Countering the regional trend of recognising the equal enjoyment of socio-economic and fundamental rights for the LGBT community

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Earl Deng
Denis Chang’s Chambers, Hong Kong
edeng@dcc.law

Samantha Lau
Hong Kong
sammylwy@gmail.com

The LGBT civic movement for equal rights in Hong Kong is entering into its fifth decade. Male homosexuality was eventually decriminalised in Hong Kong by legislative measures only in 1991. The age of consent, which differed between male homosexual conduct and heterosexual sexual conduct was only declared discriminatory and unconstitutional by the Court of Final Appeal in 2007. Through a series of challenges, equality, albeit in piecemeal fashion, has been gathering pace, and it seemed inevitable that the courts in Hong Kong would soon have to consider the thorny question of marriage, which cuts not only across cultural but religious sensitivities in a traditional society like Hong Kong. The opportunity for the Court to grapple with this came in MK v The Government of HKSAR [2019] 5 HKLRD 259.

To understand the treatment of the issue by the Court of First Instance and why it held that the definition of ‘marriage’^[1] in terms of a voluntary union ‘of one man and one woman’ did not engage the right to marry for same-sex unions, and the absence of an alternative framework such as civil union and registered partnership to confer legal recognition to such de facto arrangements was not discriminatory, it is important to not only examine the lens by which the issue was framed before the Court, but also the constitutional framework and the role of the executive in enacting legislation and its influence on the Court.

The Hong Kong Special Administrative Region was established on 1 July 1997 with the Basic Law forming the constitutional basis upon which the Special Administrative Region (SAR) was to be governed. It is designed to be an ‘Executive-led’ system and any legislative reform that impacts on policies and the budget can only be proposed through the Chief Executive of the SAR. In practice, most if not all legislative reforms (including removal of inequality barriers) have to be initiated, driven and approved by the Government before it is tabled to the legislature for discussion.

In the absence of Government initiative, the sole channel for redress is through the judicial process, in which superior Courts have the constitutional role in its supervisory jurisdiction to declare legislation or policy as contrary or compliant with the rights enshrined and constitutionally protected under the Basic Law and Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (HKBOR) (which incorporates and domesticates the International Covenant on Civil and Political Rights (ICCPR)). However, such redress has its limitations. As Mr Justice Chow himself offered in his post-script to MK,

‘there is much to be said for the Government to undertake a comprehensive review on this matter. 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’. [emphasis added]

Over the years, Hong Kong courts have consistently found various provisions that interfered with the private life of the LGBT community discriminatory of their sexual orientation^[2] and or unconstitutional of such rights as engaged. In the landmark decision W v Registrar of Marriages handed down by the Court of Final Appeal in 2013, the highest court in Hong Kong declared that the ability of post-operative transsexuals to marry in their choice of gender did engage the constitutional right to marry.^[3] More recently, in QT v Director of Immigration^[4] and Leung Chun Kwong v SCS & CIR,^[5] the Court of Final Appeal unanimously held, having regard to the constitutional right to equality, that the dependency visa policy of the Director of Immigration must include same-sex couples who have registered marriages or civil unions overseas, and civil servants with such arrangements should equally enjoy employment spousal benefits and tax benefits in Hong Kong.

Particularly in Leung Chun Kwong, the Court of Final Appeal for the first time in history recognised that same-sex union ‘has the same characteristics of publicity and exclusivity’ as a heterosexual marriage and is therefore analogous to opposite-sex marriage. Upon applying the four-step proportionality analysis, the Court held that there was no rational connection between the aim of protecting the institution of marriage in Hong Kong and denying a same-sex spouse financial benefits in the context of employment and taxation. Correctly and consistent with its ruling in W, the Court held that the prevailing socio-moral values of society on marriage is irrelevant to the issue of proportionality. Citing the extrajudicial comments of the Chief Justice of Ireland Murray CJ, the Court made clear its disapproval of using majority consensus as an interpretative tool as it begs important questions of legitimacy and is ‘inimical in principle to fundamental rights’.^[6] However, the Court expressed an important reservation and explicitly held that its decision in Leung Chun Kwong left open the question of whether same-sex couples have a right to marry under Hong Kong law.^[7]

It was against this background that MK commenced judicial review proceedings to challenge the constitutionality of the marriage provisions in relevant legislations and the lack of any legal framework for recognition of same-sex relationships. The key questions before the Judge were: (a) whether the constitutional right to marry was engaged in relation to same-sex unions; (b) was there a positive obligation pursuant to any constitutional right for the Government to provide legal recognition of same-sex unions. Both questions were answered in the negative.^[8]

The Judge observed that at the time when the relevant constitutional instruments were promulgated, neither Hong Kong nor any other countries recognised same-sex marriage. As such, the framers should be assumed to have adopted the same definition of marriage provided in the statutes, ie, heterosexual monogamous marriage.^[9] The Judge then held that there is at present no good reason to give the word ‘marriage’ a different meaning, especially in the absence of strong and compelling evidence that there has been social support in favour of recognising same-sex marriage.^[10] The Judge went on to hold that extending the right to marry to include same-sex marriage would create far-reaching social and legal ramifications and it was not the role of the Court to impose such changes.^[11] For these reasons, the Court opted for a restrictive and originalist interpretation and held that the right to marry only protects heterosexual monogamous marriage. Noting that the constitution should be construed coherently, the Judge then held that general articles, such as the right to privacy, family and home, cannot be construed to give rise to a right to same-sex marriage in view of the maxim of generalia specialibus nonderogant.^[12]

