The Call for Dignity Jurisprudence in Protecting the Rights of Sexual Minorities in Hong Kong

To avoid what Lord Wilberforce once referenced as “the austerity of tabulated legalism” when protecting the rights of sexual minorities, the discernment of dignity jurisprudence – as the teleological foundation that accepts, respects, and celebrates individual self-worthiness – is of vital importance for anchoring any anti-discrimination analysis.

National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15 was a seminal judgment by the Constitutional Court of South Africa on the constitutionality of certain sodomy offences (the Sodomy Judgment). In striking down the impugned offences, the Court rendered its decision within the context of what was then a new constitutional order of South Africa, signifying a break from the apartheid past that had institutionalised discrimination based on race as well as sexual orientation.

Sachs J opened his Honor’s formidable concurring judgment with these words:

“107. Only in the most technical sense is this a case about who may penetrate whom where. At a practical and symbolical level it is about the status, moral citizenship and sense of self-worth of a significant section of the community. At a more general and conceptual level, it concerns the nature of the open, democratic and pluralistic society, … the connection between equality and dignity, and the … question of the meaning of the right to be different in the open and democratic society contemplated by the Constitution”.

Ma CJHC (as the Chief Justice then was) expressly associated his Lordship with the above passage at para. 29(3) of the judgment in Leung v Secretary for Justice [2006] HKCA 360. What Sachs J wisely revealed was his Honor’s concern with not only the mechanistic legal analysis of discrimination, but also the τέλος – the Aristotle expression that Judge Serghides of the European Court of Human Rights referenced in Merabishvili v Georgia [GC] no. 72508/13, standing for the telos, or the true purpose – behind such otherwise mechanical exercise. This higher engagement with the true purpose, involving self-worth and dignity, is necessary in order to avoid demeaning the rights of members of a minority as mere objects awaiting processing by the legal machinery of the State, as Sachs J said at para. 112 of the same judgment that “[t]he rights must fit the people, not the people the rights. This requires looking at rights and their violations from a persons-centered rather than a formula-based position, and analyzing them contextually rather than abstractly”.

And by the same token, only in the most technical sense was the recent landmark judgment of the Hong Kong Court of Final Appeal in Director of Immigration v QT [2018] HKCFA 28 (the QT Judgment) a case about who may enter Hong Kong with whom on what status. Without any doubt, the QT Judgment helpfully clarified and detailed the legal steps upon which one would need to embark for the purposes of first fitting an aggrieved individual into one of three categories of discrimination, and second scrutinising the soundness of any purported justification by way of the four-stage proportionality formula. However, and with the greatest respect, such symphony of sophisticated technical maneuvers of fitting people into rights might have rendered the telos behind such legal gymnastics perhaps somewhat disguised and hence a little difficult to discern. Again, as Sachs J stated in the Sodomy Judgment:

“121. [The Court] could have based invalidity [of the impugned offences] simply on the different treatment accorded by the law to anal intercourse according to whether the partner was male or female. Instead, the judgment has with appropriate sensitivity for the way anti-gay prejudice has impinged on the dignity of members of the gay community, focused on the manner in which the anti-sodomy laws have reinforced systemic disadvantage both of a practical and a spiritual nature. Furthermore, it has done so not by adopting the viewpoint of the so-called reasonable lawmaker who accepts as objective all the prejudices of heterosexual society as incorporated into the laws in question, but by responding to the request of the applicants to look at the matter from the perspective of those whose lives and sense of self-worth are affected by the measures”.

