Hong Kong court overturns landmark benefits ruling for gay civil servants

By on 10/06/2018 | Updated on 04/02/2022
LGBT activists mount a demonstration in Chater Square, Hong Kong (Image courtesy: istolethetv).

A Hong Kong court has overturned a landmark judgment that civil servants in same-sex marriages are entitled to the same benefits as their heterosexual colleagues.

The Court of Appeal ruled last week that the Basic Law – Hong Kong’s mini-constitution – favours heterosexual marriage and the government is right to protect the “status of marriage” through its policy on spousal benefits for civil servants.

Senior immigration officer Angus Leung Chun-kwong filed a judicial review against the government in 2015 after it refused medical and dental benefits for his husband Scott Adams. The couple were married in New Zealand in 2014; same-sex marriages are not legally recognised in Hong Kong.

In April last year, the Court of First Instance ruled in Leung’s favour, finding that the government had indirectly discriminated against him based on his sexual orientation. Hong Kong’s lesbian, gay, bisexual and transgender community hailed the ruling as a rare victory.

Holding the line against equality

But in a written judgment released earlier this month, Mr Justice Jeremy Poon Shiu-chor said the government “is the custodian of Hong Kong’s prevailing socio-moral values” and is “perfectly entitled” to follow such values when formulating its policy on spousal benefits.

“By granting same-sex married couples, who are unmarried both under Hong Kong laws and according to the prevailing socio-moral values, access to spousal benefits, which are unique to marriage, the very status of marriage would diminish significantly in the eyes of the public at large,” he said.

“Indeed, the public at large might well think that it is a recognition of same-sex marriage by the back door.”

Poon added that a court might well reach a different conclusion in future, if societal views on same-sex marriage were to change.

The Court of Appeal upheld the lower court’s parallel ruling that the couple were not eligible for a joint tax assessment.

Hong Kong’s Civil Service Bureau welcomed the rulings.

One last chance?

But Leung said in a statement that he and his husband were extremely disappointed and were considering taking the case to the Court of Final Appeal, Hong Kong’s highest court.

“It’s a huge step back for equality in Hong Kong,” he said. “We are not asking for special treatment. We just want to live our life fairly and with dignity.”

Gay pro-democracy legislator Raymond Chan Chi-chuen said the judgment was deeply disappointing and conservative, and the fundamental rights of minorities should never be solely based on the majority view.

Article 37 of Hong Kong’s Basic Law states that “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”.

About Liz Heron

Liz Heron is a journalist based in London. She worked on daily newspapers for more than 16 years as an education correspondent, section editor and general news reporter. She was Education Editor of the South China Morning Post in Hong Kong and has contributed to a wide range of British media including The Independent, The Guardian and the BBC.

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