LGBT rights in Hong Kong

Lesbian, gay, bisexual, transgender (LGBT) persons in Hong Kong (a special administrative region of China), may face legal challenges not experienced by non-LGBT residents.

History

After the 1967 decriminalisation of homosexuality in the United Kingdom, there were moves to undertake a similar reform in Hong Kong. Governor Murray MacLehose privately supported gay rights but he and others felt that the local community would not support decriminalisation.
For a bibliographic overview of Hong Kong LGBT history, see Towards Full Citizenship = 向光明.

Legality of same-sex sexual activity

As a British colony, Hong Kong's criminal laws against male homosexual acts were initially a reflection of British law, with a maximum sentence of life imprisonment. During the 1970s and 1980s, there was a public debate about whether or not to reform the law in line with human rights principles. As a result, in 1991 the Legislative Council agreed to decriminalise private, adult, non-commercial, and consensual homosexual relations.

However, an unequal age of consent was established (21 for gay men and 16 for heterosexuals) with the law remaining silent about lesbianism. LGBT rights groups lobbied the Legislative Council to equalise the age of consent law, but were told by conservative lawmakers that the legal inequality was necessary to protect youth and preserve tradition. A lawsuit was initiated to challenge the unequal age of consent in court.Phil CW Chan, "Stonewalling through Schizophrenia: An Anti-Gay Rights Culture in Hong Kong?", ''Sexuality & Culture'', 2008

In 2005, Justice Hartmann found that the unequal age of consent was unconstitutional under the Bill of Rights Ordinance, violating the right to equality. The ruling was upheld by the Court of Appeal, but the provisions were not formally removed from the Crimes Ordinance (Cap. 200) until 2014.

On 30 May 2019, in the ''Yeung Chu Wing v Secretary for Justice'' case, the High Court ruled in favour of Yeung Chu-wing, an LGBT activist who brought the lawsuit against the government in 2017, and struck down four further provisions under the Crimes Ordinance (Cap. 200) imposing higher penalties for offences committed by homosexual men. Three further provisions were remedially interpreted such that they would no longer discriminate against homosexuals. It abolished the crimes of "procuring others to commit homosexual buggery" and "gross indecency with or by a man under 16". He also overturned "gross indecency by a man with a man otherwise than in private" and "procuring gross indecency by a man with a man". The three offences that now apply to both genders are "homosexual buggery with or by a man under 16", "gross indecency by a man with a male mentally incapacitated person", and "permitting a young person to resort to or be on a premises or vessel for intercourse, prostitution, buggery or homosexual acts". This comes after 20 years of activism to change these law, in which the government either refused or delayed, the secretary for justice during the trial, however, conceded to nearly all the changes, and agreed that these laws targeting gay men are incompatible with the Basic Law.

Recognition of same-sex relationships

Same-sex marriage or civil unions are not recognised in Hong Kong.

Nonetheless, in June 2009, the Hong Kong Government extended limited recognition and protection to cohabitating same-sex couples under the Domestic Violence Ordinance.

In 2013, Hong Kong's High Court ruled that a transgender woman can marry her boyfriend and told the government that they had one year to draft a law that allows for post-operation transsexual or transgender individuals to marry. In spring of 2014, it was announced that though the law had not been finished, transgender citizens could start marrying in July. Some rights activists have expressed their discontent with the provision that a person must have undergone complete gender reassignment surgery to receive a marriage license. On 17 July 2014, it was announced that transgender citizens could marry and that the law will be finished after the summer recess. Some have stated that the delay of the final draft was a positive thing since the subsequent law has "lots of holes and ambiguity".

In July 2018, Chief Executive of Hong Kong Carrie Lam said that the Hong Kong government has no plans to amend the law and approve same-sex marriage in near future following a landmark ruling in favour of a same-sex couple's dependant visa application, and said though the government respected the court's ruling, the case was not a challenge to Hong Kong's Marriage Ordinance and concerned only the city's immigration policy. In March 2019, she reiterated her position saying that the government was no closer to legalizing same-sex marriage, saying the issue was still "controversial"، but indicated that a recent court ruling in immigration arrangements for same-sex couples who married abroad "does help" to bring overseas talent to the city.

