LGBTI (Lesbian, Gay, Bisexual and Transgendered and Intersexed) communities worldwide are fighting for their rights. Hong Kong has not been spared the fight. Hong Kong may think itself progressive in Asia, but may be falling behind. Taiwan’s Parliament is discussing a Bill to legalise gay marriage. China allowed its first case of transsexual marriage a decade ago.
By Calvin Lam. Assitance from Marcus Yen and Athena Chiu.
Prompted by a recent Court order (the famous W case), the Government is now examining gender recognition issues. Sexual orientation anti-discrimination law, which almost made its way twice into legislation in the 1990s, was pushed back to the consultation phase. Without much changes in the laws since 1991, many believe Hong Kong is long overdue to reform its laws to reflect modern values.
Hong Kong’s economy has been ranked as the freest economy for two decades, but comparing its property rights to the development of LGBTI rights, LGBTI rights have failed to keep up. The local gay community considers the society as a whole very conservative and it is true that many people cling to traditional values. Just this month, The Economist covered the shocking “conversion therapy” homosexuals in China have attended. The reason they take the therapies may help to explain why Hong Kong is seen as conservative. Confucianism holds substantial sway over Chinese communities and many young people are pressured by their families to marry in the traditional way and to provide an heir.
Speaking to HT, Liberal Party District Councillor and Spokesperson of the Party’s alliance against gay marriage (自由黨反對同性婚姻大聯盟) Mr Peter Shiu (邵家輝) sees the traditional marriage and values are red lines that can not be crossed. LGBTI rights are clearly stepping into the Party’s red zone. He respects LGBTI people and believes that adults have the right to choose their way of life but his tolerance ends when any policies to enhance LGBTI rights are put forward. His concern lies with children, saying children are particularly vulnerable to “wrong” messages and legalising LGBTI rights is, in a way, encouraging LGBTI lifestyles to spread.
Mr Shiu’s comment fail to resonate with Dr York Chow (周一嶽), Chairperson of the Equal Opportunities Commission (EOC). In an exclusive with HT, he does not believe recognising LGBTI rights will amount to encouragement, “you can’t force any people to turn their sexual orientation around. This just would not happen.” For example, The Netherlands, one of the most liberal countries in the world, legalised gay marriage in 2001. Having been introduced in the system for several years, Dr Chow says that the Dutch society has not changed significantly, but became a more open-minded society. Furthermore, the divorce rate of homosexual marriages is in effect lower than the heterosexual marriages in Netherlands.
The other factor lending to the relatively slow progress of LGBTI rights in Hong Kong is democracy. The openly gay LegCo member Mr Raymond Chan (陳志全) believes there would be a higher chance to pass legislation concerning LGBTI rights if Hong Kong had direct elections, universal suffrage and the absence of the separate voting (functional v. geographical) in LegCo. He points particularly at Ms Cyd Ho’s failed motion in 2012, blocked by the functional constituency legislators, to urge the Government to launch consultation on the sexual orientation anti-discrimination legislation.
Mr Chan also blames the Government and accuses the senior officials for their lack of knowledge on LGBTI issues and the lacking initiative to learn. He claims that the Chief Secretary Mrs Carrie Lam (林鄭月娥) once mentioned to him that the sexual orientation anti-discrimination legislation will not be a priority for the Government. Agenda items like housing and poverty alleviation will continue to come before LGBTI rights. He recalls a bullying-suicide tragedy that happened in Taiwan which has prompted the country to enact the Gender Equity Education Act and he hopes Hong Kong can take a lesson from across the straits.
Taiwan’s practices to uphold LGBTI rights have been frequently referred to by the local LGBTI community as a model that Hong Kong can follow, especially given the two places began at more or less the same position on LGBTI development. Chairman of the Pink Alliance (粉紅同盟) Mr John Erni presents his personal view to explain why Hong Kong is falling behind Taiwan in recognising LGBTI rights. The end of the martial law in Taiwan in 1987 has seen waves of liberalisation and democratisation on the island. “LGBTI people took advantage of that opening but in Hong Kong, the opening is very very slow and very recent.” The opening helped Taiwan to progress into a more democratic society but in Hong Kong, it is very different. Mr Erni considers the transition of Hong Kong in 1997 merely a change in the dominant government – from Britain to China. “So, Hong Kong people never felt the same flourishing of democracy and freedom, of course not.” The divergent historical backgrounds give rise to the different LGBTI developments of the two places sharing similar cultures. “You don’t feel the freedom, of course you lag behind.”
“I think we should have zero tolerance on any discrimination of any kind. And sexual orientation is one of them.”
Dr York Chow, Chairperson of EOC
Discrimination looms large
Global LGBTI campaigns might be successful, but reaching the conclusion that LGBTI communities are powerful might not be necessarily true. The Society for Truth and Light (明光社) is a Christian organisation and one of the most vocal opposition groups against LGBTI. This Christian group claims that LGBTI community is powerful and discrimination against them is not serious. The General Secretary of Truth and Light Mr Choi Chi Sum (蔡志森) argues that celebrities and politicians who came out in recent years have received no negative feedback. However, speaking for equality and to fully embrace it can be two different things.
