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SEXUAL ORIENTATION AND HUMAN
report issued by the
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, sexual orientation rights
have developed such that
In 2001, the Legislative Council’s Panel
on Home Affairs formed a subcommittee to study discrimination on the ground of
sexual orientation. Although the
subcommittee’s efforts have been commendable, its studies have largely failed
to frame sexual orientation as a question of human rights. Notably, the subcommittee has failed to
prompt the government of
In light of human rights developments, it
is imperative that
Such legislative reform is necessary on
two fronts. First, on the international
front, legislation is necessary to fulfill
This Paper is organized in four
parts. Section I provides background on
the development of sexual orientation rights as human rights. Section II discusses international jurisprudence
on the criminalization of sexual relations and shows that
I. SEXUAL ORIENTATION RIGHTS AS HUMAN RIGHTS
the past decade, sexual orientation rights have established a firm footing in
the international human rights regime.
This Section begins by providing a brief summary on the status of sexual
orientation rights as human rights. It
then highlights evidence that sexual orientation rights are indeed universal, as opposed to regional and
culturally relative norms. The
developments described in this Section cast a bright light on
A. International Developments
recognition of human rights often develops over time. Recognition of women’s rights is an example. Similarly, sexual orientation rights did not
develop overnight. Rather, they
developed gradually—though rapidly—over the past decade. These developments can be observed in the United
Nations (“UN”) system, as well as in regional and national practices. These developments have created a body of
international law that
i. The United Nations system
Developments in the United Nations are indicative of the status of sexual orientation rights. Five of the six United Nations treaty bodies have declared that their respective treaties encompass sexual orientation rights. The Human Rights Committee has stated that the ICCPR protects sexual minorities; the Committee on Economic, Social, and Cultural Rights has stated that the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”) protects sexual minorities; the Committee on the Rights of the Child has stated that the Convention on the Rights of the Child (“CRC”) protects sexual minorities; the Committee on the Elimination of Discrimination Against Women has stated that the Convention on Elimination of All Forms of Discrimination Against Women (“CEDAW”) protects lesbians; and the Committee on Torture has stated that the Convention on Torture protects sexual minorities. The only treaty body that has not addressed sexual orientation is the Committee on the Elimination of Racial Discrimination because it only addresses the issue of race.
This development in UN treaty bodies helps to dispel scepticism regarding sexual orientation rights. Opponents to sexual orientation rights sometimes note that the words “sexual orientation” do not appear in the title or express provisions of any major human rights treaties. They then conclude that, due to this omission, sexual minorities are not protected by international law. The development in UN treaty bodies, however, rejects such faulty logic.
Essentially, the UN treaty bodies have declared that sexual orientation rights are subsumed by existing provisions in their respective treaties. For example, the UN Human Rights Committee has announced that “sexual orientation” is subsumed by the ICCPR’s protection against discrimination on the basis of “sex.” Meanwhile, the UN Committee on Social, Economic, and Cultural Rights has suggested that “sexual orientation” is a ground for protection that is subsumed by the ICESCR’s “other status” grounds.
The treaty bodies are not the only organs that now regard sexual orientation rights as human rights. Five UN Special Rapporteurs now include sexual orientation issues in their agendas. Ad hoc working groups established by the UN Human Rights Commission address sexual orientation rights. The UN High Commissioner on Refugees has also declared that sexual minorities are protected by the Convention on Refugees.
sum, according to the UN system, sexual minorities are protected by existing
human rights treaties. Moreover, the UN
system has remarked upon
ii. Evolving regional and national practices
Scholars often use the evolution of regional
and national practices to assess the development of human rights norms. Accordingly, it is worth noting that regional
and national practices reflect the fact that sexual orientation rights are
protected as human rights. The
development of sexual orientation rights is most rapid in—though certainly not
The European Union has also taken many steps to protect the human rights of sexual minorities. For example, in 1994, the European Parliament called upon the Commission of the European Community to recommend that member states terminate “the barring of lesbians and homosexual couples from marriage or from an equivalent legal framework . . . and any restriction on the right of lesbians and homosexuals to be parents or to adopt or foster children.” The European Union has also declared that respect for sexual orientation rights is a prerequisite for states that join the European Union through its enlargement process.
