The struggle for LGBTQ rights remains an embryonic fight in Asia, waiting to be further developed through advocacy and legal change, amidst vocal opponents demanding the preservation of conservative values and traditions. However, the courts of Taiwan and Hong Kong have shown that greater recognition can be achieved, and former laws interpreted beyond their conservative boundaries. This year, Taiwan became the first country on the Asian continent to legalize same-sex marriage after a ruling from its Constitutional Court. While Hong Kong has yet to follow the path of its neighbouring island, LGBTQ related rights continue to raise their profile in the legal sphere.
On 28 April 2017, the High Court of Hong Kong delivered a judgment that has been acclaimed as a victory for the local LGBTQ community and its supporters. The constitutional arguments advanced examined the right to equal treatment and the right against sexual orientation discrimination. The applicant, Mr. Leung Chun-Kwong, married Mr. Scott Adams on 18 April 2014 in New Zealand – where same-sex marriage is legal. The Civil Service rules entitled the applicant’s family to enjoy certain medical and dental benefits. Mr. Leung’s request that his spouse be eligible to receive such benefits was denied. Mr. Leung also filed a tax return, requesting joint assessment with Mr. Adams as his spouse. This too, was refused. The grounds for refusal in both decisions stemmed from the same-sex orientation of Mr. Leung’s marriage.
Mr. Leung argued that both decisions violated his right to equality and his entitlement to be free from discrimination, as set forth in the Basic Law and the Hong Kong Bill of Rights. However, he was only successful in challenging the decision on benefits. The Civil Service rules defined “family” to include a “spouse”, but they did not indicate that a spouse had to be of opposite-sex. Thus, the judge had no difficulty in finding that the applicant’s right to equal treatment had been infringed due to unlawful discrimination based on his sexual orientation. Using the case of Secretary for Justice v Yau Yuk Lung as precedent, the judge concluded that there was no justification for treating the applicant differently to other opposite-sex couples.
First, he held that it was not unlawful for the Secretary for Civil Service to recognize a same-sex marriage as legally valid in the jurisdiction in which it was performed, or to accord such couples the same spousal benefits. Second, it was held that recognising a same-sex spouse as being entitled to certain benefits did not threaten the institution of marriage in Hong Kong. Finally, the judge concluded that the aim of ensuring overall consistency in the field of Hong Kong matrimonial laws did not warrant imposing discriminatory measures in relation to the conferral of civil service benefits.
In contrast, the judge ruled that the decision regarding tax did not engage the right to equality because the definition of “marriage” for the purpose of filing a joint tax assessment under the Inland Revenue Ordinance was exclusive to married opposite-sex couples. However, the judge made clear that his ruling was limited only to an issue of statutory interpretation. He stressed that he was not ruling on whether same-sex couples had a constitutional right to file joint tax assessments. In particular, he expressly left open the issue of whether a same-sex marriage should nevertheless be “treated” as a marriage. Furthermore, he raised the possibility that the equality provisions protected under the Basic Law or the Hong Kong Bill of Rights could demand the definition of “marriage”, as presently construed, to be amended or even repealed.
While the victory in Leung Chun-Kwong v Secretary for Civil Service and Inland Revenue may be viewed as a partial one for the LGBTQ community, one must remain mindful that Windsor v United States, a US Supreme Court case permitting same-sex spouses to be eligible for federal estate tax exemption, did not end as a hollow victory. On the contrary, it became a milestone precedent that paved the way for Obergefell v Hodges, where the US Supreme Court ultimately legalised same-sex marriage across the whole of the United States.