal scholar B (Hong Kong, 2 Jul 2014) (on file with author).

80. Cannix Yau, ‘Family concern groups to protest after Hong Kong's equalities chief claims consensus on law to protect sexual minorities’, South China Morning Post (28 Jun 2016) <https://www.scmp.com/news/hong-kong/health-environment/article/1982360/family-concern-groups-protest-after-hong-kongs> accessed 11 Nov 2019.

81. Home Affairs Bureau, ‘Paper for the information of the Legislative Council Panel on Home Affairs, Promotion of equal opportunities on race issues’ (LC Paper No CB(2)1548/01-02(01), LEGCO, 12 Apr 2002), para 7 <https://www.legco.gov.hk/yr01-02/english/panels/ha/papers/ha0410cb2-1548-1e.pdf> accessed 11 Nov 2019.

82. LEGCO Panel on Home Affairs, ‘Survey on Public Attitudes towards Homosexuals’ (LC Paper No CB(2)595/04-05(04), LEGCO, Jan 2005), para 5 <https://www.legco.gov.hk/yr04-05/english/panels/ha/papers/ha0114cb2-595-4e.pdf> accessed 11 Nov 2019.

83. Code of Practice (n 10) para 1.1.

84. ibid para 8.1(a).

85. SDO (n 25) s 64(d).

86. Complainants can only apply for legal assistance after they have first attempted conciliation unsuccessfully. However, the decision about which cases the EOC should proceed with at the courts is often a strategic one due to budgetary constraints, as the EOC receives limited funding. See Lynch, Katherine, ‘Private Conciliation of Discrimination Disputes: Confidentiality, Informalism and Power’ (2014) 22 Willamette Journal of International Law and Dispute Resolution 49, 53. See also Petersen, ‘The Right to Equality in the Public Sector’ (n 28) 109–110.

87. See Petersen, ‘The Right to Equality in the Public Sector’ (n 28); Kapai, Puja, ‘The Hong Kong Equal Opportunities Commission: Calling for a New Avatar’ (2009) 39 Hong Kong Law Journal 339.

88. Victor Ting, ‘While Taiwan has legalised same-sex marriage, Hong Kong is still struggling with workplace discrimination against LGBT staff – is the city ready for change?’, South China Morning Post (1 Jun 2019) <https://www.scmp.com/news/hong-kong/society/article/3012632/while-taiwan-has-legalised-same-sex-marriage-hong-kong-still> accessed 11 Nov 2019.

89. 2014 advertising campaign promoting the Code of Practice against Discrimination on the Grounds of Sexual Orientation in The Standard, a free English language tabloid: ‘Increasing support from the public and private sectors for anti-discrimination on the ground of sexual orientation in the employment field’, The Standard (19 Aug 2014) <http://www.cmab.gov.hk/doc/issues/newspaper_supplement_e.pdf> accessed 11 Nov 2019.

90. SOGI Study (n 2).

91. Altman, Dennis & Symons, Jonathan, Queer Wars: The New Global Polarization over Gay Rights (Polity Press 2016) 154.

92. Christy Choi, ‘Turnout doubles for gay pride march’, South China Morning Post (10 Nov 2013) <http://www.scmp.com/news/hong-kong/article/1351673/turnout-doubles-gay-pride-march> accessed 11 Nov 2019.

93. Constitutional and Mainland Affairs Bureau, ‘Eliminating discrimination on the ground of sexual orientation. Dedicating efforts to promoting equal opportunities in employment’, South China Morning Post (6 Oct 2017) <http://www.cmab.gov.hk/doc/issues/newspaper_supplement_2017_e.pdf> accessed 11 Nov 2019.

94. Constitutional and Mainland Affairs Bureau, ‘Eliminating discrimination on the ground of sexual orientation. Joining hands to build working environment with equal opportunities’, South China Morning Post (18 May 2018) <https://www.cmab.gov.hk/doc/issues/newspaper_supplement_20180518_e.pdf> accessed 11 Nov 2019.