In May 2019, the Equal Opportunities Commission chairman Ricky Chu Man-kin expressed preference for a step-by-step approach, starting with anti-discrimination initiatives, and said he would not push for a legislative timetable on same-sex marriage from the government, but urged the community to "change tack" in favour of a pragmatic step-by-step approach to break the "eternal stalemate" in the city's fight for LGBT rights. He said "Instead of focusing on abstract and ideological debates that we can never easily come to an agreement on, let’s make small progress in tackling discrimination at the workplace, schools and public facilities".

Spousal visas

A British woman (referred to as QT) sued the Immigration Department after it declined to recognise her UK civil partnership and refused to grant her a dependant visa. In February 2015, a judge agreed that the plaintiff had been discriminated against and moved the case forward to the Hong Kong High Court. The court heard the case on 14 May 2015. After prolonged deliberation, it dismissed the case in March 2016. The woman appealed to the Court of Appeal, which agreed to hear the case on 15 and 16 June 2017. The appeal was led by prominent human rights barrister Dinah Rose QC.

On 25 September 2017, the Court of Appeal reversed the High Court's dismissal and ruled in favour of the woman, finding that her partner (who works in the city) should be granted a spousal visa. While the legal definition of marriage was not challenged in the appeal, chief judge Andrew Cheung wrote that "times have changed and an increasing number of people are no longer prepared to accept the status quo without critical thought". His Lordship added that the immigration department failed to justify the "indirect discrimination on account of sexual orientation that QT suffers" and that "excluding a foreign worker’s lawfully married (albeit same-sex) spouse or civil partner ... to join the worker is, quite obviously, counter-productive to attracting the worker to come to or remain in Hong Kong". The court ordered the woman and the Department of Immigration to work together on an agreement and submit it to the court within 28 days.

The Immigration Department appealed the ruling to the Court of Final Appeal. The court handed down its ruling on 4 July 2018, finding in favour of the plaintiff and mandating immigration authorities to grant same-sex partners spousal visas that were previously only available only to heterosexual couples. The panel of judges, led by Chief Justice Geoffrey Ma Tao-li, held that the "policy f not granting a visais counterproductive and plainly not rationally connected to advancing ny'talent' aim" and rejected the immigration director's argument that civil union partnerships differed from marriage, saying it was based on a "shaky foundation nd..hardly satisfactory". The government stated it respected the court's ruling and would study it in detail. The ruling became effective on 19 September 2018, when the Director of Immigration announced that it will favourably consider an application from a person who has entered into "a same-sex civil partnership, same-sex civil union, same-sex marriage, or opposite-sex civil partnership or opposite-sex civil union outside Hong Kong" for entry for residence as a dependant, if the person meets the normal immigration requirements.

Taxation and spousal benefits

In 2014, Hong Kong immigration officer Angus Leung Chun-kwong married his same-sex partner, Scott Adams, in New Zealand. After the wedding, Leung attempted to update his marital status with the Civil Service Bureau, which states that officers' benefits can extend to their spouses. The Bureau, however, rejected Leung's attempts to extend these benefits to Adams, prompting a legal challenge. On 28 April 2017, the Hong Kong High Court ruled in Leung's favour. In his landmark ruling, Mr Justice Anderson Chow Ka-ming called the Bureau's policy "indirect discrimination" and rejected its claim that it had "to act in line with the prevailing marriage law of Hong Kong" and that extending benefits to Leung's spouse would "undermine the integrity of the institution of marriage". The ruling was supposed to take effect on 1 September 2017 and would have offered the same-sex partners of government employees who married overseas the same benefits as heterosexual couples. In May, however, the Hong Kong Government appealed the ruling. The Court of Appeal began examining the case in December 2017, and ruled against the couple on 1 June 2018. The Court of Appeal ruled that there is "legitimate aim" to protect opposite-sex marriage, arguing that only straight couples should enjoy the "freedom of marriage" and that same-sex couples should have no marital rights whatsoever. The Court also stated that Leung and Adams could not pay taxes as a couple. The couple appealed the decision to the Court of Final Appeal. The appeal was heard on 7 May 2019. On 6 June 2019, the Court of Final Appeal reversed the ruling of the Court of Appeal, holding that both the Civil Service Bureau and the Inland Revenue Department had unlawfully discriminated against the couple. The ruling became effective on 19 September 2018, when the Hong Kong government has amended its rule book to allow same-sex couples to file joint tax returns, a spokeswoman for the Inland Revenue Department confirmed the change, and said same-sex married couples could now submit joint tax assessment through the electronic filing system or in paper form. LGBT activists hailed the change for same-sex married couples but said it should also be extended to those in same-sex civil partnerships.