of sexual orientation rights is not confined to
assessing practice, opponents may point out that a good number of states still
do not protect sexual minorities. In
fact, many states still tolerate or even sanction violence against sexual
minorities. Those states, however, have
been severely criticized by the UN and international NGOs such as Amnesty
International and Human Rights Watch. Thus, while it is true that regional and
national practices are divergent, Hong Kong must ask itself whether it wishes
to associate with governments that are well-regarded by the international human
rights community or governments that receive condemnation. As a truly cosmopolitan city, it is in
iii. The weight of law
developments described above are not merely anecdotal; they illustrate that
to mainstream international law, when treaty and customary law are unclear,
international court decisions and the writing of international jurists serve as
a subsidiary source of law. Thus, statements from the UN system and
opinions from regional human rights tribunals serve as a subsidiary source of
law. Traditionally, international
lawyers give great deference to UN treaty bodies
and the European Court of Human Rights—both of which have declared that
states have legal obligations with regards to sexual orientation. Thus, arguments that
On top of the weight of international law,
there are simpler policy concerns.
B. Sexual Orientation Rights Are Universal Rights
UN Human Rights committee has denounced the idea that culture trumps sexual
orientation rights. Toonen v. Australia
was the seminal case in which the UN Human Rights Committee upheld the right to
be protected against discrimination on the basis of sexual orientation. In the case, Nicholas Toonen, a gay rights
only is the use of culture to defend discrimination legally invalid, it is
offensive to the human rights regime.
The human rights regime was founded on the premise that those who are
most marginalized by majoritarian culture must be protected against oppression by
the majority. Accordingly, if social norms in
Even if it were assumed for the sake of
argument that culture should be taken into account, the notion that sexual
orientation rights are incompatible with
assuming for the sake of argument that local culture may trump sexual
orientation rights, culture should still not pose a bar to anti-discrimination legislation
II. BASELESS CRIMINALIZATION
is commendable that
A. Hong Kong’s Buggery Laws
The first troubling discrepancy lies in the age of consent for gay intercourse. Presently, the age of consent for gay intercourse (i.e., buggery) is 21. As will be discussed below, this discrepancy is a violation of international law on non-discrimination. The higher age of consent for gay couples also raises numerous public policy concerns. Because it is technically illegal for gays between the ages of 16 and 21 to have sex, it is arguably illegal to approach these young gay men to educate them on safer sex. Furthermore, the higher age of consent suggests that young gay men are less capable of decision-making, ultimately stigmatizing gay young adults.
The second troubling discrepancy lies in the difference between the degrees of punishment for underage sexual relations. 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. As will be discussed below, this excessive punishment is a violation of international law. From a public policy standpoint, excessive punishment stigmatizes gay men by unjustly suggesting that gay sex is an expression of love that is less legitimate than heterosexual sex is.
third troubling discrepancy lies in the fact that
The Hong Kong government justifies its heightened age of consent for buggery with an illogical stretch of reasoning; it argues that Hong Kong law also criminalizes heterosexual buggery that involves a female below the age of 21 and thus gays suffer no discrimination. In other words, according to the Administration, even though there is a discrepancy between the age of consent for vaginal sex and buggery, there is no difference between the age of consent for gay and heterosexual buggery. This point, however, is immaterial. By setting a higher age of consent for buggery in general, the government is still discriminating against gays because gays suffer from a disparate impact. That is to say, despite the superficial neutrality of buggery laws, gays suffer indirect discrimination because they are disproportionately impacted upon by the heightened age of consent. As discussed below, this indirect discrimination is a violation of international law.
Furthermore, even though the age of consent to buggery is 21 for both gay and heterosexual couples, the laws are discriminatory because in gay cases both parties are liable, but that is not so in heterosexual cases. In underage gay buggery cases, both partners are always liable to conviction and imprisonment—even the partner under 21. Contrarily, in buggery cases involving a female under 21, the female is never liable. Also, when a male who is under 21 commits buggery with a female over the age of 21, neither partner is liable for any crime.
The Hong Kong government has attempted to legitimize this type of discrimination with a seriously flawed public policy rationale: According to the Administration, by imposing liability on gay men under 21 who commit consensual buggery, those gay men will be deterred from blackmailing their older partners by disclosing their relationship. The Hong Kong Equal Opportunities Commission (“EOC”) has criticized this defective logic. In a submission to the Legislative Council (“LegCo”) Subcommittee on Discrimination on the Grounds of Sexual Orientation, the EOC offered a list of reasons why such logic is flawed, including the simple fact that there is no evidence to support the notion that gay men under 21 are likely to blackmail their partners. If the policy goal is to protect older men from blackmail, blackmail laws should be made more stringent; the solution does not rest in the discriminatory regulation of same-sex relations.