95. Leung Chun Kwong v Secretary for the Civil Service (n 7) para 73.

96. See generally Panditaratne (n 1).

97. Joy L Chia & Amy Barrow (n 22) 306.

98. Pink Dot <http://pinkdot.hk/> accessed 11 Nov 2019.

99. Jayson Albano, ‘Gay Games is Hong Kong's chance to show the city's inclusivity – will it recognise same-sex unions and legislate to protect LGBT rights?’ South China Morning Post (26 Apr 2018) <https://www.scmp.com/lifestyle/article/2143252/gay-games-hong-kongs-chance-show-citys-inclusivity-will-it-recognise-same> accessed 11 Nov 2019.

100. SOGI Study (n 2) para 4.5.1.

101. ibid 67.

102. ibid 90–91.

103. ibid para 4.5.1.

104. ibid 90.

105. ibid.

106. ibid 63.

107. ibid.

108. ibid 65.

109. Matsuda, Mari J, ‘Public Response to Racist Speech: Considering the Victim's Story’ (1989) 87 Michigan Law Review 2320, 2337.

110. Suen, Chan & Wong (n 9) 1109.

111. Peace Chiu, ‘Record 1.37 million people living below poverty line in Hong Kong as government blames rise on ageing population and city's improving economy’, South China Morning Post (19 Nov 2018) <https://www.scmp.com/news/hong-kong/society/article/2174006/record-13-million-people-living-below-poverty-line-hong-kong> accessed 29 Jan 2020.

112. Suen, Chan & Wong (n 9) 1109.

113. Barrow, Amy & Scully-Hill, Anne, ‘Failing to Implement CEDAW in Hong Kong: Why Isn't Anyone Using the Domestic and Cohabitation Relationships Violence Ordinance?’ (2016) 30 International Journal of Law, Policy and the Family 50, 67.

114. ibid.

115. Suen, Chan & Wong (n 9) 1109.

116. Joy L Chia, Interview with legal scholar D (n 67).

117. Lau, Holning, Lau, Charles Q & Loper, Kelley, ‘Public Opinion in Hong Kong about Gays and Lesbians: The Impact of Interpersonal and Imagined Contact’ (2014) 26 International Journal of Public Opinion Research 301.

118. Kelley Loper, Holning Lau & Charles Lau, ‘Public Attitudes Towards Gays and Lesbians and Towards Sexual Orientation Anti-Discrimination Legislation’ (Centre for Comparative and Public Law, Faculty of Law, The University of Hong Kong, 6 Nov 2014) <https://ssrn.com/abstract=2520312> accessed 29 Jan 2020.

119. SOGI study (n 2) para 5.1.5(5).

120. Holning Lau et al, ‘Support in Hong Kong for Same-sex Couples’ Rights Grew Over Four Years (2013–2017) Over Half of People in Hong Kong Now Support Same-Sex Marriage’ (Centre for Comparative and Public Law, Faculty of Law, The University of Hong Kong, Executive Summary, Jul 2018) <http://www.law.hku.hk/ccpl/wp-content/uploads/2018/07/Change%20Over%20Time%20Paper%20English%20(3%20July%20Final%20for%20Distribution).pdf> accessed 29 Jan 2020.

121. Lau (n 2) 28.

122. In Australia, for example, the Sex Discrimination Act 1984 (Australia) (Cth) was amended to include the grounds of sexual orientation, gender identity, and intersex status: Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. In the Netherlands, the Equal Treatment Act 1994 s 1(1) prohibits discrimination on the ground of heterosexual and homosexual orientation or civil status. In the United Kingdom, the Equality Act 2010 lists several protected characteristics, including s 7 on gender reassignment and s 12 on sexual orientation.

123. Suen Yiu Tung, Interview with LGBT rights advocate (London, 9 Jul 2014) (on file with author).

124. Amy Barrow & Suen Yiu Tung, Interview with former High Court judge (Hong Kong, 3 Oct 2014) (on file with author).

125. In its Concluding Comments on the Third Periodic Report of Hong Kong (China) adopted in 2013, the United Nations Human Rights Committee (UNHRC) voiced its concern regarding the lack of anti-discrimination legislation prohibiting discrimination on the ground of sexual orientation in the private sector, and called for Hong Kong to consider enacting legislation prohibiting discrimination on the grounds of sexual orientation and gender identity. See UNHRC, ‘Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11 – 28 March 2013)’ (UNHRC, CCPR/C/CHN-HKG/CO/3, 29 Apr 2013), para 23.