Legal challenges

In January 2019 the Hong Kong High Court agreed to hear two challenges to the city's refusal to recognise same-sex marriage. The two separate legal challenges were mounted by a 21-year-old University of Hong Kong student, known as TF, and a 31-year-old activist, known as STK, who argued that the inability of same-sex couples to get married violated their right to equality under the city's Bill of Rights and the Basic Law. The judge in the case gave the applications license to be heard by the court, though suspended them to first hear another case involving a 29-year-old lesbian, who is seeking for a civil union partnership system to be implemented in Hong Kong.

Civil Partnership and Same Sex Marriage and British Nationals (Overseas)

Neither same sex marriage nor civil partnerships registered inside or outside Hong Kong are recognised by the Law of Hong Kong. However, many Hong Kong residents are also a British National (Overseas). By virtue of the passage of ''Civil Partnership (Registration Abroad and Certificates) Order 2005'' in the UK, all British nationals, including British Nationals (Overseas), are allowed to register civil partnerships with a limited number of British consulates or embassies abroad. Thus, LGBT Hong Kong couples, where one of the couple hold British national status, enjoy the right to register civil partnerships with British consulates in 22 countries.

Arranging a civil partnership registration with a British consulate generally takes at least a month and must be done in person in the country where the consulate is located. Those whose British National (Overseas) passports have expired or who no longer hold a valid passport need to apply for a renewal before arranging a civil partnership registration with a British consulate.

The British Consulate-General in Hong Kong refrains from providing such a service to British nationals because UK law requires the Hong Kong government's objection to them to be respected. Thus, British nationals are able to apply for a same-sex civil partnership ceremony with British consulates or embassies in the following 22 countries.

Civil partnerships court case

In June 2018, arguing that her right to privacy and equality had been violated, amounting to a breach of the Basic Law and the Hong Kong Bill of Rights Ordinance, a Hong Kong lesbian woman known as "MK" sued the Hong Kong Government for denying her the right to enter into a civil partnership with her female partner. The High Court heard the case in a preliminary brief 30-minute chambers hearing in August 2018. In April 2019, a judge rejected a bid by the Catholic Diocese of Hong Kong and other conservative groups to join litigation and ruled that the court can not arbitrate on social or theological issues and works only on legal considerations, as the counsel for the Catholic Diocese claimed that the outcome of the court case could lead to 'reverse discrimination' and create a chilling effect on the church.

The case was heard on 28 and 29 May 2019. During the hearings, Stewart Wong, a government lawyer, defended the existing law, saying: "Not all differences in treatment are unlawful. You are not supposed to treat unequal cases alike. To recognise an alternative form of same-sex relationships which we say is tantamount to arriageis to undermine the traditional institution of marriage and the family constituted by such a marriage". Arguing that civil union partnerships carry the same legal rights as a marriage, but generally do not include the ceremony and exchanges of wedding vows. That made marriage and civil unions effectively identical "in substance", the government lawyer said, explaining why the government had objected to both for same-sex couples.

