Rights of LGBT People under Hong Kong Law: QT v Director of Immigration and Beyond

On 25 September 2017, the Court of Appeal handed down its decision in QT v Director of Immigration CACV 117/2016, in what has been lauded as a landmark decision for recognising the rights of same-sex couples in Hong Kong who are married (or have entered into marriage-like relationships, such as civil partnerships) under the laws of a foreign jurisdiction.

The QT Case

This case involved an application for a dependent’s visa by QT, the same-sex partner of her sponsor, SS, who had been admitted in Hong Kong under a working visa. QT and SS are in a same-sex civil partnership recognised under the Civil Partnership Act 2004 in the United Kingdom.

The Director of Immigration (the “Director”) rejected QT’s application on the basis that, under the prevailing dependent visa policy (the “Policy”), only the spouse (or an unmarried child under the age of 18) of a sponsor may apply for a dependent visa, and that the term “spouse” was limited to the concept of marriage as defined under Hong Kong law. This interpretation of the Policy thereby excludes couples such as QT and SS, whose same-sex marriage (or marriage-like relationship) has been legalised under the laws of another jurisdiction, but would not be permissible under Hong Kong’s Marriage Ordinance.

QT sought judicial review of the decision, but her application was dismissed in the Court of First Instance. On appeal, the Court of Appeal held that the Director’s interpretation of the Policy breached Art.25 of the Basic Law, which provides that “[a]ll Hong Kong residents shall be equal before the law”. It followed that the Policy would be unconstitutional on the basis that it discriminates on the ground of sexual orientation, unless the difference in treatment could be objectively justified.

The Court of Appeal concluded that the Director of Immigration had failed to satisfy the court that the difference in treatment was objectively justified, taking into account its discriminatory effects, and thus allowed QT’s appeal.

No Challenge to the Definition of Marriage

An important fact to be noted at the outset is that the Court of Appeal’s judgment, as well as the submissions of the appellant, did not raise any challenge to the definition of marriage as set out under Hong Kong law. Under s. 40 of Hong Kong’s Marriage Ordinance, marriage is one involving “the voluntary union for life of one man and one woman to the exclusion of all others” or, in other words, a heterosexual and monogamous marriage.

The institution of marriage (as far as it extends to heterosexual and monogamous marriages) is also protected in Art. 37 of the Basic Law, which guarantees “the freedom of marriage of Hong Kong residents”. Article 19(2) of the Hong Kong Bill of Rights also extends such protection to (at the very least) heterosexual couples, stating that “the right of men and women of marriageable age to marry and to found a family shall be recognized”.

In coming to the decision in QT, the Court of Appeal rejected the argument that requiring the Director to treat same-sex couples in marriage-like relationships equally to heterosexual married couples would be (at least indirectly) requiring the Director to recognise same-sex marriage as being valid in Hong Kong through the back door. Here, the Court turned to the Director of Immigration’s treatment of visa applicants in polygamous marriages, where the sponsor is typically permitted to select one of their spouses to bring to Hong Kong on a dependent visa. The Court noted that, not only did this contradict the Director’s case that he must give effect to the definition of marriage under Hong Kong law in applying the Policy, this existing practice has not lead to the conclusion that the Director of Immigration has recognised the validity of such polygamous marriages.

Also unchallenged in the QT case was the notion that marriage not only confers a special legal status on the married couple, but also carries with it a group of rights and obligations that are unique to a relationship of marriage. Under the laws of Hong Kong, there are many areas in which married couples enjoy special rights and privileges, as well as obligations, which unmarried couples do not. Obvious examples cited by the Court are laws relating to divorce, adoption and inheritance, which the Court considered to be closely connected with marriage.

However, the Court of Appeal considered that not all rights may be so obviously connected to marriage, and in the case of rights which are not obviously connected to marriage, any differential treatment on the basis of marital status must satisfy the justification test. The Court considered that this two-pronged approach in: (1) recognising that certain rights and obligations are inherent to marriage; and (2) applying the justification test only to those rights and obligations which are not inherent to marriage; shall be adequate as a check against any potential floodgates.

