LGBT rights in Hong Kong
|LGBT rights in Hong Kong|
|Same-sex sexual intercourse legal status||
Female homosexuality: Always legal
age of consent equalized in 2006
|Gender identity/expression||Change of sex recognised for persons who have undergone sex reassignment surgery, though the "sex at birth" is not altered|
|Discrimination protections||The Hong Kong Bill of Rights Ordinance (Cap. 383) protects individuals against sexual orientation discrimination from the Government and public authorities of the Hong Kong Special Administrative Region|
|None; though marriages and civil partnerships of same-sex couples will soon be recognised for the purpose of issuing a dependant visa|
|"Marriage" is defined as the unions of one man and one woman. A transgender person who has undergone sex reassignment surgery may marry a partner of the opposite sex|
|Adoption||Same-sex couples are not permitted to jointly adopt children|
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After the 1967 decriminalisation of homosexuality in the United Kingdom, there were moves to undertake a similar reform in Hong Kong. Governor Murray MacLehose privately supported gay rights but he and others felt that the local community would not support decriminalisation.
As a British colony Hong Kong's criminal laws against male homosexual acts were initially a reflection of British law, with a maximum sentence of life imprisonment. During the 1970s and 1980s, there was a public debate about whether or not to reform the law in line with human rights principles. As a result, in 1991 the Legislative Council agreed to decriminalise private, adult, non-commercial and consensual homosexual relations.
However, an unequal age of consent was established, 21 for gay men and 16 for heterosexuals, with the law remaining silent about lesbianism. LGBT rights groups lobbied the Legislative Council to equalise the age of consent law, but were told that the legal inequality was necessary to protect youth and preserve tradition. A lawsuit was initiated to challenge the unequal age of consent in court.
In 2005, Justice Hartmann found that the unequal age of consent was unconstitutional under the Bill of Rights Ordinance, violating the right to equality. The ruling was upheld by the Hong Kong Court of Appeal; thus, since 2006, there is an equal age of consent of 16, for both heterosexual and homosexual sex.
The Hong Kong Bill of Rights Ordinance 1991 prohibits discrimination on a variety of grounds, including "other status". In the case of Leung TC William Roy v. Secretary for Justice (2005), this has been interpreted to include sexual orientation. However, the Bill of Rights only applies to government-sponsored discrimination and not the private sector. Since the 1990s LGBT rights groups have lobbied the Legislative Council to enact civil rights laws that include sexual orientation without success.
In 1993, former legislator Anna Wu proposed an Equal Opportunities Bill through a private member's bill to outlaw discrimination on a variety of grounds, including sex, disability, age, race, and sexuality. Her effort didn't yield any result until 1995 when equal opportunities law was enacted. However, sexuality was not included in the passage of the bill.
Currently, there is no law against discrimination on the ground of sexual orientation in Hong Kong.
Political opposition tends to come from social conservatives, often with evangelical Christian ties, who view homosexuality and cross-dressing as signs of immorality. For example, after the court ruled against the unequal age of consent, Hong Kong leader Donald Tsang, a devout Catholic, publicly opposed the court's decision and fought for an appeal until 2006. Otherwise most political parties and individual politicians tend to avoid making public statements in favor of LGBT rights, although this has slowly begun to change.
Cross-dressing per se is not illegal. Hong Kong law allows change in legal documents such as the identity card, and passport, but does not allow the birth certificate to be changed. Such change requires sex reassignment surgery, which includes the removal of reproductive organs, effectively rendering the person sterile in exchange for legal recognition of gender identity.
The Court of Final Appeal of Hong Kong ruled that a transsexual woman has the right to marry her boyfriend in her affirmed gender. The ruling was made on 13 May 2013.
On 16 September 2013 Eliana Rubashkyn was discriminated and sexually abused by Hong Kong airport customs officers, forcing international organizations like United Nations and Hong Kong NGOs to provide assistance as a refugee becoming a stateless person, she endureed an invasive body search for more than nine hours.
Recognition of same-sex relationships
Same-sex marriage or civil unions are not currently recognised in Hong Kong.
In 2013, Hong Kong's High Court ruled that a transgender woman can marry her boyfriend and told the government that they had one year to draft a law that allows for post-operation transsexual or transgender individuals to marry. In spring of 2014, it was announced that though the law had not been finished, transgender citizens could start marrying in July. Some rights activists have expressed their discontent with the provision that a person must be fully operated to receive a marriage license. On 17 July 2014, it was announced that transgender citizens could marry and that the law will be finished after the summer recess. Some have stated that the delay of the final draft is a positive thing since the current law has "lots of holes and ambiguity".
