By Kamilyn Choi and Jan Wetzel
Soon, the Court of First Instance will deliver its judgment in the case of “MK”, a woman asserting that Hong Kong law violates her human rights to privacy and equality by not providing any form of recognition for same-sex unions.
It is a ground-breaking case which could have huge repercussions for the relationship rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Hong Kong.
Change is on the horizon. In June this year, the Court of Final Appeal in Leung Chun Kwong v. Secretary for the Civil Service and Another held that restricting spousal employment benefits and joint tax assessment to opposite-sex couples could not be justified and amounted to sexual orientation discrimination.
Leung built on the success of an earlier case, QT v. Director of Immigration, in which the same court held that the blanket denial of dependent visas for partners in formal same-sex relationships was unlawful.
This was hailed as a huge step forward for LGBTI rights in Hong Kong, but the case of MK may now test how progressive the Court of Final Appeal’s judgment in Leung actually was. Before striking down the government’s policies, the Court accepted that “protection of the traditional family constituted by heterosexual marriage” was a “legitimate aim”.
In that case, the policies in question were rejected partly because the Court found they did nothing to further this aim. But in effect, this means the Court left the government with an opening to use “protection of traditional marriage” as a future justification for denying equal treatment to same-sex couples – notwithstanding its tenuous footing in international case law.
The Court based its acceptance of this concept on several judgments by the European Court of Human Rights and UK courts. However, a closer look at this evolving case law shows that protection of the traditional family is seen as a legitimate aim “in principle”, but rarely in practice.
More recently, the European Court has repeatedly declared this aim to be “rather abstract”, and one that could be satisfied by a wide variety of measures—presumably including those that do not exclude same-sex couples. It has also reiterated that such an aim should “take into account developments in society”, and in one recent case dismissed it outright.
Other cases in Europe have likewise seen criticism of this notion, holding that, at most, it should be construed very strictly and narrowly.
Courts in the past have especially used this concept to distinguish rights of partners in a marriage or similar union from those “only” cohabitating. But the couples in both QT and Leung were in formal unions, recognised as lawful under foreign law. And international case law is clear that same-sex couples cannot be treated in the same way as unmarried opposite-sex couples if same-sex couples do not even have the option of marriage or other formal unions.
Across the world, arguments based on protecting the traditional family are increasingly being rejected. UN bodies have concluded that tradition cannot offset discrimination, including on the basis of sexual orientation.
The Constitutional Court of South Africa has held that traditional notions of marriage or family may not impair the constitutional rights of same-sex life partners. The Inter-American Court of Human Rights, too, has found that protecting the traditional family can coexist with protecting “non-traditional” families, laying out a positive obligation on states to guarantee equal access to all relevant rights and legal provisions to same-sex couples, including marriage.
In Asia, Taiwan’s Constitutional Court two years ago determined that the aim of safeguarding “basic ethical orders” based on existing opposite-sex marriage fails to constitute a rational basis for differential treatment of same-sex couples.
This case law from across the globe shows that “protecting traditional marriage” by itself is no longer a legitimate aim for differential treatment on the basis of sexual orientation.
It is also worth reconsidering why this aim should be legitimate in the first place, particularly in the context of LGBTI rights. Underlying the aim is the dubious premise that traditional families are—due to the expansion of rights for same-sex couples—under threat of devaluation and hence in need of special protection.
Moreover, using the concept of “tradition” in a legal setting carries the risk of legitimising inherent discrimination, as this may import yesterday’s stereotypes and stigmas into the present.
Perhaps former Canadian Supreme Court Justice L’Heureux-Dubé said it best more than 25 years ago: “It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values.”
If the Court accepts as a legitimate public policy aim that stable, enduring, close and caring relationships should be encouraged, as it did in QT, then legal recognition should not be limited to opposite-sex relationships.
The Court of Final Appeal’s finding of discrimination in Leung was clear progress. But its acceptance of the aim of “protecting traditional marriage” may have wider negative repercussions. MK and other cases will likely further shape and interpret this notion, but it is time this aim is exposed for what it is: a smokescreen for opposition to LGBTI equality.
Kamilyn Choi is a second-year JD student at Yale Law School, USA. In the summer of 2019, she was a placement student with the Strategic Litigation Unit of Amnesty International. Jan Wetzel is a senior legal adviser in the East Asia Regional Office of Amnesty International.