The QT Case and the Leung Chun Kwong Case

The QT case comes closely after another recent win for LGBT rights in the Hong Kong courts. Earlier this year, the Court of First Instance ruled in favour of a civil servant in a same-sex marriage in Leung Chun Kwong v Secretary for the Civil Service and Anor HCAL 258/2015. In this case, the Court held that the decision by the Secretary for the Civil Service (the “Secretary”) to reject the applicant’s request to change his marital status in light of his same-sex marriage in New Zealand, thereby refusing his husband the benefits which extended to the applicant’s “family” under the applicable Civil Service Regulations, was discriminatory.

In this case, the Secretary raised similar arguments to the Director in the QT case, including that the differential treatment was not on the basis of sexual orientation, but rather solely on marital status. In both cases, the Courts held that the differential treatment was at least indirectly discriminatory on the basis of sexual orientation, as an unmarried homosexual couple could not gain access to the rights or benefits in question by getting married under the laws of Hong Kong, whereas an unmarried heterosexual couple could.

Both the Director and the Secretary also argued that the bright line test was justified because it gives effect to the definition of marriage enshrined in Hong Kong law. However, in both cases, the Courts rejected these arguments, on the basis that there was no legal requirement mandating the application of the legal definition of marriage under Hong Kong law in the relevant circumstances. The differential treatment (which constituted at least indirect discrimination on the grounds of sexual orientation) therefore had not been justified.

However, the same reasoning was held not to apply in relation to the second limb of the application in the Leung Chun Kwong case, which arose in relation to the eligibility of the applicant to elect for joint assessment of taxes with his same-sex spouse under the Inland Revenue Ordinance. Here, the decision under judicial review was whether the applicant’s same-sex marriage was a “marriage” for the purposes of the Inland Revenue Ordinance (and not whether it should be “treated” as such). The Court therefore found that the decision under judicial review was solely a question of statutory construction, and that the right to equality was not engaged. When solely considering this question of statutory construction, it cannot be held that the word “marriage” used in the Inland Revenue Ordinance can be construed as including same-sex marriage in light of both the existing common law understanding and the constitutional interpretation of the use of the word “marriage” in the laws of Hong Kong. The Court also considered that the term “marriage” as used in the Inland Revenue Ordinance must be read in light of the definitions of the words “husband” and “wife” contained in the same Ordinance.

LGBT Rights in Hong Kong Courts

The QT and Leung Chun Kwong cases mark the latest chapter in a series of cases in which the Hong Kong courts have paved the way for the recognition of rights of sexual minorities in Hong Kong. These include cases where the courts have declared that certain statutory provisions were discriminatory and unconstitutional, such as the offences relating to homosexual buggery in Leung T C William Roy v Secretary for Justice CACV 317/2005.

In recent years, the courts have also considered not only cases concerning the rights of homosexuals, but also the rights of other sexual minority groups.

In 2013, the Court of Final Appeal handed down its groundbreaking decision in the case of W v Registrar of Marriages FACV 4/2012, which concerned the right of a post-operative transgender woman to marry a man under the laws of Hong Kong. Prior to this decision, both the Court of First Instance and the Court of Appeal had rejected W’s application, chiefly on the basis of the English case of Corbett v Corbett [1971] P 83. The background of W and Corbett are similar, relating to individuals (W and April Ashley, respectively) who were born male but had from a young age self-identified as female and subsequently underwent sex reassignment surgery. Whilst in many respects, the reassigned gender had been recognised by the state (including, for W, undergoing sex reassignment surgery in a public hospital managed by the Hospital Authority, and the subsequent amendment of her Hong Kong identity card reflecting her reassigned gender), both W and April Ashley learned that they were not recognised as female for the purposes of the application of matrimonial law. The determination of gender in that context relied solely on biological factors including chromosomes, which cannot be altered by surgery.

However, taking into account the rights enshrined in the Basic Law and the Hong Kong Bill of Rights, as well as case law from the UK and EU since Corbett, the Court of Final Appeal rejected the Corbett criteria of considering solely biological factors fixed at birth in determining gender. In doing so, the Court of Final Appeal permitted post-operative transgender individuals to marry in their reassigned gender.

