Hong Kong News Hub: Instead of fighting LGBTQ rights in court, Hong Kong’s gov’t has a chance to lead change

Another day, another court ruling striking down a Hong Kong government practice of discriminating against gay people. This time an appeals court unanimously upheld a lower court decision that authorities must recognise the right of same-sex couples legally married overseas to inherit property, in this case a Home Ownership Scheme flat.

Henry Li and Edgar Ng gay couple gay marriage LGBT. — Henry Li and Edgar Ng’s wedding in 2017. Photo: Supplied.

The ruling comes on the heels of a September 5 Court of Final Appeal decision that by 2025 the government must establish a framework to recognise same-sex unions. And still our government fights on.

Gay people in Hong Kong are citizens, too. By the most conservative estimate there must be at least 400,000 gay people here who the government treats as second-class citizens. This same government has assigned the Constitutional and Mainland Affairs Bureau (CMAB) to be the custodian of a code of practice against discrimination in employment on the grounds of sexual orientation.

Hundreds of businesses and NGOs, large and small, have signed up to the code. Yet the government itself has not. Nor has the Hong Kong Jockey Club nor the city’s largest pro-Beijing party the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB), nor any religious body, each of which employs hundreds of Hongkongers and apparently believes that discrimination in employment based on sexual orientation is quite okay.

Do they value their employees? Apparently not, at least not all of them. To their credit the Hong Kong Academy of Medicine and the Democratic Party have signed up, and a handful of Legislative Council (LegCo) members and district councillors, too.

Calls for an anti-sexual orientation discrimination law at a Hong Kong protest. File photo: Rainbow Action.

Surprisingly, because it only apparently cares about some forms of discrimination already in the law, the Equal Opportunities Commission has signed too. Perhaps it should be renamed, the Equal Opportunities for Some Commission to properly reflect its role.

lgbt gay Pride Parade 2019. — File photo: Supplied.

The Hong Kong government’s policy on recognising same-sex marriages is evidence of a kind of chronic, collective disassociation. On the one hand, the Civil Service Bureau (for civil service benefits for married couples), the Immigration Department (for dependent visas, but not to register an overseas same-sex marriage), the Inland Revenue Department (for salaries tax benefits for married couples) and the Census and Statistics Department (for the 2021 census) recognised some overseas same-sex marriages. On the other hand, I understand that the rest of the Hong Kong government does not.

The Census and Statistics Department is an interesting case. Apparently, its leadership believed that an accurate census was more important than political correctness. In the 2011 census, for example, census enumerators did not allow gay couples to report that they were married if they were. They were “friends,” the census taker recorded.

In the 2021 census, then online, the department permitted gay couples to report accurately their situation. So even within the government, and within different sections of the same department, different policies exist. How is this possible? What a mess!

LGBT gay rights rainbow flag — Hong Kong Pride Parade 2016. File photo: GovHK.

At great expense and court system time, activists have fought for recognition of same-sex marriages, cases that have involved various Hong Kong government departments. Will the government now use our resources (gay people are taxpayers, too) to appeal the inheritance case, even though the government has lost in two lower courts? Probably so, judging from its determination to deny equality to gay people.

In the September 5 Court of Final Appeal decision, some justices perceived that formally recognising same-sex unions was a job for the government (and presumably LegCo). Yet the government fights on, head in the sand, determined to discriminate, uninterested in the hardship it causes thousands of citizens. Why?

In the inheritance case, the government argued that treating same-sex couples “differently” was designed to serve “the integrity of traditional marriage, the encouragement of opposite sex marriage and the coherence of the city’s legislation.” The notion of a union between one man and one woman as traditional marriage in Hong Kong has long been discredited.

Further, how will not recognising same-sex unions “encourage” opposite-sex marriage? Does the government propose that gay people enter into sham marriages to secure the rights that everyone else enjoys? This is outrageous advice. As we’ve seen, government policy lost coherence on this issue long ago. The judges would have none of these arguments.

holden chow — Holden Chow at a protest against same-sex marriage. File Photo: Holden Chow, via Facebook.

Insiders report that the government (presumably with the CMAB taking the lead) would only consider an anti-discrimination law protecting Hong Kong’s gay citizens in two circumstances.

First, the DAB would have to change its stance on the issue. A tiny number of senior DAB members (lawyers!) speak out against equality for gay citizens at every opportunity. They repeat the long-discredited argument that the 1971 marriage law which defines marriage as between one man and one woman is traditional. Tradition should be respected, they say.

But it’s an invented tradition. The law enacted in 1971, hardly qualifies as “tradition.” We know that all sorts of marriage arrangements have existed and been officially tolerated for a very long time in Hong Kong, even among very prominent elites here. What tradition?

The DAB relies in part on public housing estates and the elderly for support. They are conservative, the DAB may calculate, so we cannot get too far ahead of our base. But both groups also include gay citizens, who the DAB is happy to ignore. Now in our post-2021 political system, with restricted public participation, the DAB should care less about taking what they perceive to be a populist position.

gay games protest — Representatives from local groups protesting against Hong Kong’s hosting of the Gay Games on June 21, 2023. Photo: Kyle Lam/HKFP.

Besides, polls show that a clear majority of citizens in Hong Kong support same-sex marriage. Yet the DAB stubbornly takes its lead from the 17 per cent who do not. A case of “the tail wagging the dog.”

So, to the leaders of the DAB, I say: lead already. Leadership means bringing followers with you. If the DAB cares about public support, then know that the hundreds of thousands of gay people in Hong Kong are voters too.

Second, insiders tell us that the government would only change the policy of discrimination against gay people if an important constituency such as the business community presses it to act. Look at the companies that have signed up to the code of practice. Companies both large and small, foreign and local, are among this group. HSBC and the Bank of Construction have signed up. But the Bank of China (HK) has not.

Yet, I understand that the Bank of China recognises overseas same-sex marriage certificates for the purposes of life insurance claims of same-sex couples. Times are changing. Perhaps the government would consider getting out ahead of the change for once? Is this asking too much?

Gay Games Hong Kong basketball team. File photo: Gay Games Hong Kong.

The Hong Kong government is trying to attract overseas talent. Did the government know that many talented professionals are also gay and married and care about these issues? Must we wait for the CEOs of the Fortune 500 to petition the CMAB demanding action before our leaders, well, lead?

The Gay Games are coming to Hong Kong from Friday. They are for everyone, not just gay people. The government “noted” this but provided little support and in doing so, missed another opportunity to lead. It could now decide that wasting more time, energy, and our tax dollars with court cases it is losing is not the way to go.

The government should put a bill outlawing discrimination based on sexual orientation to LegCo without delay. The government should also sign up to its own code of practice against discrimination in employment on the grounds of sexual orientation.

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