Preventing discrimination versus upholding the status of marriage
Article 37 of the Hong Kong 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." This protection is understood to be limited to marriage between heterosexual monogamous couples. This has led to a debate on equality of treatment of homosexual couples in the context of rights and privileges borne out of marriage. The principal issue is that treating same-sex relationships differently to heterosexual relationships is discriminatory.
The recent case of Leung Chun Kwong v Secretary for the Civil Service and Another  HKCU 1802, the Court of Appeal dealt with this difficult issue.
The case involved an applicant, a Senior Immigration Officer. The applicant had married his same-sex partner in New Zealand. Upon returning to Hong Kong, he claimed spousal benefits available to civil servants.
The Secretary for Civil Service, however, took the view that the applicant's same-sex marriage was not a marriage within the meaning of Hong Kong law and accordingly, spousal medical and dental benefits offered to civil servants did not extend to the applicant's partner ("Benefits Decision").
Similarly, the Commissioner of Inland Revenue informed the applicant that he was not entitled to elect for joint assessment with his partner because their same-sex marriage did not fall within the meaning of marriage in the Inland Revenue Ordinance ("Tax Decision").
Court of First Instance Decision
In the first instance decision, Justice Chow held that the Benefits Decision unlawfully discriminated against the applicant by reason of his sexual orientation as there was a difference in treatment accorded to the applicant on account of his same-sex marriage. On the other hand, Justice Chow held that the Tax Decision was correct in that the Commissioner had based his decision on the provisions of the Inland Revenue Ordinance.
Court of Appeal Decision
The Secretary for Civil Service appealed the Benefits Decision and the applicant cross-appealed the Tax Decision. The central issue arising from the appeal was whether the Benefits Decision and/or Tax Decision constituted discrimination against the applicant on account of his sexual orientation.
In making its determination, the Court of Appeal applied the test established in the recent Court of Appeal case of QT v Director of Immigration  5 HKLRD 166 (a case which was subsequently appealed to the Court of Final Appeal, although that appeal had not been decided when Leung Chun Kwong was heard by the Court of Appeal).
According to the Court of Appeal decision in the QT case, if a benefit is a core right or obligation unique to marriage, no justification is required for its lawfulness. Where the differential treatment falls outside such core rights, and if the reason for the difference is, for example, sexual orientation, the right to equality is engaged and there must be a justification for the differential treatment. If, however, after evaluating all the circumstances, the court has a doubt as to whether the relevant right or obligation is a core right or obligation or not, the court must act cautiously by proceeding to consider justification.
The Court of Appeal in Leung Chun Kwong found that there is a strong case for saying that spousal benefits (as contractual employment benefits) are not a core right as they cannot be said to be unique to marriage by their nature. They are simply part of a contractual remuneration package and no more. However, the court said that the issue was not plain and obvious, and it would therefore be cautious and apply the justification test. The right to elect for joint assessment, however, was found to be a core right unique to marriage as it flowed from the special status of marriage. The justification test was therefore required.
Applying the justification test to both decisions, the Court of Appeal found that upholding the status of marriage was a "sufficient and indeed very weighty justification for both the Benefits Decision and the Tax Decision".
Accordingly, the court held that there was no discrimination against the applicant on account of his sexual orientation.
The deprival of spousal benefits to a same-sex couple was held not to be discriminatory in this case, and differential behaviour in this regard was held to be justified by the need to protect and not undermine the status of marriage.
In determining the appeal in the QT case, the Court of Final Appeal held that the justification test as established in the Court of Appeal (and as used in this case) should not be followed and that the correct approach is to examine every alleged case of discrimination to see if the difference in treatment can be justified. The Court of Final Appeal decision means QT is a landmark case, which will affect how future cases on discrimination are decided and which potentially paves the way for changes in the treatment of same-sex relationships in Hong Kong.
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