B. International and Comparative Law
two levels, international law affects the legality of
criminalization of sexual relations is a violation of international human
rights. As noted above, the UN Human
Rights Committee stated in Toonen v.
Australia, in 1994, that discrimination on the basis of sexual orientation
is proscribed by the ICCPR. Although the
ICCPR’s anti-discrimination provision, Article 26, does not expressly enumerate
“sexual orientation” as a ground for protection, the Human Rights Committee
held that sexual orientation is subsumed by the proscription of discrimination
based on sex. Accordingly, the Human
Rights Committee determined that
International law is not limited to the question of buggery in and of itself. International law also addresses criminalization insofar as age of consent is concerned. Disparity in ages of consent between same-sex and heterosexual relations is a violation of human rights law. Such a disparity is not only a violation of the ICCPR under the logic of Toonen; Article 2 of the Convention on the Rights of the Child (“CRC”) reiterates that logic by extending non-discrimination law to children.
Committee on the Rights of the Child is the UN’s treaty body that interprets
the CRC. The Committee has stated that
sexual orientation is a ground for protection under the CRC’s Article 2. Specifically, disparity in the legal ages of
consent based on sexual orientation is a violation of Article 2. The Committee first announced its position on
age of consent in a 2000 report on the
The CRC is not the
only international institution to declare that disparity in age of consent laws
is a violation of international norms.
The Council of Europe has made the same determination. In Sutherland v. United Kingdom,
the European Commission on Human Rights
first stated that disparity in ages of consent infringes human rights—both the
individual’s right to privacy and the individual’s right to
non-discrimination. These principles
have been echoed in subsequent determinations at the European Court of Human
Rights (“ECHR”). Just this past year, in
2003, the European Court of Human Rights held that a disparity in ages of
Finally, from a
C. Hong Kong Must Reform
the light of human rights considerations,
addition to complying with the law for law’s sake,
III. SEXUAL MINORITIES’ RIGHT TO EQUALITY
Decriminalization is but the first level of justice for sexual minorities. Human rights norms have extended beyond decriminalization to protect other equal rights to sexual minorities. Equality protections for sexual minorities range from the right of individual gays and lesbians to equal employment opportunities to same-sex couples’ equal right to have their partnerships recognized legally.
Section explores, from the perspective of international and comparative law,
the extent that equality protections should be extended to sexual
minorities. Subsection A briefly describes
the situation in
present, sexual minorities in
In theory, the Hong Kong Bill of Rights Ordinance (“BORO”) protects sexual minorities in its broad language. Like Article 26 of the ICCPR, Article 22 of BORO protects against discrimination on the grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” However, while the UN Human Rights Committee has found the ground of “sex” to include “sexual orientation,” the Hong Kong government has not made that determination—neither through case law nor though other forms of declaration. Thus, it is questionable whether BORO protects sexual minorities. Even if it does, BORO only regulates the government and other public entities. Therefore, it does not protect against discrimination in the private sector.
theory, the Basic Law should also protect sexual minorities. Article 39 of the Basic Law states that the
ICCPR “shall be implemented through the laws of the Hong Kong Special
and the ICCPR proscribes discrimination on the basis of sexual orientation. However, the
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.” While the statement is commendable, its declarative principles are only aspirational in nature and not legally enforceable.
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 first paragraph of the code states that “[i]ts purpose is to facilitate self-regulation on the part of employers and employees in eliminating discriminatory practices in employment.” Indeed, the Code only promotes “self-regulation” against discrimination on the basis of sexual orientation. The Code’s provisions are legally non-enforceable.
The Home Affairs Bureau has suggested that sexual minorities might be protected by the Employment Ordinance; however, this assertion is questionable at best. The Employment Ordinance does not expressly address sexual orientation; nor has the Administration offered evidence that individuals have successfully brought claims pursuant to the Employment Ordinance with regards to discrimination on the ground of sexual orientation.
regards to same-sex couples,
Administration should be lauded for suggesting, in a June 2004 statement, that
same-sex married couples from abroad can be recognized as legally married for
the purposes of
there is a glaring gap in
As already noted above, the UN human rights regime has stated that sexual minorities are protected by existing treaties. UN treaty bodies have invoked international law not only to protect sexual minorities from unjustified criminalization of homosexual conduct. Rather, international law has been invoked to protect additional equal rights for sexual minorities. This Subsection begins by discussing individual sexual minorities’ right to equality. It then addresses the equal rights of same-sex couples.
i. Sexual minorities’ right to equality: general background
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, access to public accommodation, succession, and many other rights.
protection of sexual minorities’ rights is not confined to statements made by
UN treaty bodies. Jurisdictions across
the globe have enacted constitutional provisions and statutory law to expressly
protect the equal rights of sexual minorities.
