The Court of Final Appeal in Hong Kong on Thursday (6 June) ruled in favor of a gay senior civil servant suing for spousal benefits for his husband.
Angus Leung, an immigration officer who married his husband Scott Adams in New Zealand five years ago, sued the government in 2015. It had refused to recognize his marital status and grant his husband benefits such as medical insurance.
On Thursday, five judges led by Chief Justice Geoggrey Ma ruled Hong Kong’s civil service and Inland Revenue Department must recognize the pair as a married couple.
In a 32-page statement, judges said the two departments had failed to act differentially towards Leung.
They admitted the government had a ‘legitimate aim’ to protect the heterosexual marriage.
However, judges ruled: ‘It cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation.’
‘How is it said that allowing Mr Adams medical and dental benefits weakens the institution of marriage in Hong Kong?’ judges asked.
‘How does permitting the appellant to elect for joint assessment of his income tax liability under [tax law] impinge on the institution of marriage in Hong Kong?’ they also asked.
No time to waste
Advocacy group Hong Kong Marriage Equality called on the government to implement full recognition of same-sex marriage.
‘There is no more time to waste. The government should immediately implement the court’s reasoning by introducing marriage equality and reviewing all policies and laws that discriminate against families on the grounds of their sexual orientation.’
‘This decision by the court highlights the gap between LGBT+ rights and the current policies and laws that discriminate against the LGBT+ community’ the group said in a statement.
‘Ensuring equality for same-sex couples enhances the institution of marriage, protects families and strengthens our community’.
Long battle for equality
Leung initially filed for judicial review in 2015. He alleged violations of the Basic Law, the Hong Kong Bill of Rights and the Sexual Discrimination Ordinance by his employers and the tax department.
They both refused to fully recognize his union as Hong Kong does not allow same-sex marriage.
In 2017, the Court of First Instance ruled the Civil Service Bureau should provide Leung’s husband spousal benefits. But it did not side with Leung on his application for joint tax returns.
Significantly, the judge said the ruling would not legalize same-sex marriage.
In July, however, Hong Kong’s Court of Appeal quashed the ruling. The judge argued that the city’s mini-constitution, the Basic Law, favors heterosexual unions.
Earlier this year, the court allowed an appeal on some of the issues raised by Leung.
‘Time the government take the initiative’
Amnesty researcher Doriane Lau posted a statement on Twitter arguing that however beneficial, the court ruling is no end result.
‘While today’s judgement is very positive, it is outrageous that LGBTI people in
#HongKong continue to have to go to court in order to force the authorities to treat their relationships as equal.
‘It is time the govt take the initiative and show leadership.’
I urge the Gov't to reverse its previous stance of fighting #LGBT #equality lawsuits. It becomes increasingly clear that in the eyes of the court, the LGBT community should not be treated unequally before the law. Mend the policies! https://t.co/gzSMHMcDWA
— Ray Chan (@ray_slowbeat) June 6, 2019
Moreover, Raymond Chan, a member of the Legislative Council, told Gay Star News that the trial was not about Leung, but the legacy the case forges.
‘It makes it possible for all other current and future civil servants to enjoy the rights they should be entitled to.’
He added: ‘As it becomes increasingly clear that in the eyes of the court, the LGBT community should not be treated unequally before the law, the Government should use its resources and public funds wisely to review existing laws and policies to study, suggest, and enact rectifications to discriminatory laws and policies.
‘In so doing, Hong Kong earns its reputation as an open and tolerant society.’
To the courts
Hong Kong does not recognize same-sex marriage. Nor is there any anti-discrimination legislation to protect LGBTI people.
But, after a landmark court ruling in July last year, Hong Kong does recognize overseas same-sex unions when granting spousal visas.
A lesbian woman, known as MK, is arguing in the High Court that preventing her from forming a partnership contravenes her rights to equality and privacy.
Hong Kong’s top court is now conducting the final hearings in the case and is expected rule in the next few months.
Meanwhile, a 21-year-old student, known as TF, and a 31-year-old activist, known as STK, are leading marriage equality challenges.
The men argue that government policy violates their right to equality.
What’s more, last month, renowned lesbian heiress, Gigi Chao launched a new group, Hong Kong Marriage Equality.