A British woman (referred to as QT) sued the Immigration Department after it declined to recognise her UK civil partnership and refused to grant her a dependant visa. In February 2015, a judge agreed that the plaintiff had been discriminated against and moved the case forward to the Hong Kong High Court. The court heard the case on 14 May 2015. After prolonged deliberation, it dismissed the case in March 2016. The woman appealed to the Court of Appeal, which agreed to hear the case on 15 and 16 June 2017. The appeal was led by prominent human rights barrister Dinah Rose QC.
On 25 September 2017, the Court of Appeal reversed the High Court's dismissal and ruled in favour of the woman, finding that her partner (who works in the city) should be granted a spousal visa. While the legal definition of marriage was not challenged in the appeal, chief judge Andrew Cheung wrote that “times have changed and an increasing number of people are no longer prepared to accept the status quo without critical thought”. His Lordship added that the immigration department failed to justify the "indirect discrimination on account of sexual orientation that QT suffers" and that "excluding a foreign worker’s lawfully married (albeit same-sex) spouse or civil partner ... to join the worker is, quite obviously, counter-productive to attracting the worker to come to or remain in Hong Kong". The court ordered the woman and the Department of Immigration to work together on an agreement and submit it to the court within 28 days.
The Immigration Department appealed the ruling to the Court of Final Appeal. The court handed down its ruling on 4 July 2018, finding in favour of the plaintiff and mandating immigration authorities to grant same-sex partners spousal visas that were previously only available only to heterosexual couples. The panel of judges, led by Chief Justice Geoffrey Ma Tao-li, held that the “policy [of not granting a visa] is counterproductive and plainly not rationally connected to advancing [any] ‘talent’ aim” and rejected the immigration director’s argument that civil union partnerships differed from marriage, saying it was based on a “shaky foundation [and]...hardly satisfactory”. The government stated it respected the court's ruling and would study it in detail.
Civil Partnership and British Nationals (Overseas)
Neither same sex marriage nor civil partnership registered inside or outside Hong Kong is recognised by the Law of Hong Kong. However, many Hong Kong residents are also a British National (Overseas). By virtue of the passage of Civil Partnership (Registration Abroad and Certificates) Order 2005 in the UK, all British nationals, including British Nationals (Overseas), are allowed to register civil partnerships with a limited number of British consulates or embassies abroad. Thus, LGBT Hong Kong couples, with either one of the couple having a British national status, enjoy the right to register civil partnerships with British consulates in 22 countries.
Arranging a civil partnership registration with a British consulate will generally take at least a month and must be done in person in the country where the consulate is located. Those whose British National (Overseas) passports have expired or who no longer hold a valid passport need to apply for a renewal before arranging a civil partnership registration with a British consulate.
The British Consulate-General in Hong Kong refrains from providing such service to British nationals because UK law requires the Hong Kong government's objection to them to be respected. Thus, British nationals are able to apply for a same-sex civil partnership ceremony with British consulates or embassies in the following 22 countries.
|North America||Costa Rica||Guatemala|
LGBT rights movement in Hong Kong
In the early 1990s, the first two LGBT rights groups, HORIZONS and the Ten Percent Club, were established. Today, several organizations, most notably Rainbow Action and Tongzhi Culture Society exist to campaign for LGBT rights and to organize various public educational and social events.
The Constitutional and Mainland Affairs Bureau established in 2005, The Gender Identity and Sexual Orientation Unit, to enhance the equal opportunities for people of different sexual orientation and transgender people.
Currently, as of August 2012, The Constitutional and Mainland Affairs Bureau have been sponsoring a series of Public Service Announcement broadcast through radio station about the need of equal treatment when employing anyone who is homosexual.
Along with several gay nightclubs, LGBT pride festivals occur yearly as well as other social events including film festivals. On each International Day Against Homophobia, a procession is held like in many European cities. The first IDAHO procession was held in 2005. Political involvement has also become more common when comparing to the colonial era. Prominent Legislators and Councillors attend IDAHO procession and gay pride nowadays to show solidarity with the LGBT community.