126. Joy L Chia, Interview with legal scholar D (n 67).

127. See the landmark case of Equal Opportunities Commission v Director of Education HCAL 1555/2000, [2001] 2 HKLRD 690, an action brought by the EOC against the Director of Education that challenged the systemic sex discrimination embedded in the secondary school placement allocation system.

128. Gaze, Beth & Hunter, Rosemary, Enforcing Human Rights in Australia: An Evaluation of the New Regime (Themis Press 2010) 244.

129. Ragins, BR & Cornwell, JM, ‘Pink Triangles: Antecedents and Consequences of Perceived Workplace Discrimination Against Gay and Lesbian Employees’ (2001) 86 Journal of Applied Psychology 1244.

130. Carole J Petersen, Janice Fong & Gabrielle Rush, Enforcing Equal Opportunities: Investigation and Conciliation of Discrimination Complaints in Hong Kong (Centre for Comparative and Public Law, Faculty of Law, The University of Hong Kong 2003); Gaze and Hunter (n 128) 244.

131. Barron, Laura G, ‘Promoting the Underlying Principle of Acceptance: The Effectiveness of Sexual Orientation Employment Antidiscrimination Legislation’ (2009) 14 Journal of Workplace Rights 251, 253.

132. ibid 253, 264.

133. Barron, Laura G & Hebl, Michelle, ‘The Force of the Law: The Effects of Sexual Orientation Antidiscrimination Legislation on Interpersonal Discrimination in Employment’ (2013) 19 Psychology, Public Policy, and Law 191, 194.

134. Petersen, Carole J, ‘A Progressive Law with Weak Enforcement? An Empirical Study of Hong Kong's Disability Law’ (2005) 25(4) Disability Studies Quarterly <http://dsq-sds.org/article/view/625/802> accessed 29 Jan 2020.

135. EOC, ‘Statistics on Enquiries, Complaints and Legal Assistance for the Period of 1 January 2019 to 31 October 2019’ (Part D(1): Statistics on Application for Legal Assistance and Legal Actions (cumulative figures since 20 September 1996) – Application for Legal Assistance) <https://www.eoc.org.hk/EOC/GraphicsFolder/InforCenter/Papers/StatisticContent.aspx?ItemID=16363> accessed 22 Jan 2020.

136. ibid Part D(2): Legal Actions taken for Cases granted with Legal Assistance.

137. ibid.

138. EOC, ‘Statistics on Enquiries, Complaints and Legal Assistance for the Period of 1 January 2014 to 31 December 2014’ <https://www.eoc.org.hk/EOC/GraphicsFolder/InforCenter/Papers/StatisticContent.aspx?ItemID=13436> accessed 29 Jan 2020.

139. SOGI study (n 2), 187.

140. Suen Yiu Tung, Interview with LGBT rights advocate (n 123).

141. From 1 Jan 2018 to 31 Dec 2018, the EOC received 1,018 complaints. Only 63 applications for legal assistance were made during the same period. See EOC, ‘Statistics on Enquiries, Complaints and Legal Assistance for the Period of 1 January 2018 to 31 December 2018’ <https://www.eoc.org.hk/EOC/GraphicsFolder/InforCenter/Papers/StatisticContent.aspx?ItemID=15994> accessed 11 Nov 2019.

142. SOGI study (n 2) 140.

143. The Netherlands included protections against discrimination on the ground of sexual orientation in its Equal Treatment Act 1994 (n 122) s 1(1).

144. UK Race Relations Act 1965.

145. UK Equality Act 2006, s 81; see also Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, s 82.

146. UK Equality Act 2010 (n 122).

147. Prior to consolidation, the United Kingdom had the same model of anti-discrimination legislation as Australia. See SOGI study (n 2) para 6.1.2.

148. UK Equality Act 2010 (n 122) s 14.

149. When a person is wrongly perceived to have a certain protected characteristic, this is discrimination by perception. For example, a transvestite (cross-dresser) who experiences discriminatory behaviour because someone mistakenly believes that he/she is undergoing gender reassignment surgery, would be considered as having encountered discrimination by perception: SOGI study (n 2) 137.

150. UK Equality Act 2010 (n 122) s 13.

151. ibid s 149.

152. 性別平等教育法 [Gender Equity Education Act 2004] (Taiwan).