In October 2019, the Court of First Instance ruled against MK, upholding the existing marriage law and continuing to deny civil partnerships to same-sex couples. Judge Anderson Chow wrote, "The evidence before the court is not, in my view, sufficiently strong or compelling to demonstrate that the changing or contemporary social needs and circumstances in Hong Kong are such as would require the word ‘marriage’ in Basic Law Article 37 to be read as including a marriage between two persons of the same sex," and that the government had no legal obligation to provide substitute arrangements to same-sex couples, such as civil unions or civil partnerships. He added that "Whether there should, or should not, be a legal framework for the recognition of same-sex relationships is quintessentially a matter for legislation," meaning that the issue was more suited for the Legislative Council of Hong Kong.

Civil unions legislative motion

In November 2018, openly gay legislator Raymond Chan Chi-chuen proposed a motion to study civil unions for same-sex couples, but this was voted down by 27 to 24.

Public housing

On 4 March 2020, the Hong Kong government's policy of denying legally married same-sex couples the right to apply for public housing was declared unlawful and unconstitutional by the High Court.

Discrimination protections

The ''Hong Kong Bill of Rights Ordinance 1991'' ( zh, ; pinyin: ''Xiānggǎng Rénquán Fǎ'àn Tiáolì'') was utilized to struck down discrimination in the age of consent in the case of '' Leung TC William Roy v. Secretary for Justice'' (2005). However this does not protect against governmental discrimination in services and goods.
Since the 1990s LGBT rights groups have lobbied the Legislative Council to enact civil rights laws that include sexual orientation, but without success.

In 1993, former legislator Anna Wu proposed an Equal Opportunities Bill through a private member's bill to outlaw discrimination on a variety of grounds, including sex, disability, age, race, and sexuality. Her effort didn't yield any result until 1995 when equal opportunities law was enacted. However, sexuality was not included in the passage of the bill.

Political opposition tends to come from social conservatives, often with evangelical Christian ties, who view homosexuality and cross-dressing as signs of immorality. For example, after the court ruled against the unequal age of consent, former Chief Executive of Hong Kong Donald Tsang, a devout Catholic, publicly opposed the court's decision and fought for an appeal until 2006. However, most political parties and individual politicians have tended to avoid making public statements in favour of LGBT rights, although this has slowly begun to change.

In 2010, Legislator Fernando Cheung, and former legislators Cyd Ho Sau-lan, Lo Wing-lok, and Reverend Fung Chi Wood, participated in public demonstration against homophobia.

As of 2019, there are no laws against discrimination on the grounds of sexual orientation and gender identity in Hong Kong.

In 2016, efforts by the Equal Opportunities Commission to prompt the government to enact anti-discrimination legislation based on sexual orientation and gender identity failed. The commission made a proposal to the administration following a survey the same year, which found 55.7% of people in Hong Kong backed such protections.

In June 2019, Ricky Chu Man-kin, head of the Equal Opportunities Commission says he intends to add anti-discrimination protections based on sexual orientation and gender identity to existing laws. He said his approach would involve inserting protections into existing laws rather than advocating for one overarching legislation, as in the past. He plans draft laws and fine-tune them after hearing the views of opposing parties before submitting them to the government.

Gender identity and expression

Cross-dressing ''per se'' is not illegal. Hong Kong law allows the change of legal documents such as the identity card, and passport, but does not allow the birth certificate to be changed. Such change requires sex reassignment surgery, which includes the removal of reproductive organs, effectively rendering the person sterile in exchange for legal recognition of gender identity.

On 13 May 2013, the Court of Final Appeal of Hong Kong ruled that a transsexual woman has the right to marry her boyfriend in her affirmed gender.

On 16 September 2013 Eliana Rubashkyn was discriminated against and sexually abused by Hong Kong airport customs officers, forcing international organisations like the United Nations and Hong Kong NGOs to provide assistance as a refugee becoming a stateless person, she endured an invasive body search for more than nine hours.

In 2019, three transgender people who identify as male lost their legal bid to be recognised as such on their Hong Kong identity cards. While expressing sympathy, High Court judge Mr Justice Thomas Au Hing-cheung ruled against the three applicants, Henry Tse, Q and R, who have all been legally recognised as men by the British government but are unable to get their gender changed on Hong Kong ID cards. The judge said that a complete sex change would be the only "workable way" for the local government to determine a person's gender. Although the trio, all born female, identify as men, and have had their breasts removed and undergone hormone therapy, they all still have their uterus and ovaries – which was the point of contention in their legal challenges against the city's commissioner of registration.

