By Mabel Au
Is it justifiable for the government to treat someone differently simply because of who they love?
The question goes to the very heart of a test case being heard by the Court of Appeal this week – the QT case will focus on whether the refusal by the Immigration Department to issue a dependant visa to the same-sex partner of a professional on a work visa is unconstitutional.
The court will grapple with difficult legal arguments involving the Basic Law, the Bill of Rights and executive discretion, particularly in the area of immigration. Overall, the ruling will send a message as to how welcoming our city is for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.
The hearing comes against a backdrop of positive developments for LGBTI rights in East Asia. Last month, Taiwan’s Constitutional Court declared provisions limiting marriage to different-sex couples as unconstitutional, a decision which created waves here in Hong Kong. The Taiwanese government now must legislate for equal marriage; incidentally, a draft bill to do just that has already passed a first reading in the legislature.
In Japan, several local governments have started to issue certificates of recognition to same-sex couples, in order to overcome some of the everyday discrimination couples face: from hospital visitation rights to tenancy. A growing number of private corporations there have also extended benefits to employees in same-sex unions. These positive moves dispel the argument put forward by some that recognizing same-sex relationships conflicts with “Asian values”.
In Hong Kong the issue of employment benefits was also the subject of a recent important decision in the case of Angus Leung, a local civil servant. The Court of First Instance ruled that Mr. Leung’s same-sex husband whom he had married overseas was entitled to spousal benefits, and that to deny them was discrimination on the basis of sexual orientation. The ruling was truly a first for Hong Kong.
The government’s decision to appeal, sends a worrying message as to its position on equality for LGBTI people. However, the judge in that decision also specifically distinguished the QT case. His observation that in immigration affairs authorities enjoy “broad discretion” will likely be cited by the government’s lawyers as they prepare for this week’s appeal hearings.
But it is not as simple as that. Government discretion, however wide, is not a blank cheque. Immigration laws and policies are not exempt from human rights scrutiny, and for the government to discriminate is a clear violation of human rights.
Opponents of recognizing rights of LGBTI individuals argue Hong Kong has yet to adopt specific laws to protect sexual orientation. However, this ignores that international treaties that are part of Hong Kong’s legal landscape and enshrined in the Basic Law and the Bill of Rights, already prohibit discrimination on the basis of sexual orientation. Instead of retreating from these commitments the government should go further and introduce comprehensive LGBTI anti-discrimination legislation.
A further counter-argument is that the recognition of same-sex marriages or other partnerships would somehow infringe on others’ human rights to freedom of conscience, religion or belief. For example, some say that would mean their taxes would be used, against their own convictions, to cover deductions for same-sex married couples, and access to public health services for dependent partners like QT.
But this argument is not convincing. Public spending, just like immigration, is a policy decision, hence the government is under the duty to provide reasonable and objective grounds for withholding certain benefits from particular groups.
Secondly, the right to freedom of religion and belief is not absolute, but needs to be balanced with the rights of others. Freedom of religion can therefore be limited where it is necessary to protect the rights of others to be free from discrimination, which itself is also a legitimate public aim.
There is also the everyday discrimination which needs to be addressed. Why should a same-sex partner, formally recognized in another jurisdiction, be denied the right to visit when their partner is in hospital, to share childcare responsibilities, or to inherit property from a deceased partner even if no legal will exists?
It is often claimed that LGBTI people somehow want special rights, in the form of extra benefits or protection. But nothing could be further from the truth. All these communities want and deserve is equality. Whether Hong Kong moves closer to achieving LGBTI equality is what is at stake in the QT appeal.
Mabel Au is the director of Amnesty International Hong Kong