Hong Kong claims to be a world-class city, but when it comes to LGBTQI rights, many doubt how modern the city is. The modern concept of discrimination may, as it has in many jurisdictions, be updated by the courts, not by government policy. The pivotal moment my have arrived last Wednesday, when Hong Kong’s Court of Final Appeal (CFA) handed down a landmark ruling that cleared the way for a lesbian expatriate couple to get a spousal visa.
Government’s choice
The equal rights movement in Hong Kong has had a rocky path of late. Last month, the public library pulled LGBTQI children’s books off their shelves after a petition from an anti-gay group, which caused an uproar in the community. They were sequestered in a special section of books that are only available on request.
Also last year, the Civil Service Bureau stood by its stance of denying a civil servant’s same-sex marriage partner the benefits enjoyed by the spouses of heterosexual colleagues. The courts agreed with the government, with a ruling hinging on whether or not the couple were married.
Courts beg to differ – this time
Members of the LGBTQI community hailed the most recent development as “one step forward, two steps back.”
Known as QT, the British plaintiff married her partner in London, but was denied a spousal visa by Hong Kong’s Immigration Department in 2014 when her partner moved to the city for work. The case was contested up to the CFA.
Under the prevailing immigration policy, the spouse of an eligible sponsor in Hong Kong may apply for a dependent’s visa. In the case, the officer in charge adopted the meaning of “spouse” as a party to a marriage consisting of one man and one woman, as recognised by the laws of Hong Kong. In practice, the Hong Kong government normally grants such visas to heterosexual married couples.
Narrow scope of the ruling
The courts, however, have decided that the Department of Immigration cannot discriminate against same-sex marriages for the purpose of granting spousal dependent visas.
“The government respects the CFA’s judgment. We are studying the judgment carefully and shall seek legal advice as necessary on follow-up actions,” a spokesman for the Hong Kong government says.
The CFA has made it clear that this case does not involve any claim that same-sex couples have a right to marry under Hong Kong law.
Bigger talent pool
Now the same rights have extended to same-sex couples that married overseas. Many welcome the move by the court, saying it helps create an inclusive society and more importantly, can serve to attractive high level talent to Hong Kong.
“The immigration policy should not treat heterosexual or homosexual partners differently, as immigration policy is meant for drawing foreign talent. Hong Kong, after all, is an international city,” claims Raymond Chan Chi-chuen, an openly gay legislator from People Power.
Suen Yiu-tung, assistant professor of Gender Studies Programme at CUHK, worries that sexual orientation discrimination could force the homosexual talent away from the city, which would in turn hurt Hong Kong’s competitiveness.
He says studies have shown more people are now supporting same-sex marriage in Hong Kong, so the government cannot argue that there is no need to study the policy in question.
Jimmy Sham Tsz-kit, a spokesman for the activist group Rainbow Action, says the ruling revealed that Hong Kong’s policy in this regard is backward.
“The government must review its prevailing policy to ensure we are catching up with the global development regarding human rights. This way, we can maintain our competitiveness,” says Sham.
Trailing spouses and trailing global trends
In the U.S., the Supreme Court’s federal marriage equality decision in 2013 indicates that same-sex marriages are treated the same as heterosexual marriages for immigration purposes under U.S. law.
Meanwhile in Australia, partners in a same-sex marriage are also eligible for a visa since last December, following the legalisation of same-sex marriage in the country.
In Asia, only Taiwan has legalized same-sex marriage, after constitutional court rulings on the subject in May 2017.
However, the ruling in Hong Kong could pressure other Asian financial hubs such as Singapore and Japan to review their policy to vie for business and talent. However, given global precedent, the courts will likely continue to force change by decree where governments fear to tread.
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