LGBT rights movement in Hong Kong

In the early 1990s, the first two LGBT rights groups, '' HORIZONS'' and the ''Ten Percent Club'', were established. Today, several organisations, most notably '' Rainbow Action'' and '' Tongzhi Culture Society'' exist to campaign for LGBT rights and to organise various public educational and social events.

The Constitutional and Mainland Affairs Bureau established The Gender Identity and Sexual Orientation Unit in 2005, to enhance the equal opportunities for people of different sexual orientations, and transgender people.

As of August 2012, The Constitutional and Mainland Affairs Bureau have been sponsoring a series of Public Service Announcement broadcasts through about the need for equal treatment when employing anyone who is LGBT.

Living conditions

Along with several gay nightclubs, LGBT pride festivals occur annually, as well as other social events including the Hong Kong Lesbian & Gay Film Festival. On each International Day Against Homophobia (IDAHO), a procession is held through the street of Hong Kong to show solidarity. The first IDAHO procession was held in 2005. Political involvement has also become more common in recent years. Several prominent legislators have attend the IDAHO procession and gay pride to show solidarity with the LGBT community.

As the government cannot discriminate against LGBT persons, as stipulated in the Bills of Rights, LGBT people may not legally be hindered in their access to services provided by the Hong Kong government. For example, when applying for non-contribution base Job Seeker's Allowance (Comprehensive Social Security Allowance), one must satisfy the means test component. Whether ones satisfy the mean test component, the Social Welfare Department takes into account the income of family members living together irrespective of their sexual orientation.

In May 2019, a Cathay Pacific advertisement featuring a same-sex couple which showed two men strolling hand in hand along a beach was banned by Airport Authority Hong Kong and MTR Corporation. Both overturned their position a day after widespread public criticism and outrage by the ban and it was later displayed days later.

Representation in the media

Since the 1990s, several Hong Kong films have had LGBT characters or themes in them. However, television programming has largely tended to avoid LGBT characters or themes, until recently.

In 2006, Radio Television Hong Kong (RTHK) broadcast a television film called ''Gay Lovers'', which received criticism from social conservatives for "encouraging" people to become gay. In 2007, the Broadcasting Authority ruled that the RTHK-produced programme "Gay Lovers" was "unfair, partial and biased towards homosexuality, and having the effect of promoting the acceptance of homosexual marriage." On 5 May 2008 Justice Michael Hartmann overturned the ruling of the Broadcasting Authority that "Gay Lovers"'s discussion on same sex marriage was deemed to have breached broadcasting guidelines for not including anti-gay views.

As social attitudes have become more open and accepting in Hong Kong, more artists and prominent persons have become open about discussing their sexual orientation publicly.

Chet Lam (), a Hong Kong folk singer, came out to the public through an interview with '' The Advocate'' (UK).

In April 2012, well known artist, Anthony Wong (黃耀明), came out as gay during one of his concert series, with fans giving him a very positive response.

In September 2012, newly elected lawmaker Ray Chan Chi-chuen (), a former radio and TV host, revealed to Oriental Daily that he is gay, making him the first openly gay legislator in Greater China. Local media coverage of his coming out as gay was largely positive.

On 10 Nov 2012, Denise Ho () announced her sexual orientation on stage at the "Dare to Love" event during the Hong Kong Pride Parade 2012. She called herself "tongzhi" () a Chinese slang word for gay. She is the first mainstream female singer in Hong Kong to come out.

Public opinion

In a 2013 poll conducted by the University of Hong Kong, 33.3% of respondents supported same-sex marriage for same-sex couples, with 43% being opposed. Another poll conducted by the Liberal Party showed that 29% supported same-sex marriage while 59% were against it.

A survey conducted by the University of Hong Kong in 2014 showed that 27% supported same-sex marriage while 12% said that they somewhat agreed. At the same time, the same poll found out that 74% of the respondents agreed that same-sex couples should have the same or some rights enjoyed by heterosexual couples.