As the government cannot discriminate against LGBT person as stipulated in the Bills of rights, gay people can have access to a wide range of services provided by the Hong Kong government like any other citizens. For example, when applying for non-contribution base Job Seeker's Allowance (Comprehensive Social Security Allowance), one must satisfy the means test component. Whether ones satisfy the mean test component, the Social Welfare Department takes into account the income of family members living together irrespective of their sexual orientation.
Representation in the media
Since the 1990s, several Hong Kong films have had LGBT characters or themes in them. Television programming tended to avoid LGBT characters or themes, until recently.
In 2006, RTHK broadcast a television film called Gay Lovers, which received criticism from social conservatives for, "encouraging" people to become gay. In 2007, the Broadcasting Authority ruled that the RTHK-produced programme "Gay Lovers" was "unfair, partial and biased towards homosexuality, and having the effect of promoting the acceptance of homosexual marriage." On 5 May 2008 Justice Michael Hartmann overturned the ruling of the Broadcasting Authority that "Gay Lovers"'s discussion on same sex marriage was deemed to have breached broadcasting guidelines for not including anti-gay views.
As the society is becoming more open and accepting of the LGBT community, there are more artists coming out than in the last 20 years.
In September, 2012, newly elected lawmaker Ray Chan Chi-chuen (陳志全), a former radio and TV host, revealed to Oriental Daily that he is gay, making him the first openly gay legislator in Greater China. Local media coverage of his coming out as gay was largely positive.
On Nov 10, 2012, Denise Ho (何韻詩) announced her sexual orientation on stage at the "Dare to Love" event during the Hong Kong Pride Parade 2012. She called herself "tongzhi," a Chinese slang word for gay. She is the first mainstream female singer in Hong Kong to come out.
In a 2013 poll conducted by the University of Hong Kong, 33.3% of respondents supported same-sex marriage for same-sex couples, with 43% being opposed. Another poll conducted by the Liberal Party showed that 29% supported same-sex marriage while 59% were against it.
A survey conducted by the University of Hong Kong in 2014 showed that 27% supported same-sex marriage while 12% said that they somewhat agreed. At the same time, the same poll found out that 74% of the respondents agreed that same-sex couples should have the same or some rights enjoyed by heterosexual couples.
The Hong Kong College of Psychiatrists
On 15 November 2011, the Hong Kong College of Psychiatrists, as a licensing body of professional psychiatrists in Hong Kong, published an announcement stating that homosexuality is not an illness and there is no scientifically proven evidence to support the attempts to change one's sexual orientation. Until February 2012, the announcement has not been uploaded onto the College's website or published in any professional journals; it is, however, available in electronic pdf format upon request. The Hong Kong College of Psychiatrists is the very first professional authority in Asia that ever explicitly and publicly opines their professional standing on issues regarding homosexuality and treatments altering one's sexual orientation.
|“||The Hong Kong College of Psychiatrists opines that homosexuality is not a psychiatric disorder...The Hong Kong College of Psychiatrists adheres firmly to the practice of scientifically proven and evidence-based treatment. Psychiatric treatments have to be provided according to well established principles and practice available at the time. There is, at present, no sound scientific and clinical evidence supporting the benefits of attempts to alter sexual orientation.||”|
The Hong Kong Psychological Society
In light of the absence of practice guidelines for lesbians, gays, and bisexual individuals for psychologists in Hong Kong, the Hong Kong Psychological Society, as both a learned society and a professional association, formed a work group in July 2011 to tackle the problem. On 1 August 2012, the Society published a position paper titled, Position Paper for Psychologists Working with Lesbians, Gays, and Bisexual (LGB) Individuals. There are 11 major guidelines in this position paper:
|Psychologists understand that homosexuality and bisexuality are not mental illnesses.|
|Psychologists understand that homosexual, bisexual, and heterosexual attractions, feelings, and behavior constitute normal variants of human sexuality.|
|Psychologists understand that efforts to change sexual orientation are not proven to be effective or harmless.|
|When using and disseminating information on sexual orientation, psychologists fully and accurately represent research findings that are based on rigorous scientific research design and are careful to avoid any possible misuse or misrepresentation of these findings.|
|Psychologists understand the societal stigma imposed on LGB individuals and the effects on their lives.|
|Psychologists always act to ensure the public is accurately informed about sexual orientation and LGB-related issues.|
|Psychologists are aware of their own attitudes, beliefs and knowledge about sexual orientation and LGB individuals’ lives and experiences. They do not impose personal beliefs or standards about sexual orientation when they are offering professional services.|
|Psychologists understand the distinction between sexual orientation and gender identity and expression. Stereotypical gender conformity or non-conformity is not necessarily indicative of one’s sexual orientation.|
|Psychologists understand the heterogeneity among LGB individuals (e.g., sex, gender, age, socioeconomic status, physical and mental abilities, race, marital status, parental status, and religious beliefs).|
|Psychologists are respectful of LGB individuals’ choice to disclose or not to disclose their sexual orientation.|
|Psychologists advocate for an inclusive society and the promotion of equal opportunity. this includes advocating for the elimination of homophobia, biphobia, discrimination, bullying, harassment, or any form of stigmatization towards LGB individuals.|
Hong Kong Association of Doctors in Clinical Psychology (HKADCP)
HKADCP's Code of Ethics ensures the HKADCP Registered Clinical Psychologists avoid discrimination in all forms and are sensitive to power differentials in dealing with current and former clients, employers, employees, and peers by striving to protect individuals who may be in a position of lower power. They are particularly sensitive to the needs of underprivileged and otherwise vulnerable individuals.
