Hong Kong: court decision on benefits for same-sex spouses a step forward for human rights, says the ICJ

The High Court of the Hong Kong Special Administrative Region decided to effectively grant the same spousal benefits to a civil servant in a same-sex marriage that the Government provides to the spouses of other married civil servants whose marriages are to persons of the opposite gender.

The High Court held in the case Leung Cheung Kwong v. Secretary for the Civil Service, et. al, that the denial of spousal benefits under the Civil Service Regulations to same-sex couples legally married under foreign laws amounts to unlawful discrimination based on sexual orientation.

“This decision confirms the critical role that the judiciary can and should play in upholding human rights and combatting discrimination based on sexual orientation and gender identity,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia.

Mr. Leung Chun Kwong, the applicant in the case, is a Chinese national and a permanent resident of the Hong Kong Special Administrative Region. In 2005 he met Mr Adams, a national of New Zealand, and they later decided to marry.

In light of the fact that the law in Hong Kong did not allow for same-sex marriage, they married in New Zealand, where the law makes provision for such marriages.

Eventually, Mr. Leung applied for and was denied: a) spousal benefits that the Government provides to the spouses of other married civil servants whose marriages are to persons of the opposite gender; and b) to have his tax liability jointly assessed with that of Mr. Adams, as a married couple.

He then brought judicial review proceedings before the High Court challenging both decisions on a number of grounds, including that the said denials discriminated against him based on his sexual orientation.

Judge Anderson Chow said he was unable to see how the denial of such benefits to legally married same-sex couples would serve to protect “the traditional family”.

The ICJ had been granted leave by the Court to intervene in the case.

The amicus brief submitted by the ICJ described the European Court of Human Rights’ approach to the issues at stake in this case, including, in particular, that the prohibition of discrimination under the European Convention on Human Rights duly covers questions related to sexual orientation, and that if the reasons advanced for a difference in treatment were based solely on a person’s sexual orientation, this would amount to discrimination under the Convention.

The High Court was also presented with the question of whether the marriage of a same-sex couple legally entered into under foreign laws may also constitute “marriage” for the purposes of Hong Kong’s Inland Revenue Ordinance (IRO).

In this instance, however, the Court held that to construe “marriage” under the IRO as including same-sex marriages would run counter to the meaning of this term under Hong Kong laws.

In any event, the High Court further pointed out that the refusal by the Commissioner of Inland Revenue to assess the tax liability of Mr. Leung jointly with that of his spouse, as a married couple, did not cause any prejudice to them as the joint assessment would have made no difference to their total tax liability.

In the circumstances, therefore, the Commissioner’s refusal did not engage the right to equality.

Gil said: “The issue of the equal right of same-sex couples to marriage in Hong Kong was not ultimately at stake in this case. However, we hope that future judicial decisions will continue to push forward the protection of all human rights for all people in Hong Kong.”

Hong Kong-ICJ Amicus-Advocacy-Legal submissions-2017-ENG (ICJ Amicus, in PDF)

Hong Kong-High Court Judgment-Advocacy-2017 ENG (Judgment, in PDF)

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