These provisions vary among jurisdictions across the world. This Subsection will begin by illustrating
how widespread the protection of sexual minorities’ equal rights has
become. It will then look at
1. Reform around the world
around the world have taken initiatives to protect sexual minorities’ right to
of sexual minorities is not confined to
illustrated above, protections of equality for sexual minorities is
widespread. Given this backdrop, one
thing is strikingly clear: Compared to its peer jurisdictions that respect
many jurisdictions across the world protect sexual minorities’ right to
equality, the degree of protection varies among jurisdictions. As
is worth noting that, in
legal rights of sexual minorities in
ii. Equal rights for same-sex couples
A specific subset of sexual minorities’ equal
rights is their right to enter into 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
In one instance of such flawed logic,
the Administration argued that same-sex partners cannot be deemed a family unit
for purposes of public housing applications.
The Administration justified this denial by asserting that same-sex
couples lack “relevant documentary proof such as marriage certificate [sic] . .
. to prove their family relationship.” However, such justification lacks
persuasiveness. If same-sex couples lack
marriage documentation, the solution is not to deprive the couple of housing,
but to grant the couple legal recognition via a domestic partnership
scheme. Indeed, same-sex partnership
rights and same-sex marriage rights are not synonymous. Even if the
It is imperative that Hong Kong grant legal recognition to same-sex partners. In this Subsection, the Paper will outline four routes of reform that Hong Kong should consider: (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.
1. Preliminary non-rights conferring partnership registries
a preliminary step, the
if a registry does not confer specific rights, it legally recognizes that two
individuals of the same sex are in a committed relationship. This recognition serves two important
goals. First, a registration serves as
evidence of partnership, which private employers may choose to use for their employee
benefits programs. Many international
enterprises offer benefits to their employees’ same-sex partners. Thus, a registry in
the registry serves as a symbolic first step.
Even if a registry does not confer specific rights that married couples
enjoy, the registry would create symbolic rights. When the City of
Although registration procedures vary among jurisdictions, registration usually requires the partners to complete an affidavit and/or provide evidence regarding the couple’s background information such as their age, cohabitation, financial and emotional relationship, and unmarried status.
2. Rights-conferring partnership registries
A registry without rights attached should, however, only serve as a first step. Arguably, such a registry does not satisfy human rights as they have been defined by institutions such as the UN Human Rights Committee and the ECHR. A more just registry would confer specific rights on same-sex couples—those that are enjoyed by committed heterosexual couples. Both the UN Human Rights Committee and the ECHR have recognized same-sex partnership rights.
2002, the LegCo Subcommittee to Study
Discrimination on the Ground of Sexual Orientation considered whether to extend
certain rights to same-sex couples.
These rights included the right to housing and health benefits. In both cases, the Committee summarily
concluded that, because same-sex couples cannot enter marriage in
businesses doing business with the City of
same-sex partners in
Rights-conferring same-sex partnership
registries are not limited to
rights conferred upon registered partners differ from jurisdiction to
jurisdiction. For example,
Although the UN Human Rights Committee has yet to hear a case directly addressing the appropriate scope of partnership rights, two members of the Committee opined in dicta that, unless a state’s laws allow for “recogni[tion of] same-sex partnership with consequences similar to or identical with those of marriage . . . [the] denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination prohibited under article 26 [the ICCPR’s anti-discrimination provision]”). Similarly, the European Parliament called upon the Commission of the European Community to recommend that member states terminate “the barring of lesbians and homosexual couples from marriage or from an equivalent legal framework . . . and any restriction on the right of lesbians and homosexuals to be parents or to adopt or foster children.”
establishing a domestic partnership registry, the
3. Same-sex marriage
Whether there exists a human right
to same-sex marriage is presently unclear.
In Joslin v.