Building on that analysis, the Court further held that the Government had no legal obligation to provide an alternative legal framework to recognise same-sex relationships, such as civil union or civil partnership.^[13] The Judge was of the view that such a framework that confers same-sex couples identical or similar rights and benefits enjoyed by traditional married couples is ‘tantamount to marriage in all but name’ and thus it is ‘wrong in principle’ to require the Government to provide such a framework when the right to marry was not engaged in the first place.^[14] Furthermore, the Judge construed the right to privacy, family and home in the HKBOR as a negative right and distinguished the ICCPR wording from the right to private life under Article 8 of the European Convention of Human Rights (ECHR) which has been held in Strasbourg to include positive obligations.^[15]

The reasoning put forward by the Court that the right to marriage is not engaged under the Basic Law is puzzling and difficult to reconcile with the Court of Final Appeal’s decisions in Leung Chun Kwong and in particular W, which rejected similar arguments. In W, a post-operative transgender woman who was not allowed to marry her biological male partner challenged that decision as a breach of Article 37 of the Basic Law. The Court of Final Appeal rejected the submissions that the right to marriage and to found a family as framed and understood by the drafters could only be engaged by couples who were in a traditional union between a biological man and a biological woman and who was biologically capable of conception. The Court of Final Appeal adopting a purposive approach observed that to hold otherwise would be effectively to deny the Applicant any meaningful right to marry as she had already transitioned both mentally and physically into the opposite gender. Furthermore, the fact that the couple would be biologically sterile was not necessary in modern marriages and procreation is no longer an essential constituent of marriage.^[16]

The Court’s secondary analysis on the absence of a positive obligation to provide an alternative legal framework to recognise same-sex relationship is, in our view, liable to be overturned on appeal. The Judge himself recognised, that the right to marry is not prohibitive.^[17] It protects individuals’ right to enter into the status of opposite-sex marriage but does not have the effect of forbidding individuals from contracting other forms of union or institution.

As held by the Court of Final Appeal in QT, while the status of marriage may in some circumstances be used as a condition for the allocation of rights and privileges, those rights and privileges are not part and parcel of the status itself.^[18] Properly understood, the right to marry protects individuals’ right to enter into the status of marriage^[19] and does not protect married couples’ exclusive access to the rights and privileges associated to the marital status.

As such, the right to marry (a lex specialis), even if construed to mean a right to contract opposite-sex marriage, cannot be reasonably construed as precluding same-sex couples from relying on cognate but distinct rights to establish a right to be recognised in law and to obtain a distinct status that entitles enjoyment of similar rights and benefits to heterosexual married couples. To construe otherwise would run counter to the Court of Final Appeal’s decision in Leung Chun Kwong and highly persuasive authorities from Strasbourg.^[20]

Furthermore, the Judge’s reasoning for characterising the right to privacy solely as a negative right is perplexing. The right to privacy in the HKBOR, which is concomitant to Article 7 of the ICCPR, has been described by the Human Rights Committee in its General Comment No 16 as a right to ‘respect’ of privacy, family and home. It adopts language analogous to that of the ECHR itself. This too is consistent with the holding of Hartmann J (as he then was) in Leung v Secretary for Justice where he held that there is some ‘responsibility on the state to promote’ the right to privacy.^[21] Even contextually, the wording provides that the right must be free from arbitrary interference. This suggests that the Government is not only required to refrain from doing an act, but to positively remove barriers to the enjoyment of such a right.^[22]

As to the final reasoning that the decision in favour of MK would have far-reaching social ramifications, it has now been established that this itself is not a reason to deny the enjoyment of fundamental rights protected by the Constitution. After all, it is the Court’s mandate to enforce and interpret it. While it is accepted that the Court should defer, or should confer a wide margin of discretion to the executive authorities as to how such rights are given effect, where a class of persons is effectively precluded from exercising and enjoying that right, the Court should not and cannot leave the matter to the legislature.

The reality is that the LGBT community in Hong Kong continues to face challenges in persuading a conservative society of the importance of equality. The Government has erstwhile refused to engage positively and proactively with the community. To date, and despite the leadership of companies in the private sector taking initiative and to build in accommodation and policies in relation to sexual minorities, there has been little or no appetite for legislative reform to include protection against discrimination of sexual orientation.

Needless to say, the Government’s approach will undoubtedly lead to more ad hoc lawsuits brought by sexual minorities, case by case and in a piecemeal fashion, resulting in an incoherent state of the law at different times and creating unnecessary complexity for both public and private spheres of life. Notwithstanding our observations on the reasoning in MK above, we fully agree with Mr Justice Chow that it is time for the Government to step up and undertake a comprehensive reform to give sexual minorities the long-overdue protection and recognition they deserve.