Civil Service vacancies
The Government, at all levels, is not allowed to have any unjustified differential treatments on ground of sexual orientation as the direct results of a series of high-profile court cases. Particularly, in Secretary for Justice v. Yau Yuk Lung Zigo, the Court of Final Appeal ruled that one's sexual orientation is a protected status against discrimination under the provisions of Articles 25 and 39 of the Basic Law and Articles 1 and 22 of the Bill of Rights Ordinance. Because of such interpretation from the judiciary, the Government has the responsibility to actively ensure all its policies, decisions, and actions are free of sexual orientation discrimination. It should be aware, however, that the Basic Law and the Bill of Rights Ordinance only have effects on the Government, its agencies, and its representatives but not private companies. As such, general notes of civil service vacancies advertisements include the assertion of equal opportunities employer: "As an Equal Opportunities Employer, the Government is committed to eliminating discrimination in employment. The vacancy advertised is open to all applicants meeting the basic entry requirement irrespective of their disability, sex, marital status, pregnancy, age, family status, sexual orientation and race." In addition, current government employees who feel discriminated or suffer from unfair treatments because of their sexual orientation should seek advice from their lawyers and may file civil actions against the Government in court.
Since homosexuality is still a sensitive taboo issue in Hong Kong, discrimination based on sexual orientation in the corporate sector is pervasive. LGBT employees are often victims of various levels of discrimination or harassment. Most companies do not include sexual orientation in their diversity and inclusion policies. And, with no legislation protecting LGBT employees, the situation is far from being resolved satisfactorily. This is also true for multinational corporations. Although a lot of US- or Europe-based companies in Hong Kong may have non-discrimination policies protecting their LGBT employees in their home countries, most of them do not adopt such practices in Hong Kong. Such a phenomenon makes many local employees and even expatriates vulnerable targets for discrimination.
For many years, leading advocate groups such as Community Business, have worked to promote and advance the extension of non-discrimination policies in the corporate sector for LGBT minorities. Only a limited number of multinational companies have explicitly embraced such policies, namely Goldman Sachs and IBM. Only a handful of local and China-based companies have extended non-discrimination protection to LGBT employees, including blue-chip stock companies.
The following table shows sexual orientation non-discrimination practices of these Hong Kong companies as of 3 March 2012.
|Same-sex sexual activity legal|
|Equal age of consent|
|Anti-discrimination laws in employment|
|Anti-discrimination laws in the provision of goods and services|
|Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)|
|Recognition of same-sex couples in taxation (see paragraph 5)|
|Recognition of same-sex couples|
|Step-child adoption by same-sex couples|
|Joint adoption by same-sex couples|
|Gays and lesbians allowed to serve openly in the military||Not concerned / |
|Right to change legal gender|
|Access to IVF for lesbians|
|Commercial surrogacy for gay male couples|
|MSMs allowed to donate blood|
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- Gay woman challenges Hong Kong in landmark trial
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- "British lesbian wins right to spousal visa in landmark Hong Kong case". Reuters. 25 September 2017.
- "Hong Kong gay rights: British lesbian wins spousal visa case". BBC News. 25 September 2017.
- "'Giant step forward for equality' in Hong Kong as same-sex couples win right to spousal visas in Court of Final Appeal". South China Morning Post. 4 July 2018.
- Civil Partnership (Registration Abroad and Certificates) Order 2005 in the UK
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