153. 性別工作平等法 [Gender Equality in Employment Act 2002] (Taiwan), art 8. Sexual orientation-based discrimination in employment has been prohibited since 2007.

154. Suen Yiu Tung & Wong Wai Ching, Interview with legal scholar A (Hong Kong, 27 Jun 2014) (on file with author).

155. ibid.

156. The UN Committee on the Elimination of Racial Discrimination (UN CERD) has expressed concern that the scope of the RDO does not extend to activities related to law enforcement. Committee on the Elimination of Racial Discrimination, UN CERD, ‘Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China)’ (UN CERD, CERD/C/CHN/CO/14-17, 30 Aug 2018), para 7.

157. Sex Discrimination Act 1984 (Australia) (Cth), amended by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (n 122), s 5A, s 5B, and s 5C.

158. Toonen v Australia (n 20) para 8.7.

159. As confirmed in the case of The Church of Jesus Christ of Latter-Day Saints Hong Kong Ltd v Stewart JC Park AKA Jessica Park (n 31).

160. Amy Barrow & Suen Yiu Tung, Interview with human rights advocate, formerly a parliamentarian (Hong Kong, 29 Aug 2014) (on file with author).

161. Barron & Hebl (n 133) 194.

162. ibid.

163. SOGI study (n 2) 195.

164. Code of Practice (n 10) s 2.1(a).

165. ibid.

166. Yogyakarta Principles (2006) <https://yogyakartaprinciples.org/> accessed 11 Nov 2019. A further set of principles was developed in 2017, Yogyakarta Principles plus 10 (2017) <http://yogyakartaprinciples.org/principles-en/yp10/> accessed 11 Nov 2019.

167. EOC, ‘Meeting of Legislative Council Panel on Constitutional Affairs, Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status’ (LC Paper No CB(2)822/15-16(05), 15 Feb 2016) <https://www.legco.gov.hk/yr15-16/english/panels/ca/papers/ca20160215cb2-822-5-e.pdf> accessed 11 Nov 2019.

168. Jhaveri, Swati, ‘Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China’ (2018) 13 Asian Journal of Comparative Law 27, 27.

169. Mike Ives, ‘Extradition Protestors in Hong Kong Face Tear Gas and Rubber Bullets’ New York Times (12 Jun 2019) <https://www.nytimes.com/2019/06/12/world/asia/hong-kong-extradition-protest.html> accessed 11 Nov 2019.

170. Alex W Palmer, ‘The Case of Hong Kong's Missing Booksellers’ The New York Times Magazine (3 Apr 2018) <https://www.nytimes.com/2018/04/03/magazine/the-case-of-hong-kongs-missing-booksellers.html> accessed 11 Nov 2019.

171. Agence France-Presse, ‘Hong Kong Leader blames ‘foreign forces’ for pro-democracy protests’ The Australian (20 Oct 2014) <https://www.theaustralian.com.au/news/world/hong-kong-leader-blames-foreign-forces-for-prodemocracy-protests/news-story/dced2a6e3423da467d3177007f0637a6> accessed 25 Feb 2019.

172. Alvin Lum, ‘Pro-Beijing lawmakers voice concern over foreign judges’ support for gay rights’, South China Morning Post (28 Apr 2018) <https://www.scmp.com/news/hong-kong/politics/article/2143767/pro-beijing-lawmakers-speak-out-against-two-female-foreign> accessed 11 Nov 2019.

173. Suen Yiu Tung, Interview with legal scholar C (n 68).

174. Leung TC William Roy v Secretary for Justice (n 4) para 53.

175. In the early years of Hong Kong's transition, scholars speculated that in the longer term, minority groups in Hong Kong including the LGBT community may be persecuted, similar to LGBT individuals in China, particularly if they allied themselves with pro-democracy legislators. Petersen, ‘Values in Transition’ (n 22) 362.

176. Kong, Travis SK, Lau, Sky HL & Li, Eva CY, ‘The Fourth Wave? A Critical Reflection on the Tongzhi Movement in Hong Kong’, in McLelland, Mark & Mackie, Vera (eds), Routledge Handbook of Sexuality Studies in East Asia (Routledge 2015) 199.