LGBT Rights in Hong Kong Legislation

In contrast to the position of the courts, fewer steps have been taken in the legislation of Hong Kong in protecting or promoting the rights of sexual minorities. Two commonly cited examples of legislation that are “inclusive” of same-sex couples include:

  1. The Domestic Violence Ordinance, which was amended in 2009 to explicitly extend protection from domestic violence to same-sex cohabitating couples, and was then renamed as the Domestic and Cohabitation Relationships Violence Ordinance.
  2. The Electronic Health Record Sharing System Ordinance enacted in 2015, which allows cohabitants (whether or not related by marriage, thereby including same-sex cohabiting couples) to act as a “substitute decision-maker” for patients who are unable to make decisions, such as if they were in a coma.

However, there remain various important areas of substantive rights relating to sexual minorities that the legislature has not addressed. Importantly, neither the Basic Law nor the Bill of Rights create rights or causes of action against private individuals or entities and, in their present form, none of the legislation prohibiting discrimination (including in the workplace) provide protection on the ground of sexual orientation. Accordingly, sexual minorities are left to rely for such protection on their employers complying with a non-binding Code of Practice for employers issued by the Government in 1998, or otherwise adopting internal policies and procedures which go further in addressing the needs of sexual minorities than the legislation currently requires.

Part of the reasoning behind this inertia in the legislature has until now been attributed to divided public opinion on whether legal protections for sexual minorities are desirable or required in Hong Kong. However, with increasingly changing attitudes towards sexual minorities, there is a growing movement demanding for legislative change.

In January 2016, the Equal Opportunities Commission published the findings of the Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity (SOGI) and Intersex Status (the “Study”). The Study found that discrimination on the grounds of sexual orientation was commonplace, and that 55.7 percent of persons surveyed (and 91.8 percent of respondents aged 18–24) were supportive of legal protection against discrimination on the grounds of sexual orientation. The findings of the Study have been submitted to the Government for consideration and, in March 2017 the Equal Opportunities Commission issued a joint statement with the Gender Research Centre of the Chinese University of Hong Kong calling on the Government to launch a consultation on introducing legislation against discrimination on the grounds of sexual orientation as soon as possible.

Similarly, in its report to the Secretary for Constitutional and Mainland Affairs in December 2015, the Advisory Group on Eliminating Discrimination against Sexual Minorities (the “Advisory Group”) recommended five strategies and measures for addressing issues faced by sexual minorities. These included (among other things) a charter on non-discrimination to be drawn up by the Government for voluntary adoption by employers, schools and others and a review of legislative and non-legislative measures in other jurisdictions to inform future consultation on measures to eliminate discrimination on the grounds of sexual orientation and gender identity.

This month, in a paper tabled before the Legislative Council Panel on Constitutional Affairs, the Constitutional and Mainland Affairs Bureau stated that the Government is committed to fostering the culture and values of inclusiveness and mutual respect and promoting equal opportunities for people of different sexual orientation and gender identity, and outlined the measures it was taking to follow up on the recommendations of the Advisory Group. In particular, it stated that it expected to consult with stakeholders on the proposed content of a charter on non-discrimination of sexual minorities within this year, and to complete its study on legislative and non-legislative measures adopted in other jurisdictions, by the end of this year.

Separately, in June 2017, in response to the Court of Final Appeal’s comments in W v Registrar of Marriages, the Government released a consultation paper on gender recognition, seeking public comment on the recognition of transgender persons.

Whether any legislation is introduced as a result of the above actions, and whether such legislation suitably addresses the rights of transgender persons and other sexual minorities, remains to be seen but it appears at least that steps are being taken in the right direction. 

Jurisdictions: 

Herbert Smith Freehills, Partner

William Hallatt has over a decade of experience in advising on financial regulatory matters, covering both contentious and non-contentious issues. His clients comprise investment banks, wholesale and retail banks and other financial institutions, including private wealth managers, hedge funds, investment managers and private equity firms. Mr. Hallatt has broad experience in advising clients in Hong Kong, Europe and the UK on areas including governance structures, systems and controls and conduct of business issues. He also advises extensively on the application and impact of Hong Kong market misconduct provisions and the UK/European market abuse regimes, together with anti-money laundering and terrorist financing requirements.

Herbert Smith Freehills, Associate

Howard is a competition law specialist based in Hong Kong, with experience in Hong Kong, EU and UK competition law, as well as financial services regulation in Hong Kong. He joined Herbert Smith Freehills in 2014 and has a LLM in International Commercial Law from University College London and a LLB from the University of Warwick.