The latest chair of the Equal Opportunities Commission (“EOC”) talks to Hong Kong Lawyer about discrimination, which accounts for most of the EOC’s concerns. He also touches on gender identity, a sensitive topic that has been recently brought to the fore in a landmark Court of Final Appeal (“CFA”) case.
An orthopaedic surgeon by profession, it is hard not to think of Dr. York Chow taking to his current role as something akin to patient care. The parallels cannot be ignored; if the musculoskeletal system literally forms the backbone of a person, the provision of equal opportunities coupled with zero or minimal discrimination must form a crucial part of Hong Kong’s societal spine.
“I knew my predecessor, Mr. Lam (Woon-Kwong), very well. He had strong feelings for Hong Kong and strong infinity for the community and made a lot of sacrifices,” says Dr. Chow, who was appointed to the EOC chairmanship on 1 April 2013.
“When I look at the current community situation, I feel that safeguarding Hong Kong people against discrimination and ensuring equal opportunities is a very important responsibility, particularly with how diverse our society is.”
Among other things, he was referring to Hong Kong being home to ethnic minorities from South Asian countries such as the Philippines, Indonesia, India, and Nepal, as well as societal misperceptions and misgivings over mainland Chinese who live in or visit Hong Kong.
Born and raised here, Dr. Chow, who was also once Hong Kong’s Secretary for Food and Health, takes great pride in this city, despite having a career that has taken him all over the world. A big part of this stems from his childhood experiences.
“At school, I was amongst a group of students of different abilities, and was given the opportunity to participate in various community activities, which developed my own confidence,” he explains.
“I want to see the same thing happen and continue to happen for the youngsters in Hong Kong, and maintain more values in this society. This is the main reason why I believe I can also contribute as the chairperson of the EOC.”
Race Discrimination Ordinance (“RDO”)
One of the EOC’s main tasks is to consolidate the six main domains of the RDO under one umbrella (ie bringing together education; employment; provision of goods and services; use of premises; election; and joining of societies and association) so as to strengthen each of the anti-discrimination legislation.
The challenge comes in harmonising various definitions under each separate piece of legislation, says Dr. Chow.
“I think a lot of academic lawyers are very supportive of this and we will eventually have to address the issue like how many common law jurisdictions have done so, such as the Equality Act in the UK”, explains Dr. Chow.
“We have talked to stakeholders about the proposal and surveys have been done. We are in an internal review process right now and we plan to put this to public consultation in mid-2014.”
Plans include streamlining the four anti-discriminatory ordinances in Hong Kong – Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, and Race Discrimination Ordinance – alongside the six domains, so that they can be applied seamlessly across such laws.
For example, Dr. Chow explains, the concept of universal design, whereby a building needs to be fully accessible to wheelchair users or the blind, should be classed as basic needs, rather than a building requirement to be implemented on a case-by-case basis.
Like most cosmopolitan cities it is unsurprising that there is racial discrimination in Hong Kong – despite the city calling itself “Asia’s World City”. What is surprising is that the RDO was only passed in 2008, with a limited scope of protection, Dr. Chow says. Plus the law, as with many other laws, has to constantly keep up social trends that produce discrimination in various ways be it racial, cultural, or dogmatic.
“People discriminate out of ignorance. It doesn’t mean that they are bad but we need to educate them and it is important and that we have this tolerance and at the same time attitude to help others rather than discriminate against them,” Dr. Chow continues.
However, despite receiving the brunt of discrimination, minority groupings do not complain much, partly because it is not in the tradition or culture for ethnic peoples to do so, Dr. Chow says. Other types of minorities such as those concerning gender and sexuality also keep to themselves more often than not, he says, since it is thought that speaking out would make them stand out and hence attract even more unwanted attention.
“So there may be more cases that require our attention than we know of, and we try to encourage such minorities to step out and voice their concerns,” says the EOC chairman.
For now, most of the complaints received by the EOC are from locals. Out of around 16,000 complaints made a year, Dr. Chow elaborates, 700-900 turn into bona fide cases. Over half of them concern the disabled, such as their rights to have access to transportation, as well as equal treatment in the workplace. Also, many complaints have been made concerning women with special family status such as pregnancy. For example, when they are released or displaced after returning to work from maternity leave.
“We believe that apart from just handling the complaints, and trying to reach compromise, compensation or even trying to sue the employers, we should provide education and advocacy for both parties instead,” adds Chow.
In recent years, the EOC has also received an increasing number of complaints concerning mainland Chinese. Over the years, social issues concerning Chinese nationals range from the more severe (eg pregnant mainland Chinese giving birth in Hong Kong, hence straining resources for local hospitals), to the mundane (eg eating and drinking on the Mass Transit Railway).