What then seems to be the most scarring systemic disadvantages that have assaulted the dignity of sexual minorities from their perspective? Invisibility was one response that Professor Edwin Cameron (as Cameron J of the Constitutional Court of South Africa then was) convincingly put forward in Sexual Orientation and the Constitution: A Test Case for Human Rights 110 South African Law Journal 450 (1993), being an integral part of the advocacy effort that ultimately led to the present-day Constitution of South Africa expressly protecting sexual minorities against discrimination. According to Professor Cameron, and in contrast to victimisation based on race or gender, because the “defining characteristics [of sexual minorities] … is not discernable or externally visible in the same way that race and gender usually are”, such invisibility “provides a potent stimulus for homosexual men and women to closet their orientation from outside – or to repress it totally” and, perhaps more insidiously, “makes it possible for others to deny that gays or lesbians exist or that they are a significant or necessary part of society” (at 459).

Expressing full agreement on this point with Professor Cameron, and before concluding at para. 130 of the Sodomy Judgment that “although the Constitution itself cannot destroy homophobic prejudice, it can require the elimination of public institutions which are based on and perpetuate such prejudice [treating homosexuals] as failed heterosexuals”, Sachs J made the following additional observations on the relationship between invisibility and indignity:

“127. [H]istory and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group.

128. Gays constitute a distinct though invisible section of the community that has been treated not only with disrespect or condescension but with disapproval and revulsion; they are not generally obvious as a group, pressurised by society and the law to remain invisible; their identifying characteristic combines all the anxieties produced by sexuality with all the alienating effects resulting from difference; and they are seen as especially contagious or prone to corrupting others. None of these factors applies to other groups traditionally subject to discrimination, such as people of color or women, each of whom, of course, have had to suffer their own specific forms of oppression”.

And the telos of this line of analysis became clear in the very next paragraph:

“129. At the heart of equality jurisprudence is the rescuing of people from a caste-like status and putting an end to their being treated as lesser human beings because they belong to a particular group. The indignity and subordinate status may flow from institutionally imposed exclusion from the mainstream of society …”.

Similarly in Canada, Vriend v Alberta 1 SCR 493 was a case concerning whether the exclusion of sexual orientation as a protected ground in the Individual’s Rights Protection Act of Alberta constituted a violation of Section 15(1) of the Canadian Charter of Rights and Freedom guaranteeing equality before the law, the latter of which being materially similar to Article 22 under Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). Cory J of the Supreme Court of Canada said the following about the relationship between invisibility and the injurious effect of the provincial law:

“101. The exclusion sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. The effect of that message on gays and lesbians is one whose significance cannot be underestimated. As a practical matter, it tells them that they have no protection from discrimination on the basis of their sexual orientation. Deprived of any legal redress they must accept and live in constant fear of discrimination. These are burdens which are not imposed on heterosexuals.

102. Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates the view that gays and lesbians are less worthy of protection as individuals in Canada’s society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination”.

In addition to invisibility, a second systemic disadvantage that discriminatory laws and policies have continued to reinforce is the stereotypical treatment of sexualising sexual minorities to the point of portraying them as incapable of stable relationships and family lives. Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17 – a case involving the constitutionality of the prohibition against granting permanent residency to a same-sex partner in South Africa – made this point clear:

“49. At the heart of these stereotypes whether expressly articulated or not, lie misconceptions based on the fact that the sexual orientation of lesbians and gays is such that they have an erotic and emotional affinity for persons of the same sex and may give physical sexual expression thereto with same-sex partners:

‘There are two predominant narratives that circulate within [our] society that help to explain the difficulty that lesbians and gays face in adopting children and establishing families. First, there is the story of lesbians and gays that centers on their sexuality. Whether because of disgust, confusion, or ignorance about homosexuality, lesbian and gay sexuality dominates the discourse of not only same-sex adoption, but all lesbian and gay issues. The classification of lesbians and gays as ‘exclusively sexual beings’ stands in stark contrast to the perception of heterosexual parents as ‘people who, along with many other activities in their lives, occasionally engage in sex.’ Through this narrative, lesbians and gays are reduced to one-dimensional creatures, defined by their sex and sexuality.’

