HONG
KONG HUMAN RIGHTS
MONITOR
4/F Kam Tak Building, 20
Mercer Street, Sheung
Wan, Hong Kong
Phone: (852) 2811-4488
Fax: (852) 2802-6012
Email: contact@hkhrm.org.hk Website: http://www.hkhrm.org.hk
FOR IMMEDIATE RELEASE
Full
report: http://www.hkhrm.org.hk/PR/sexualorientationpaper.htm
Enquiry: Law Yuk Kai (Director) -2811 4488/
9788 3394
SEXUAL
ORIENTATION AND HUMAN RIGHTS IN HONG KONG
Executive Summary
A decade ago, in 1994, the United Nations
Human Rights Committee declared that discrimination on the basis of sexual
orientation is a violation of the fundamental human rights enshrined in the
International Covenant on Civil and Political Rights (“ICCPR”). In the ten
years since, the protection of sexual orientation rights have developed such
that Hong Kong, as a part of the international human rights regime, can no longer
ignore the human rights norms and obligations associated with sexual
orientation.
According
to the UN bodies that monitor compliance with major international human rights
treaties, sexual minorities are protected by those treaties. Moreover, these UN
bodies have criticized Hong Kong for failing to adequately protect sexual minorities. In 2001, the
UN Committee on Economic, Social, and Cultural Rights criticized Hong Kong, stating that “the
failure of the HKSAR to prohibit discrimination on the basis of sexual
orientation” is a “principal subject of concern.” On May 14, 2005, the UN Committee on Economic, Social, and Cultural Rights repeated
its criticism, stating that it “wishes to reiterate in particular
its concern [that] . . . present anti-discrimination legislation [in Hong Kong] does not cover discrimination on the
basis of . . . sexual orientation.” In 1999, the UN
Human Rights Committee similarly criticized Hong
Kong: “The Committee remains concerned
that no legislative remedies are available to individuals in respect of
discrimination on the grounds of race or sexual orientation.” As a city that
strives to comply with standards set forth by the UN, Hong Kong should not treat
these criticisms lightly.
Development
of sexual orientation rights is not confined to the UN. Many states across the
world have enacted laws that protect sexual minorities. Furthermore, these
developments are not confined to the Western world. For example, South Africa, Ecuador, and Fiji illustrate this fact; all three of these states have modified their
national constitutions to expressly proscribe sexual orientation
discrimination. In another example not very far from Hong Kong, the government of Taiwan
has taken steps to protecting sexual minorities. Taiwan
has already established public policies that protect sexual minorities. There
is also pending legislation in Taiwan to
legalize same-sex marriage.
Opponents
to sexual orientation rights might point out that a fair number of states still
do not protect sexual minorities. Indeed, many countries still tolerate or even
sanction violence against sexual minorities. These states, however, are not Hong Kong’s peers; they are
states that generally have poor human rights records and are regularly
condemned by the UN and international NGOs. Thus, while it is true that Hong Kong is not the only state
that lacks legal protection for sexual minorities, Hong Kong must ask itself
whether it wishes to be associated with these states that maintain poor human
rights records.
Some
groups in Hong Kong have asserted that there should be a ceiling placed on local sexual
orientation rights because sexual orientation is a sensitive cultural issue
that should be molded to fit the local culture of Hong Kong. This logic is
faulty. Four reasons stand to challenge that logic. First, the UN Human Rights
Committee has explicitly denounced culture as a defense
to violations of sexual orientation rights. Second, the human rights regime’s
purpose is to protect minorities, especially when they are marginalized by
local majoritarian cultures. Third, other Asian
jurisdictions with similar cultural mores (e.g., Taiwan)
have begun to accommodate sexual orientation rights. And fourth, studies show
that Hong Kong is culturally receptive to the protection of sexual minorities; in
2002, Hong Kong Polytechnic University conducted a public opinion survey and found that up to 80 percent
of respondents supported extending equal rights to gays and lesbians.
To
improve Hong Kong’s treatment of sexual minorities, this report proposes a
three-pronged policy reform. First, the government of Hong Kong should equalize the
age of consent laws governing same-sex and opposite-sex sexual relations.
Second, the government should establish a sexual orientation antidiscrimination
ordinance. Third, the government should establish means for recognizing
same-sex partnerships. With that said, Hong
Kong must begin reforms in order to
maintain its standing as a world city that abides by international standards.
Equalizing
Age of Consent Laws
Currently, Hong Kong maintains divergent
regulations on same-sex and opposite-sex sexual relations. The age of consent
for gay intercourse (i.e., buggery) is 21, but the age of consent for
heterosexual (i.e., vaginal) intercourse is 16. Also, while men who engage in
underage vaginal intercourse are liable to imprisonment for up to five years,
men who engage in underage buggery are liable to life imprisonment. Interestingly,
Hong Kong’s age of consent laws entirely ignore the existence of lesbians.
