By Elizabeth Seymour-Jones and Davyd Wong

On May 27, as clashes between protesters and police broke out on the streets of Central, another struggle was taking place inside the courtrooms of Admiralty.

Pride Parade 2017. Photo: Kris Cheng/HKFP.

Edgar Hon Lam Ng and his husband were suing the government in respect of discriminatory legislation preventing his husband from being able to inherit their matrimonial home if Mr. Ng dies without a will. In a separate application, Mr. Ng is also seeking that the court strike down as unlawfully discriminatory the Housing Authority’s policy preventing same-sex married partners from living together in public estates

According to the challenged policy, they are not considered a “family” as they are a same-sex couple.

This case is another small step along the long and winding road towards equality for sexual minorities in Hong Kong. While the movement has picked up speed in recent years, challenge by judicial review to discrete areas of discriminatory law and policy by affected individuals is proving to be a long and slow path, not to mention impractical.

The path already trodden

Consensual same-sex relations were finally decriminalised in Hong Kong in 1991. However, after this there remained an unequal age of consent for heterosexual sex (at 16) and sex between gay men (at 21).

This was eventually overturned in 2006 when the Court of Appeal in judicial review proceedings found the difference discriminatory and unconstitutional, violating the right to equality under the Bill of Rights Ordinance. The decision was not reflected in a change to the legislation until 2014, 8 years later.

File photo: Holmes Chan/HKFP.

The six years that have since passed have seen a flurry of strategic litigation launched challenging decisions and policies discriminating against same-sex couples in Hong Kong.

First was the successful challenge to the Immigration Department’s policy not to extend dependent visas to a same-sex civil partner (the QT Case). Soon after, a Hong Kong immigration officer took to court the Secretary for the Civil Service and Commissioner of Inland Revenue after he was denied the right both to access civil service benefits for and to file a joint tax return with his husband.

Both of these cases were appealed to the Court of Final Appeal and were ultimately successful.

More recently, the denial of the right to marry to same-sex couples has been directly challenged. This was unsuccessful at first instance in a judgment handed down in October 2019.

More recently, in March this year the High Court ruled that the Housing Authority’s exclusion of same-sex couples from eligibility for public housing as “Ordinary Families” is unlawful and unconstitutional. A Notice of Appeal against the decision, has however, been filed.

Photo: Tom Grundy/HKFP.

While this recent progress in the courts has been positive, the scope of impact of each case is largely limited to the specific policy challenged. Mr Ng was forced to file his own case despite the recent win against the Housing Authority as it challenges a different discriminatory policy.

The limits of the judicial road

Hong Kong is not alone in looking to the judicial branch to enforce the legal rights of sexual minorities. It is a road that has flourished in other jurisdictions including the US, the UK, Australia and Taiwan.

But Mr. Ng’s case also makes clear the problems with walking only this path to equality. If we look at the sheer volume of legislation and administrative policies in force in Hong Kong that treat same-sex relationships differently we quickly see the practical limit to pursuing judicial remedies for a widespread political problem.

Allen & Overy recently conducted an analysis for the Equal Opportunities Commission of how different types of domestic relationships are treated under Hong Kong law and policy. While heterosexual marriage was uniformly recognised, same-sex marriage was not at all, except in the sole case of dependant visas (as a direct result of the QT Case).

Moreover, there is widely differing treatment of domestic co-habitation relationships. Some policies recognise same-sex domestic relationships but only for limited purposes (such as the “fair dealing” rules, or domestic violence) and not for others (such as access to a partner’s pension).

The report concluded that there were 21 broad categories in which opposite-sex and same-sex couples are treated differently, involving many hundreds of pieces of legislation and administrative policies in force. Clearly piecemeal strategic litigation is not a realistic solution to achieving parity in treatment for non-heterosexual couples.  

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On an individual level, litigation additionally comes at great financial and emotional cost. And the stigma that still surrounds non-heterosexual relationships in Hong Kong remains.

It is not surprising then that many potential plaintiffs prefer to avoid the attention litigation brings, particularly with no guarantee of success and the potential for legal costs orders being made against them if the case does not succeed.

While our common law system gives the courts a place to ensure rights and liberties of individuals are protected from unlawful interference and discrimination by the government, not every judge will hold the same views on which of our civil rights require judicial intervention and which do not.

This highlights the inherent tension between the two branches of government as to which is best placed to debate and decide these important issues of public policy. As we wait for comprehensive reform of discriminatory laws by the legislature, the costly and lengthy use of ad hoc strategic litigation to promote change for equality must continue.  

The preferable course is for the government to conduct a comprehensive review and take decisive legislative action, as our courts themselves have recognised in their judgments.

As we wait for such reform, the need to continue along the difficult and slow judicial road is a reality that even brave individuals like Mr. Ng and his lawyers should not, and cannot, avoid.

Elizabeth Seymour-Jones is a Registered Foreign Lawyer at Tanner De Witt. Davyd Wong is General Counsel at Star Anise Group, and Founder of Pro Bono HK. The opinions expressed herein are their own.

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Guest contributors for Hong Kong Free Press.