It is important to remember that
human rights norms are not static; they emerge over time. Although it is a relatively recent trend,
states have begun to recognize the fundamental right of same-sex couples to
Clearly, the large majority of the
world’s jurisdictions have yet to legalize same-sex marriage. However, a growing number of states have come
to recognize that same-sex couples have a fundamental right to marriage. The government of
4. Immigration and other cross-border concerns
first question is whether, under
second question is how
As described by this Paper, necessary reforms can be placed into three categories: First, the Administration should eradicate any discrepancy between the criminalization of same-sex and heterosexual sexual relations. Second, the Administration should enact an anti-discrimination ordinance to protect the equal rights of sexual minorities. Third, the Administration should enact additional legislation to grant legal recognition to same-sex couples.
is hoped that this Paper will promote dialogue on the issue of sexual
orientation rights in
This report was researched and drafted for the
 See Toonen v.
 This Paper uses the phrase “sexual orientation rights” to bring under one umbrella the numerous rights associated with sexual orientation: equality rights, privacy rights, freedom of expression, freedom of association, etc. Specific substantive rights will be treated in greater detail in Parts II and III, infra.
 For the purpose of this Paper, “sexual minorities” shall refer to all peoples who do not identify with being heterosexual or, in colloquial terms, “straight.”
 In 1998, the government of
 The Taiwanese government is now considering legislation that would
legalize same-sex marriage. For more
 See generally Arvonne S. Fraser, Becoming Human: The Origins and Development of Women's Human Rights, 21 Hum. Rts. Q. 853 (1999).
 The UN Committee on Human Rights has held that the ICCPR protects
against discrimination on the basis of sexual orientation and that the ICCPR
protects the privacy rights of sexual minorities. See
 In a statement of interpretation regarding health care, the UN Committee on Economic, Social and Cultural Rights declared that Article 2(2) of the ICESCR proscribes discrimination on the basis of sexual orientation. CESCR General Comment No. 14, U.N. Doc. E/C.12/2000/4 at para. 18 (2000).
 The UN Committee on the Rights of the Child has interpreted Article
2 of the Convention on the Rights of the Child as barring disparity between
heterosexual and homosexual couples’ age of consent. See,
e.g., Concluding Observations of the
Committee on the Rights of the Child: (
 Pursuant to CEDAW, The UN Committee on the Elimination of Discrimination Against Women has called for the decriminalization of lesbianism. See, e.g., Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Kyrgyzstan, U.N. Doc. CEDAW/A/54/38 at paras. 127-28 (1999).
 Pursuant to the Convention Against Torture, The UN Committee on Torture has issued declarations criticizing states for prison conditions that discriminate based on sexual orientation. See, e.g., Concluding Observations of the Committee against Torture: Egypt, U.N. Doc. CAT/s/XXIX/Misc.4 at para. 5(e) (2002).
 See Toonen v.
 CESCR General Comment No. 14, U.N. Doc. E/C.12/2000/4 at para. 18 (“the Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status”).
 See Sanders, Human Rights and Sexual Orientation in International Law, at 25 (cited in note 4).
 United Nations High Commissioner on Refugees, Who is a Refugee?, http://www.unhcr.ch.
 See Concluding observations
of the Committee on Economic, Social and Cultural Rights (
 Concluding observations of
the Committee on Economic, Social and Cultural Rights (
 Concluding Observations of the Human Rights Committee (
 See Lustig-Prean v.
 See L. & V. v. Austria, unpublished opinion available at http://www.hrw.org/lgbt/pdf/l_and_v_v_austria.pdf (2003).
 See Karner v. Austria, unpublished opinion available at http://www.hrw.org/lgbt/pdf/karner.pdf (2003). But see Fretté v. France, 2 F.L.R. 9 (ECHR 2002) (plurality opinion) (holding that denying gays and lesbians the right to adoption did not violate the European Convention on Human Rights).
 1994 E.U.O.J. (C 61) 40 (Official Journal of the European Communities).
 See generally Travis J. Langenkamp, Finding Fundamental Fairness: Protecting the Rights of Homosexuals under European Union Accession Law, 4 San Diego Int’l L. J. 437 (2003).
 Sanders, Human Rights and Sexual Orientation in International Law, at 35-36 (cited in note 4).
 See Doug Struck,
 Paul Wiseman, Same-sex
Marriage Spurs Few Political Ripples in
 Debbie Wu, Human-Rights Law
Promises Change, Liberal Agenda: The Draft That Is to Be Presented to the
Cabinet Will Abolish the Death Penalty and Give Legal Protection to the Rights
of Gay Couples,
 For an example of Amnesty International’s criticisms, see Human Rights and Sexual Orientation and Gender Identity, available at http://web.amnesty.org/library/index/engACT790012004?Open&of=eng-200. For an example of Human Rights Watch’s criticisms, see http://hrw.org/doc/?t=lgbt. For examples of the UN’s criticisms, see supra notes 7-11.