Disparity
in ages of consent between same-sex and opposite-sex relations is a violation
of human rights law. Such disparity violates the antidiscrimination provisions
of the ICCPR and the Convention on the Rights of the Child (“CRC”). From a
comparative standpoint, Hong Kong is out-of-line with its Asian peers. Taiwan, South Korea, Thailand, Vietnam, Cambodia, and the Philippines all have equal ages of consent between homosexual and heterosexual
couples. In Europe, the European Commission on Human Rights stated that disparity in
age of consent laws infringes human rights—both the individual’s right to
privacy and the individual’s right to nondiscrimination.
These principles have been echoed in subsequent determinations at the European
Court of Human Rights (“ECHR”). Because Hong
Kong’s regulation of sexuality is inconsistent
with human rights norms, Hong Kong must reform its criminal laws by eradicating all disparities
between its age of consent laws.
Establishing
an Antidiscrimination Ordinance
At present, sexual minorities in Hong Kong have no legal redress
against discrimination. The only government progress has been through
non-enforceable policy declarations issued by the Home Affairs Bureau. In its
statement, “Equal Opportunities: Sexual Orientation,” the Home Affairs Bureau
announced that “[e]veryone shall have equal
opportunities in every aspect of life, irrespective of race, colour, sex,
religion, sexual orientation, or any
other status. . . . [A]part from their sexual orientation, bisexuals, lesbians
and gays are the same as any other members of the community.” The Home Affairs Bureau also published
a “Code of Practice Against Discrimination in
Employment on the Ground of Sexual Orientation.” Unfortunately, the code is
again only a list of recommendations.
The UN Human
Rights Committee has stated that individuals should not be denied civil and
political rights on the ground of sexual orientation. Meanwhile, the UN
Committee on Economic, Social, and Cultural rights has stated that individuals
should not be denied their economic, social, and cultural rights based on the
ground of sexual orientation. These civil, political, economic, social, and
cultural rights manifest in various forms such as sexual minorities’ equal
right to employment, public services, and access to public accommodation.
The
UN is not alone in championing sexual minorities’ right to nondiscrimination.
Jurisdictions around the world have taken initiatives to protect sexual
minorities’ right to equality. In Europe, for example, the Treaty establishing the European Community (the
Treaty of Rome) includes “sexual orientation” as a ground for protection
against discrimination. Subsequently, the European Council issued a directive
in 2000 expressly prohibiting direct and indirect discrimination against sexual
minorities with regards to employment.
Protection
of sexual minorities is not confined to Europe. For example, in Canada,
sexual orientation is a ground for protection in the Canadian Human Rights Act
as well as the human rights codes of individual Canadian territories. In the United States numerous states and municipalities prohibit discrimination on the
basis of sexual orientation. In Central and South
America, sexual orientation is a ground
for protection in various local and national laws of Brazil, Costa Rica, and Ecuador. In Africa, South
Africa’s
constitution expressly protecting sexual minorities and Namibia’s
employment laws also protect sexual minorities. In the Middle East, Israel’s
employment laws expressly protect sexual minorities. New Zealand and Australia both have laws protecting the opportunity rights of sexual
minorities. In Asia, Hong Kong’s neighbor, Taiwan,
recently passed a law protecting sexual minorities’ right to educational and
recruitment opportunities. Additionally, Taiwan’s
pending human rights basic law would further those rights. In Korea,
the National Human Rights Commission Act subjects discrimination on the ground
of sexual orientation to the Commission’s investigation.
As
illustrated above, equality protections for sexual minorities is widespread.
Given this backdrop, one thing is strikingly clear: Compared to its peer
jurisdictions that respect human rights, Hong
Kong is the odd one out with no
enforceable legislation expressly protecting sexual minorities. If Hong Kong is to maintain its
reputation as a world city, it must enact antidiscrimination legislation to
protect sexual minorities.
Recognizing
same-sex partnerships
A specific subset of sexual
minorities’ equal rights is their right to recognition for same-sex couples.
The UN Human Rights Committee and a growing number of jurisdictions around the
world recognize same-sex partnerships.
The
LegCo Subcommittee to Study
Discrimination on the Ground of Sexual Orientation attempted to address the
right of same-sex couples, but the attempt largely failed. The
Hong Kong government has conflated same-sex couples’
rights with “marriage” rights and dismissed such rights altogether. This logic is faulty. It is
possible to grant partnership status to same-sex couples without recognizing same-sex
marriage. The government of Hong Kong should consider the following options for
recognizing same-sex couples: (1) establishing a preliminary non-rights
conferring partnership registry, (2) establishing a rights conferring
partnership registry, (3) legalizing same-sex marriage, and (4) recognizing
same-sex couples for the purposes of immigration law.
Conclusion
To conclude, Hong Kong’s poor standing on
the issue of sexual orientation necessitates legal reform. Reforms can be
placed into three categories: First, the Administration should eradicate any
discrepancy between the criminalization of same-sex and opposite-sex sexual
relations. Second, the Administration should enact an antidiscrimination
ordinance to protect the equal rights of sexual minorities. Third, the
Administration should enact additional legislation to grant recognition to
same-sex couples.