Purely from a technical perspective, there is no ordinance that protects Chinese nationals partly as they share national and ethnic identities with native Hong Kongers. And even though there have been suggestions that such legislation should be enacted – based on factors such as place of origin, demarcation, length of stay in Hong Kong, etc – Dr. Chow disagrees.
“I think we need to look at the background of people’s behavior and interaction than rather deciding whether a law is actually applicable. It is a complex thing,” he says.
“But I am concerned with people promoting the difference between local and non-local. It hurts our society once you make that distinction. A lot of Hong Kong people actually come from the mainland over the last century, so trying to go into those details is rather risky.”
“Law is important as a baseline of tolerance, but it cannot be the whole solution.”
The plight of sexual minorities in Hong Kong has garnered attention over past year, not least because of landmark CFA case W v Registrar of Marriages  3 HKLRD 90, whereby the court ruled that a transgender woman may marry her boyfriend. The CFA has also given the government 12 months to amend current laws to this effect.
In addition, the government has also started to review and endorse a revised legislation that provides adequate protection for homosexuals in Hong Kong, though no timetable has been set.
Experts say sexual minorities, particularly in East Asia, face challenges rooted in existing conservative cultures and beliefs such as Confucianism and Taoism. As a result, this group is often afraid of “coming out”, especially at the workplace, as they are afraid of repercussions that might lead to even more discrimination.
This will continue till a law is made to better protect sexual minorities, Dr. Chow says.
“For those who are against the legislation, the common view is that firstly, people will have to be very careful about what they say and hence lose their freedom of speech; and secondly, as some argue, this may become a form of reversed discrimination, whereby certain protection and privilege might then be given to sexual minorities,” he continues.
“I don’t think this is true at all.”
In any case, Dr. Chow says, the EOC is looking to propose legislation that bans discrimination against all forms of sexual orientation, heterosexual, homosexual or bisexual, to be fair.
“We don’t want people to be labeled one way or another,” Dr. Chow adds.
Legislation aside, there is also a need to boost current awareness concerning sexual minorities. From a medical point of view, for example, Dr. Chow believes that more research and consultation are needed to decide how gender should be better identified, such as at which point, and with what kind of surgery is a person seen to have legally changed his gender.
“Then there is the mental state, whereby a man may think and feel like a woman, or vice-versa, despite how they look and what kind of surgery they have undergone,” Dr. Chow continues.
“This is considered a very important type of disorder that needs treatment… All these factors have to be considered by the public and the medical sector if we are to better decide when a person legally changes his gender.”
The W case has forced the government to rewrite Hong Kong’s Marriage Law, marking a change in Hong Kong history. W, a transsexual, was denied the right to marry her boyfriend on the grounds that they cannot conceive. However, under Section 20(1)(d) of the Matrimonial Causes Ordinance and Section 40 of the Marriage Ordinance, W is considered a woman within the meaning and therefore entitled to marry. This led to the question of whether a transsexual person who has not undergone full gender reassignment surgery should qualify as well for marriage. Otherwise, this may be in breach of Hong Kong’s Basic Law that safeguards each individual’s right to marry.
One reference for Hong Kong lies in the UK system, Dr. Chow says, where one criterion for deciding a person’s gender is to assess him/her for two years to see if he/she is living a lifestyle of the opposite sex.
And like most issues, such sexual minorities should identify and deal with this topic as early as reasonably possible to avoid complications related to spouses and children, he adds.
“People who change their gender after the age of 40 are likely to leave behind more problems,” Dr. Chow says.
“I have been talking to the Hospital Authority and they are now planning on a gender identification unit to give more support to this group. We should take advantage of the CFA’s decision to visit these issues and come up with a policy and legislation appropriate for Hong Kong.”
Topics involving the issue of race, culture, political views, gender and sexual orientation are often unresolved. Therefore to prevent discrimination from being passed on to the next generation, it is crucial that children are educated at school, since this is their first exposure to the general community.
“These days we have schools that are favoured by some ethnic minorities but this should not be the case,” Dr. Chow notes.
“Schools should have people from different ethnicity and this will teach children respect for people with different backgrounds. This is a very important part of education. With the support services that we have, along with those provided by many non-government organisations, we can lead children out of their comfort zones where they can learn to be more inclusive.”
Also, the EOC chairman feels that society may be more litigious today as more people are aware of their rights, so much so that many tend to overreact. One way of solving this, he thinks, especially in a financial hub like Hong Kong, is to point out the opportunity costs of not being more tolerant.
“If you look at the whole world, if you look at globalisation, if you do not adapt to this environment, you will fall back,” Dr. Chow says.
Ultimately, he concludes, a city like Hong Kong needs to “accommodate many opinions from different peoples”.
“We need to analyse each opinion rationally and try to validate ourselves objectively and humbly,” says Dr. Chow.
“Patience and tolerance is key.”
By Sara Lau