 Practices associated with women’s rights are too inconsistent for women’s human rights to be deemed customary international law. See Jo Lynn Southard, Protecting Women’s Human Rights under the Convention on the Elimination of all Forms of Discrimination Against Women, 8 Pace Int’l L. Rev. 1 (1996) (noting that, although the opinio juris component of international law may be fulfilled, practice is too inconsistent to render women’s rights to be part of customary international law.).
 See Statute of the International Court of Justice, Art 38(1)(d), 59 Stat 1055, 1060, Treaty Serial No. 933 (1945) (listing subsidiary sources of law); Diane Wood, Diffusion and Focus in International Law Scholarship, 1 Chicago J. Int’l L. 141, 143 (2000) (“Public international lawyers point to Article 38 of the Statute of the International Court of Justice (“ICJ”) for a definitive list of . . . source[s of international law]”).
 See Laurence Helfer and
Alice M. Miller, Sexual Orientation and
Human Rights: Toward a
 Although the ECHR is a regional court, many states outside of
 Marcus Gee, Taiwan Has Good
Reason to be Proud, Globe & Mail,
 Toonen v.
 Sanders, Human Rights and Sexual Orientation, at 20 (cited in note 4).
 Toonen v.
 See Peter G. Danchin, U.S. Unilateralism and the International Protection of Religious Freedom, 41 Columbia J. Transnat’l L. 33, 71 (2002) (noting the “the intrinsically non-democratic and counter-majoritarian nature of the concept of human rights”); Sionaidh Douglas-Scott, The Hatefulness of Protected Speech: A Comparison of the American and European Approaches, 7 William & Mary Bill Rts. J. 305, 341 (1999) (“The general theory of human rights, however, is premised on the necessity of placing restraints on the majority at times”).
 Andrew Huang, Film:
Homosexual, and Happy, Far Eastern
 See Caroline Hong, Gender Fairness Bill is Made Law,
 See Brian Hsu, Military Police to Accept Gays,
 Martin Regg Cohn,
 Jason Blatt, Taiwan Considers Law to Allow Asia’s First Gay Marriages, South China Morning Post, Oct. 28, 2003, at 7.
 Marcus Gee, Taiwan Has Good Reason to be Proud, Globe & Mail, Nov. 07, 2003, at A25.
 Tim Cribb, Quest for Equality,
 See Shamdasani, Activist to Challenge Legal Age for Gay Sex,
 There is a plethora of legal literature categorizing sexual conduct as a form of expression. For an example of a pioneering article on this concept, see David Cole and William S. Eskridge, Jr., From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29 Harvard Civil Rights-Civil Liberties L. Rev. 319, 325 (1994) (“[S]ex is intrinsically communicative and may express a wide range of emotions—love, desire, power, dependency, even rage or hatred. Indeed, the communicative power of sex is often unmatched by other forms of communication”).
 Home Affairs Bureau, Submission to the LegCo Panel on Home Affairs Subcommittee to Study Discrimination on the Ground of Sexual Orientation, Paper No. CB(2)981-00-01(01), at para. 9 (2001) (“A group believes it is unfair to homosexuals as Section 118C of the Crimes Ordinance (CO) stipulates that it is unlawful for a man to commit buggery with another man under the age of 21. In fact, section 118D of the CO also prohibits a man from committing buggery with a girl under the age of 21. Indeed, the offence of buggery applies to both heterosexual and homosexual activities . . . . The legislative provisions are not discriminatory against homosexuals.”).
 See infra Section II.B. For background on indirect discrimination, see Rosemary C. Hunter and Elaine W. Shoben, Disparate Impact Discrimination: American Oddity or Internationally Accepted Concept?, 19 Berkeley J. Employment & Labor L. 108, 123 (1998) (“Thus in international law . . . discrimination may be found in the disparate impact of policies or practices on a protected group. State parties to international conventions against discrimination therefore undertake to ensure the absence of disparate impact discrimination against their citizens.”).
 See id. (failing to address situations involving an underaged male and an of-age female).
 App. No. 25186/94 (European Commission on Human Rights 1997).
 The European Commission on Human Rights existed until 1999, after which it was abolished so that all of the Council of Europe’s cases proceed straight to the European Court of Human Rights.
 See L. & V. v. Austria, unpublished opinion available at http://www.hrw.org/lgbt/pdf/l_and_v_v_austria.pdf (2003).