Such false classifications must be rejected” (the internal quote extracted from Social Norms and Judicial Decision making: Examining the Role of Narratives in Same-Sex Adoption Cases by Timothy E Lin 99 Columbia Law Review 739 (1999) at 741-2).

Likewise, Lady Hale NPJ in Ghaidan v Godin-Mendoza [2004] UKHL 30 – a case involving whether the ambit of a “surviving spouse” under the Rent Act 1977 extended to the survivor of a homosexual couple – also sought to break the stereotype:

“132. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the Convention [being materially similar to the Hong Kong Bill of Rights Ordinance (Cap 383)], as has often been said, is respect for human dignity and human freedom: see Pretty v United Kingdom (2002) 35 EHRR 1, 37, §65 ….

142. Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can. Sexual 'orientation' defines the sort of person with whom one wishes to have sexual relations. It requires another person to express itself. Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but also the sense of belonging to one another which is the essence of being a couple. And many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children who for many people go to make a family. In this, people of homosexual orientation are no different from people of heterosexual orientation”.

Stepping back for a moment and looking at the matter in the round, one may be able to discern that the common thread running through the dicta above, arising from different societies and across different continents, is the deep judicial empathy – not sympathy – for the targeted vulnerability, and the entrenched indignity, that sexual minorities have historically experienced from “the sting of past and continuing discrimination … [that has] degenerated into a denial of humanity” (per Sachs J at para. 50 of Minister of Home Affairs v Fourie [2005] ZACC 19, a judgment of the Constitutional Court of South Africa on gay marriages). Of course none of the above is meant to detract from the fact that the QT Judgment indeed represented a remarkable development in the rights of sexual minorities in Hong Kong, providing good guidance for assessing future cases. Nevertheless, judicial wisdoms from other jurisdictions that have traversed this path of protecting sexual minorities do suggest that dignity jurisprudence – articulated through accurately poignant portraits on the social reality reflecting how certain impugned laws and policies reinforce, or produce further, harmful prejudices against the self-worth of sexual minorities – must be the teleological anchor in this branch of Hong Kong jurisprudence. This is especially so, if Hong Kong is ever to reach “a stage of maturity in which recognition of the dignity and innate worth of every member of society is not a matter of reluctant concession but is one of easy acceptance” (per Heher J in the first-instance judgment of National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (6) BCLR 726 (w)). In this regard, one may wish to note that Ma CJ, in his Lordship’s International Rule of Law Lecture to the Bar Council of England and Wales in 2015, already expressly stated, by reference to South African constitutional jurisprudence, “dignity, rights, and liberty” as constituting one of the two pillars of the rule of law, with judicial independence being the other.

Finally, and as a concluding remark, one must not forget that the impact of dignity jurisprudence, which has seen significant development through overseas cases involving the rights of sexual minorities, transcends far beyond that province alone. Every person, regardless of sexual orientation, ages, and may very well experience ageism one day. Law v Canada [1999] 1 SCR 497 was a case involving alleged reversed ageism, and presented the Supreme Court of Canada with the opportunity to synthesise a number of its previous judgments concerning the position of dignity jurisprudence in discrimination analysis. As such, Iacobucci J confronted the question “What is human dignity?” head-on, and hence what his Honor said, with whom McLachlin NPJ agreed, is perhaps apposite:

“53. What is human dignity? … Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances, which do not relate to individual needs, capacities, or merits. It is enhanced by laws, which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalised, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

54. The equality guarantee in Section 15(1) of the Charter must be understood and applied in light of the above understanding of its purpose. The overriding concern with protecting and promoting human dignity in the sense just described infuses all elements of the discrimination analysis”.

Jurisdictions: 

Freshfields Bruckhaus Deringer, Knowledge Lawyer

Peter is a solicitor practicing in general civil litigation. Peter is a former member of the Hong Kong Bar Association and holds his doctorate in Economics from the University of Texas at Austin. He is also active in Freshfields’ pro bono matters in relation to asylum and LGBT issues.