The Court of Final Appeal has ruled in favour of a gay civil servant applying for spousal benefits for his husband – a major legal victory for Hong Kong’s LGBTQ community.
Angus Leung is an immigration officer who married his husband Scott Adams in New Zealand in 2014. The Civil Service Bureau refused to change Leung’s marital status and grant benefits, such as medical coverage, to his husband, and Leung filed a judicial review in 2015.
The top court on Thursday also approved another application from Leung that he and his husband be jointly assessed for tax purposes.
In a unanimous decision, Chief Justice Geoffrey Ma and four other CFA judges ruled that Hong Kong’s civil service and Inland Revenue Department both failed to justify their policy towards Leung, and by extension other same-sex married couples.
Differential treatment by a government body is lawful as long as it has a “legitimate aim,” the policy is “rationally connected” to that aim and is proportionate.
The judges wrote in a 32-page judgment that the protection of heterosexual marriage was a legitimate aim, but there was no connection between that and the policies of Hong Kong’s civil service and taxation authority.
“How is it said that allowing Mr Adams medical and dental benefits weakens the institution of marriage in Hong Kong? Similarly, how does permitting the appellant to elect for joint assessment of his income tax liability under [tax law] impinge on the institution of marriage in Hong Kong?” The judges wrote.
“It cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation.”
Heterosexual marriage would not be “undermined” by extending employment and tax benefits to same-sex married couples, the judges concluded, adding that extending the policy would pose “no administrative difficulty.”
The government argued that the law should restrict financial benefits to opposite-sex married couples because Hong Kong laws only permit heterosexual marriage. However, on Thursday the judges criticised that reasoning as “circular.”
“It amounts to the application of a self-justifying reasoning process and denies equality to persons of different sexual orientation who are accepted to be in a relevantly analogous position. Ultimately, a line is merely drawn without any further attempt to justify it,” the judgment read.
Despite affirming Hong Kong’s government stance on protecting heterosexual marriage, the top court did not take into account “the prevailing views of the community on marriage” because it said a majority consensus was irrelevant to whether a minority was entitled to fundamental rights.
Overturning Court of Appeal
In a statement, Leung and Adams welcomed the judgement while calling for an end to all discriminatory legislation.
“It is a small step for equality in Hong Kong. It was a long and stressful journey to get the results today,” their statement read. “It is not right for any individual to go through such a process to get equality rights. We urge the government to review and amend all the discriminatory legislation and policies to prevent further legal battles, which are costly, time-consuming and unnecessary.”
In 2017, the Court of First Instance sided with Leung in the spousal benefit application, with judge Anderson Chow writing that allowing benefits to same-sex partners would not constitute indirect legalisation of same-sex marriage.
However, the decision was overturned by the Court of Appeal last June, which said that the Basic Law favours heterosexual marriage and therefore it is not discriminatory for gay people to be excluded from marrying.
Leung then applied to take his case to Hong Kong’s top court and was granted permission last September.
Leung’s appeal comes after the landmark Court of Final Appeal decision last July regarding lesbian expat QT. In a unanimous judgment, the court said that the differential treatment towards QT – namely denying her a spousal visa on the basis of marital status – amounted to unlawful discrimination.
The decision on Thursday was met with jubilation from Hong Kong’s LGBTQ community, with the first openly gay lawmaker Ray Chan quickly sharing the news with the hashtag “love wins.”
Chan added in an extended statement that Leung had achieved a great feat by following through with legal proceedings: “The trial is not only about himself. It makes it possible for all other current and future civil servants to enjoy the rights they should be entitled to,” he said. “As the largest employer in the territory, the Hong Kong Government’s Civil Service Bureau has a moral responsibility to promote equality in employment-related matters.”
Advocacy group Pink Alliance congratulated Leung and Adams on their “hard-fought victory,” saying that the government should do more to protect rights in the wake of the ruling.
“The judgement sends a clear message that discrimination on the basis of sexual orientation will not be tolerated,” Pink Alliance said.
“The government should stop burying its head in the sand and start working immediately with the LGBT community to outlaw discrimination on the basis of sexual orientation and gender identity, as well as to afford fair treatment to LGBT couples who are in committed loving relationships. Let’s say no to prejudice and say yes to inclusion and marriage equality.”
Man-kei Tam, director of Amnesty International Hong Kong, welcomed the ruling but called upon the Hong Kong government to take a more active role in safeguarding LGBTQ rights.
“While today’s judgement is very positive for the protection of LGBTI rights in Hong Kong, it is outrageous that LGBTI people in Hong Kong continue to have to go to court in order to force the authorities to treat their relationships as equal,” Tam said. “It is time the Hong Kong government take the initiative and show leadership.”
Lawmaker Holden Chow from the pro-Beijing DAB Party – who has publicly come out against gay marriage – said that the court’s ruling will “inevitably create sweeping changes in society.” Chow said he personally disagreed with the top court but had no choice but to accept the outcome.
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