177. Big Love Alliance <http://biglovealliance.org/> accessed 11 Nov 2019.

178. Arthur Tam, ‘Denise Ho and Anthony Wong talk democracy, mainland backlash and LGBT rights’ (TimeOut, 7 Jan 2015) <https://www.timeout.com/hong-kong/music/denise-ho-and-anthony-wong-talk-democracy-mainland-backlash-and-lgbt-rights> accessed 29 Jan 2020.

179. Altman and Symons (n 91) 147.

180. In the early nineties, rural women in Hong Kong's New Territories’ indigenous villages challenged Chinese customary laws preventing them from inheriting land. See Merry, Sally Engle & Stern, Rachel E, ‘The Female Inheritance Movement in Hong Kong: Theorizing the Local/Global Interface’ (2005) 46 Current Anthropology 387.

181. Lam, Wai-man & Tong, Irene LK, ‘Political Change and the Women's Movement in Hong Kong and Macau’ (2006) 12(1) Asian Journal of Women's Studies 7, 28.

182. Altman and Symons (n 91) 147.

183. Fanny WY Fung, ‘Gay pride parade and Occupy movements promote equal rights in society’, South China Morning Post (8 Nov 2014) <https://www.scmp.com/news/hong-kong/article/1635132/gay-pride-parade-and-occupy-movement-promote-equal-rights-society> accessed 11 Nov 2019.

184. Amy Barrow & Anne Scully-Hill (n 113) 58–60.

185. Jeremiah J Garretson, ‘Exposure to the Lives of Lesbians and Gays and the Origin of Young People's Greater Support for Gay Rights’ (2015) 27 International Journal of Public Opinion Research 277, 277.

186. Arthur Tam (n 178).

187. SOGI study (n 2) 203.

188. Amy Barrow & Suen Yiu Tung, Interview with human rights advocate (n 160).

189. Amy Barrow & Joy L Chia (n 22) 101.

190. Johnny Tam, ‘Christians in Prayer Rally to Fight Gay Law Proposal’, South China Morning Post (14 Jan 2013) <https://www.scmp.com/news/hong-kong/article/1127407/christians-prayer-rally-fight-gay-law-proposal> accessed 11 Nov 2019.

191. Basic Law, art 32.

192. Amy Barrow & Joy L Chia (n 22) 97.

193. Sex Discrimination Act 1984 (Australia) (Cth) (n 122) s 38(3) states: ‘Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person's sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

194. Basic Law, art 141(3) (emphasis added).

195. Catholic Diocese v Secretary for Justice [2011] 14 HKCFAR 754 (Court of Final Appeal) para 78.

196. ibid para 79.

197. Amy Barrow & Suen Yiu Tung, Interview with former High Court judge (n 124).

198. ibid.

199. See n 73 above. On 18 Oct 2019, the Court of First Instance dismissed MK's application for judicial review. The court was unable to find that the government had a positive legal obligation to provide an alternative legal framework recognizing same-sex relationships such as civil partnerships. However, the court did suggest that a comprehensive review on the matter should be undertaken by the government as ‘The failure to do so will inevitably lead to specific legislations, or policies or decisions of the Government or other public bodies, being challenged in the court on the ground of discrimination (and possibly other grounds) on an ad-hoc basis, resulting in an incoherent state of the law at different times as well as much time and costs being incurred or wasted in the process’: MK v Government of HKSAR [2019] HKCFI 2518, para 57.

200. Lisa Vanhala (n 74) 748.

* Dr Amy Barrow, Senior Lecturer, Macquarie Law School, Macquarie University, Sydney, Australia. LLB (Lancaster), LLM Human Rights Law (SOAS, London), PhD (Manchester). I would like to acknowledge and thank my former co-researchers at the Gender Research Centre, Chinese University of Hong Kong, particularly Professor Suen Yiu Tung and Joy L Chia for their respective roles in collating the interview data during the SOGI study which informs this article, as well as the legal experts interviewed for their valuable insight. All interview data has been de-identified. I would like to thank the scholars who attended the Berkeley Comparative and Anti-Discrimination Law Study Group 2018 Conference held at Melbourne Law School and Associate Professor Surabhi Chopra of the Faculty of Law at the Chinese University of Hong Kong for their feedback on an earlier draft of this article. I would also like to thank the anonymous reviewers for their helpful suggestions. All errors remain my own.

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