A 2017 University of Hong Kong poll found that 50.4% of respondents supported same-sex marriage.

Professional opinion

The Hong Kong College of Psychiatrists

On 15 November 2011, the Hong Kong College of Psychiatrists, as a licensing body of professional psychiatrists in Hong Kong, published an announcement stating that homosexuality is not an illness and there is no scientifically proven evidence to support the attempts to change one's sexual orientation. Until February 2012, the announcement has not been uploaded onto the college's website or published in any professional journals; it is, however, available in electronic pdf format upon request. The Hong Kong College of Psychiatrists is the very first professional authority in Asia that explicitly and publicly opined their professional standing on issues regarding homosexuality and treatments altering one's sexual orientation.

The Hong Kong Psychological Society

In light of the absence of practice guidelines for lesbians, gays, and bisexual individuals for psychologists in Hong Kong, the Hong Kong Psychological Society, as both a learned society and a professional association, formed a work group in July 2011 to tackle the problem. On 1 August 2012, the Society published a position paper titled, ''Position Paper for Psychologists Working with Lesbians, Gays, and Bisexual (LGB) Individuals''. There are 11 major guidelines in this position paper:

Hong Kong Association of Doctors in Clinical Psychology (HKADCP)

HKADCP's Code of Ethics ensures the HKADCP Registered Clinical Psychologists avoid discrimination in all forms and are sensitive to power differentials in dealing with current and former clients, employers, employees, and peers by striving to protect individuals who may be in a position of lower power. They are particularly sensitive to the needs of underprivileged and otherwise vulnerable individuals.

Civil Service vacancies

The Government, at all levels, is not allowed to have any unjustified differential treatments on ground of sexual orientation as a direct result of a series of high-profile court cases. Particularly, in '' Secretary for Justice v Yau Yuk Lung Zigo'', the Court of Final Appeal ruled that one's sexual orientation is a protected status against discrimination under the provisions of Articles 25 and 39 of the Basic Law and Articles 1 and 22 of the ''Bill of Rights Ordinance''. Because of this interpretation from the judiciary, the Government has the responsibility to ''actively'' ensure all its policies, decisions, and actions are free of sexual orientation discrimination. The Basic Law and the ''Bill of Rights Ordinance'' only bind the Government, its agencies, and its representatives, but not private companies. As such, the general notes section of civil service vacancies advertisements include the assertion: "As an Equal Opportunities Employer, the Government is committed to eliminating discrimination in employment. The vacancy advertised is open to all applicants meeting the basic entry requirement irrespective of their disability, sex, marital status, pregnancy, age, family status, sexual orientation and race." In addition, current government employees who feel discriminated against or suffer from unfair treatment because of their sexual orientation may seek legal advice and may file civil actions against the Government in court.

Business sector

Since homosexuality is still a sensitive issue in Hong Kong, discrimination based on sexual orientation in the corporate sector is not unknown. LGBT employees are often victims of various levels of discrimination or harassment. Most companies do not include sexual orientation in their diversity and inclusion policies. And, with no legislation protecting LGBT employees, the situation remains unresolved. This is also true for multinational corporations. Although many US- or Europe-based companies in Hong Kong may have non-discrimination policies protecting their LGBT employees in their home countries, most do not adopt such practices in Hong Kong. Such a phenomenon makes many local employees and even expatriates vulnerable to discrimination.

For many years, leading advocate groups such as Community Business, have worked to promote and advance the extension of non-discrimination policies in the corporate sector for LGBT minorities. Only a limited number of multinational companies have explicitly embraced such policies, namely Goldman Sachs and IBM. Only a handful of local and China-based companies have extended non-discrimination protection to LGBT employees, including blue-chip stock companies.

Summary table

See also

*LGBT rights in Asia
*LGBT rights in China
* LGBT rights in Macau
* LGBT culture in Hong Kong
*Recognition of same-sex unions in China
*Human rights in Hong Kong
* Same-sex union court cases

Notes

References

{{DEFAULTSORT:Lgbt Rights in Hong Kong

Law of Hong Kong