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Hong Kong Govt struggles to justify discriminatory treatment in court

Hong Kong Govt struggles to justify discriminatory treatment in court

This Hong Kong couple want to have their relationship recognized | Courtesy of Angus Leung

Lawyers representing the Hong Kong government in a high-profile LGBTI rights court case appeared to flounder in the final phase of the legal battle on Tuesday (7 May).

Immigration officer Angus Leung, who married his husband in New Zealand five years ago, sued the government in 2015.

The government had refused to recognize his marital status and grant his husband benefits such as medical insurance.

Hong Kong’s top court is now conducting the final hearings in the case and is expected rule in the next few months.

Lawyers representing Leung on Tuesday argued same-sex marriage was no different from any other marriage, according to local media RTHK.

But, government lawyers said Hong Kong only recognized marriage between a man and a wife.

They said granting benefits would undermine the ‘special status’ of marriage in Hong Kong.

Leung’s lawyer, Karon Monaghan QC, pushed the government to explain:

‘It has to be justified. It’s not enough to say marriage is special and unique’.

Justice Roberto Ribeiro, one of the presiding judges, also asked: ‘Why are you saying that it was undermining the tradition of marriage…because a gay person is now allowed to see a dentist’.

Monaghan maintained the government had failed to form a ‘rational connection’ between marriage as ‘special and unique’ and granting Leung his rights.

‘It is the way it is. It has always been what it is. But that is not a reason for excluding a same-sex couple,’ she said. ‘That is entirely circular.’

Angus Leung and Scott Adams (Photo: Facebook)

Indefensible

LGBTI rights activist Billy Leung said it was ‘morally and legally indefensible’ that the Hong Kong government claimed to be committed to equal opportunities but was now fighting to ensure gay and lesbians civil servants don’t get equal treatment.

‘As the largest single employer of Hong Kong, a win for Angus will mean that married gay and lesbian people working in the civil service will have equal benefits as their heterosexual counterparts’ he told Gay Star News.

Long battle for equality

Angus 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 2018, 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.

This latest court case for LGBTI rights comes after the Court of Final Appeal in July ruled Hong Kong’s immigration department must recognize same-sex unions in spousal visa applications.