 See supra note 34.
 See generally Interpol, http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/Default.asp (providing summary of national laws regarding sexual offenses against Children); International Lesbian & Gay Association, World Legal Survey, online at http://www.ilga.info/Information/Legal_survey/Asia_Pacific/1world_legal_survey__asia_pacific.htm (same).
 Interpol, http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/csaChina.asp
 See, e.g., Home Affairs Bureau, Submission to the LegCo Panel on Home Affairs Subcommittee to Study Discrimination on the Ground of Sexual Orientataion, LC Paper No. CB(2)786/01-02(01) (2001), at para. 5 (arguing that same-sex partners of civil servants are not eligible for government medical benefits because the benefits system “will continue to be guided by the prevailing marriage system in Hong Kong”); id. at para. 3 (arguing that same-sex partners may not apply for public housing as a family unit because applicants “are required to produce relevend documentary proof such as a marriage certificate.”).
 See Sex Discrimination Ordinance (CAP 480); Disability Discrimination Ordinance (CAP 487); Family Status Discrimination Ordinance (CAP 527).
 Instead of proposing anti-discrimination legislation to protect
sexual minorities, the
 Bill of Rights Ordinance, art. 22 (CAP 383).
 See Basic Law of the
 See supra Section I.A.i.
 Hong Kong Home Affairs Bureau, Equal Opportunities: Sexual Orientation, online at http://www.hab.gov.hk/en/policy_responsibilities/the_rights_of_the_individuals/sexual1.htm.
 Hong Kong Home Affairs Bureau, Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation, online at http://www.hab.gov.hk/en/policy_responsibilities/the_rights_of_the_individuals/sexual.htm.
 See, e.g., Employment Ordinance s. 9 (CAP 57). Section 9 lists grounds on which employers may terminate their employees. It is unclear whether an employee’s sexual orientation may be deemed “misconduct” or “any other ground . . . at common law”’ for termination.
 See Hong Kong Health, Welfare, and Food Bureau, Bill’s Committee on Human Organ Transplant (Amendment) Bill 2001: Administration’s Response, LC Paper No. CB(2)2719/03-04(01) (2004).
 See Young v Australia, UN Human Rights Committee, U.N. Doc.
CCPR/C/78/941/2000; Toonen v.
 See CESCR General Comment No. 14, U.N. Doc. E/C.12/2000/4 at para. 18 (2000) (stating that Article 2(2) of the ICESCR proscribes discrimination on the basis of sexual orientation).
 Treaty Establishing the European Community (“Treaty of
 European Council Directive 2000/78/EC, printed in the Official Journal of the European Union , series L, issue 303, p. 16.
 See Canadian Human Rights Act, Revised Statutes of Canada, ch. H-6, ss. 2, 3(1) (1985, amended 1996). For provincial proscriptions of discrimination on the ground of sexual orientation, see Human Rights Code, Revised Statutes of British Columbia, ch. 210, ss. 7-11, 13-14 (1996); Human Rights Code, Revised Statutes of Manitoba, ch. H175, s. 9(2)(h) (1987); Human Rights Code, Revised Statutes of New Brunswick, ch. H-11, ss. 3-7 (1992); Human Rights Code, Revised Statutes of Newfoundland, ch. H-14, ss. 6-9, 12, 14 (1990, amended 1997); Human Rights Act, Revised Statutes of Nova Scotia, ch. 214, s. 5(1)(n) (1989, amended 1991); Human Rights Code, Revised Statutes of Ontario, ch. H.19, ss. 1-3, 5-6 (1990); Human Rights Act, Revised Statutes of Prince Edward Island, ch. H-12, s. 1(1)(d) (1988, amended 1998); Charte des Droits et Libertés de la Personne, Revised Statutes of Québec, ch. C-12, s. 10 (1977); Saskatchewan Human Rights Code, Statutes of Saskatchewan, ch. S-24.1, ss.9-19 (1979, amended 1993); Human Rights Act, Statutes of the Yukon Territory, ch. 3, ss. 6, 34 (1987).
 See, e.g. Lei no. 10.948
 See Namibian Labour Act,
s. 107(1) (1992) (including “sexual orientation” as a ground for protection);
Constitution of the
 See Israeli Equal Opportunities in Employment Act (1988, amended 1992) (including neti’ya minit, i.e., sexual orientation, as a grounds for protection).
 See Caroline Hong, Gender Fairness Bill is Made Law,
 See supra notes 47-50.
