As a hearing at the Hong Kong Court of Final Appeal over the government’s refusal to grant same-sex couples access to spousal employment benefits gets underway on Tuesday, Man-kei Tam, Director of Amnesty International Hong Kong, commented:
“This is a crucial case in the fight for equality for LGBTI people in Hong Kong. The government must proactively and comprehensively end the discrimination facing same-sex couples instead of being forced to acknowledge their rights in a piecemeal manner through the courts. Even if Hong Kong has yet to legalize same-sex unions, the authorities still have the obligation under international law to protect same-sex couples from discrimination.
“Last year the Court of Final Appeal ruled in the QT case that every distinction in treatment [on the basis of sexual orientation] needed to be justified specifically in order not to constitute discrimination. Blanket distinctions are never acceptable, and
“The Hong Kong government must also thoroughly review all laws, policies and practices and end all discrimination on the grounds of sexual orientation, gender identities and intersex status by swiftly introducing comprehensive and specific legislation. No one should experience discrimination because of who they are or who they love.”
In 2017, senior immigration officer Angus Leung Chun-kwong initiated a judicial review against the Civil Service Bureau because his husband, whom he had married overseas, could not enjoy spousal benefits of civil servants in Hong Kong. The government filed an appeal after Leung partially won the case at the Court of First Instance. The Court of Appeal overturned the judgment in June 2018, largely based on the argument that the “traditional concept of marriage” as understood in Hong Kong warranted special protection. The Court of Final Appeal hears the case on 7 May after Leung appealed the Court of Appeal’s decision. The verdict of the hearing will be handed down at a later date.
On 4 July 2018, the Court of Final Appeal ruled in the QT case that it was discriminatory for the government to deny a dependant visa to a woman in a same-sex civil partnership, despite the fact that same-sex marriages or civil partnerships are not yet recognized in Hong Kong. The court also rejected the premise that a concept of “core rights and obligations unique to marriage” could serve as a wholesale justification for differential treatment. But it left open the question of whether “protection of traditional marriage” was a legitimate aim justifying differential treatment between opposite-sex and same-sex unions.
Under international human rights law and standards, discrimination against people because of their sexual orientation is prohibited, and each instance of differential treatment needs to be demonstrably and specifically justified with objective and particularly serious reasons rationally connected to and necessary for a legitimate aim.
Amnesty International believes that same-sex relationships need to be recognized equally and on the same basis and with the same rights as those of opposite-sex couples.