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SEXUAL ORIENTATION AND HUMAN
RIGHTS IN
A
report issued by the
INTRODUCTION
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”).[1]
In the ten years since, sexual orientation rights[2]
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
Over
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
Legal
recognition of human rights often develops over time. Recognition of women’s rights is an example.[6] 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;[7] the Committee on Economic, Social, and Cultural Rights has stated that the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”) protects sexual minorities;[8] the Committee on the Rights of the Child has stated that the Convention on the Rights of the Child (“CRC”) protects sexual minorities;[9] 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;[10] and the Committee on Torture has stated that the Convention on Torture protects sexual minorities.[11] 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.”[12] 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.[13]
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.[14] Ad hoc working groups established by the UN Human Rights Commission address sexual orientation rights.[15] The UN High Commissioner on Refugees has also declared that sexual minorities are protected by the Convention on Refugees.[16]
In
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
unique to—
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.”[24] 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.[25]
Advancement
of sexual orientation rights is not confined to
In
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.[30] 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
The
developments described above are not merely anecdotal; they illustrate that
According
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.[32] 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[33]
and the European Court of Human Rights[34]—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
Some
groups in
The
UN Human Rights committee has denounced the idea that culture trumps sexual
orientation rights. Toonen v. Australia[36]
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
activist, challenged
Not
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.[39] 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
Developments in
Again,
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
in
II. BASELESS CRIMINALIZATION
It
is commendable that
A. Hong Kong’s Buggery Laws
The
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.[56] 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.[57] 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,[58] men who engage in underage buggery are liable to life imprisonment.[59] 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.[60]
A
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.[61] 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.[62]
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.[63] Contrarily, in buggery cases involving a female under 21, the female is never liable.[64] 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.[65]
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.[66] 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.[67] 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.[68]
B. International and Comparative Law
On
two levels, international law affects the legality of
Discriminatory
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.
The
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,[69]
the European Commission on Human Rights[70]
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
consent in
Finally, from a
comparative standpoint,
C. Hong
Kong Must Reform
In
the light of human rights considerations,
In
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.
This
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
The
A. Background:
Discrimination in
At
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.”[80] 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.[81] Therefore, it does not protect against discrimination in the private sector.
In
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
Administrative Region”[82]
and the ICCPR proscribes discrimination on the basis of sexual orientation.[83] 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.”[84] 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.”[85] 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.”[86] 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;