 Korean National Human Rights Commission Act, art. 30(2) (2001).
 Office of the New York State Attorney General, Sexual Orientation Non-Discrimination Act, online at http://www.oag.state.ny.us/civilrights/sonda_brochure.html. SONDA was codified by inserting “sexual
orientation” as a grounds for protection in various sections of the New York
State Human Rights Law. See
 Office of the New York State Attorney General, Sexual Orientation Non-Discrimination Act (cited in note 102).
 New York City Commission on Human Rights, Discrimination Is Illegal in New York City, online at
 Office of the New York State Attorney General, Sexual Orientation Non-Discrimination Act (cited in note 102) (comparing remedies under SONDA to remedies under municipal laws).
 Home Affairs Bureau, Submission to the LegCo Panel on Home Affairs Subcommittee to Study Discrimination on the Ground of Sexual Orientataion, LC Paper No. CB(2)786/01-02(01) (2001), at para. 3.
 As of October 2004, 225 out of the
 Private employers can administer benefits to their employees’
domestic partners, even if
 Bonnie Miller Rubin, Gays,
Lesbians View Registry as Progress,
 See, e.g., the City of
 See, e.g., Young v Australia, UN Human Rights
Committee, UN Doc. CCPR/C/78/D/941/2000 (2000) (holding that a man was entitled
to a government pension because of his status as the same-sex partner of an
Australian veteran; noting that, pursuant to Article 26 of the ICCPR, Australia
had no legitimate reason for denying government benefits, which were offered to
heterosexual partners, from same-sex domestic partners.); Joslin v.
 See supra note 76.
 Office of the New York City Clerk, Domestic Partnerships, online at http://nycmarriagebureau.com/about/domesticpartnership.html.
 New York City Local Law 2004/027 (“Equal Benefits Law”), codified in New York City Administrative Code, tit. 6 (2004). See also Pride Agenda, Q&A on the City Council’s Equal Benefits Bill, online at http://www.prideagenda.org/briefingpackets/ebb/faq.html.
 Eric Wrubel, Gay Divorcee:
 International Gay & Lesbian Human Rights Commission, Where You Can Marry: Global Summary of Registered Partnership, Domestic Partnership, and Marriage Laws (2003), online at http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=91.
 Agence France Press, First
Adoption by Swedish Gay Couples Recognised,
 Hazeldean & Betz, Years Behind: What the United States Must Learn about Immigration Law and Same-Sex Couples, 30 Human Rights 17 (2003) (describing the Danish Registered Partnership Act).
 Joslin v.
 1994 E.U.O.J. (C 61) 40 (Official Journal of the European Communities).
 Joslin v.
 See id (Lallah and Scheinin concurring) (stating that, unless a state’s laws allow for “recogni[tion of] same-sex partnership with consequences similar to or identical with those of marriage . . . [the] denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination prohibited under article 26 [the ICCPR’s anti-discrimination provision]”).
 Human Rights Watch, Non-Discrimination in Civil Marriage: Perspectives from International Human Rights Law and Practice, online at http://www.hrw.org/backgrounder/lgbt/civil-marriage.htm (“The right to marry is a basic human right. Straightforward application of international protections against unequal treatment dictate that gay and lesbian couples, no less than heterosexual couples, should enjoy the right: there is no civil marriage “exception” to the reach of international anti-discrimination law.”).
 See supra Section I.A.ii.
 See New Zealand Press Association, Looking at the Legality of Same-Sex Unions Worldwide, Oct. 6, 2004, available on Westlaw at 2004 WL 93694818 (noting that Belgium, the Netherlands, numerous Canadian provinces, Massachusetts in the United States, and Rio Grande do Sul in Brazil have all legalized same-sex marriage); Doug Struck, Canada Court Clears Way fo Gay Marriage Law, Dec. 10, 2004, at 4 (noting that “[c]ourts in 6 of 10 Canadian provinces have upheld same-sex unions.”).
 Id (“Gay marriage is expected to be legal in
 See notes 47-50 (discussing
 See Human Rights Watch, “Non-Discrimination
in Civil Marriage: Perspectives from International Human Rights Law and
Practice,” online at http://www.hrw.org/backgrounder/lgbt/civil-marriage.htm (reporting
on the status of same-sex marriage in
 Hazeldean & Betz, 30 Human Rights 17 (cited in note 125).
 Hazeldean & Betz, 30 Human Rights 17 (cited in note 125).
 In a government report, the Hong Kong Special Administrative Region