Mr John Erni from the Pink Alliance holds a different view to Truth and Light on the discrimination problem. “It is serious. No question. Or we would be seeing more LGBTI people coming out outright.” The later part of the comment proves to be true. Goldman Sachs and IBM have together sponsored a report published in June 2010 titled Creating Inclusive Workplaces for LGBT Employees. The report estimates fewer than 5% of lesbians or gays are ‘out’ in the Hong Kong workplace. The same fear to come out has troubled LegCo member Mr Raymond Chan (陳志全) too but he overcame it quickly. “If I don’t even step up and fight for the rights of the minority group which I belong to, how can I fight for the rights of other minority groups in the society?” The courage of Mr Chan to come out might be inspiring but his heroic story does not always translate to ordinary LGBTI people’s lives.
Early this month, the Constitutional and Mainland Affairs Bureau commissioned Policy 21 Limited to conduct a study on the sexual orientation discrimination status in Hong Kong. In the same week, the Hong Kong Queer Alliance (香港性小眾平權聯盟) issued a survey result on the same topic. 48% of the homosexuals and 68.1% of the transsexuals who took part in the survey have experienced discrimination. “It shows a ‘serious discrimination’ which is not tolerant to LGBTI people coming out”, says the Alliance.
Evidence of discrimination – International Christian School
This January, LegCo member Mr Raymond Chan (陳志全) raised a hue and cry concerning the International Christian School in Shatin which asked employees to sign the Standards of Biblical Ethics and Integrity. The contract makes it clear that an employee will face disciplinary actions including “termination of service, and/or legal action” if he or she engages in, among other things, “any form of homosexuality, [...], alternate gender identity, [...] that violates biblical sexual purity or the marriage covenant between man and woman.”
“This is an evidence of discrimination”, says Dr York Chow (周一嶽). He reiterates that schools are public institutions and the International Christian School has obviously violated the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation which was issued by the Government in 1998. However, with no binding force, the Government can only enforce the Code internally.
48% of the homosexuals and 68.1% of the transsexuals who took part in the survey have experienced discrimination.”
EOC has written to International Christian School but has not yet received any reply. Anti-discrimination laws in Hong Kong so far only cover sex, disability, family status and race. Without an anti-discrimination law subjected to sexual orientation, EOC lacks the power to pursue further action in this case.
Revenge of the law
The sexual orientation discrimination problem is hardly new and with global and regional LGBTI developments gearing up, we arrive at a watershed to either step up or maintain the status quo. Ever since the homosexual behaviour in Hong Kong was decriminalised in 1991, little has been done in legislation to protect sexual minorities. Former lawmakers Ms Anna Wu (胡紅玉), also former Chairperson of EOC and currently a member in the Executive Council) and Mr Lau Chin-shek (劉千石) each presented a private bill that included sexual orientation anti-discrimination legislation in 1995 and 1996, respectively. They lost only by a narrow margin.
Instead of bringing the anti-discrimination bill back to LegCo, the Government set up the Advisory Group on Eliminating Discrimination Against Sexual Minorities in June last year. “It’s one step backward”, says disappointed LegCo member Mr Raymond Chan. His sources inside the Government claim that the Chief Executive considered putting the sexual orientation anti-discrimination legislation in his 2013 Policy Address. Mr Chan speculates that the bill was taken away from the Policy Address only because it will not benefit the CE, but establish more enemies. “It depends on the Government’s determination [to legislate the bill]. I think there will be enough votes.”
The EOC Chairperson Dr York Chow (周一嶽) also urges legislation of an anti-discrimination law. “We [EOC] still feel that the laws [anti-discrimination laws] need to be expanded in order to facilitate our work, and at the same time to ensure our society is more fair.” Polls initiated by the Government in 2006 and LegCo member Ms Cyd Ho (何秀蘭) in 2012 have seen a roughly 10% increase in the public opinion favouring the legislation of the anti-discrimination law to protect sexual minorities. Majority will seems to be in place for the anti-discrimination law but who is getting in the way? In the eyes of Dr Joseph Cho (曹文傑), Spokesperson of the Queer Alliance, the answer is clear: “Truth and Light” and their affiliates.
We say no
Ethnic minorities, disabled people and women are all protected under the current anti-discrimination laws but not sexual minorities. It seems odd to many that the LGBTI community is left out and unprotected. Mr Choi Chi Sum (蔡志森) from Truth and Light argues against the law with non-religious rhetoric:
- It lacks an objective standard to verify whether a person is gay or not and employees may abuse the anti-discrimination law when they are sacked. Such a law will lead to labour conflicts and companies might be involved in constant litigation.
- Discrimination against LGBTI people is not that serious, while education on anti-discrimination alone is enough to raise the awareness of anti-discrimination.
- In the eyes of Mr Choi, LGBTI issues are moral issues and by means of legalising LGBTI bills in the legislation, the Government is forcing religious groups and ordinary people who do not agree with the concept of LGBTI to comply. “We have to define what is discrimination. We oppose to a certain issue doesn’t mean we discriminate against somebody. We should have the rights to express our dissent”; and
- Reverse discrimination. Truth and Light fear of losing the freedom of speech to express their religious beliefs. Mr Choi does not blame LGBTI people for who they are but rather blames the fundamental concept of LGBTI that contradicts his religion. Like smoking, Truth and Light and himself are strongly against the behaviour rather than the people who do it. Meanwhile with implications of the law, their freedom to condemn LGBTI issues based on their religious belief will be undermined. “You can not take away other people’s choices just by virtue of making your own choices.”
As an entrepreneur, Mr Peter Shiu (邵家輝) from the Liberal Party is in accord with Truth and Light’s argument on the potential labour conflict. Mr Shiu claims the anti-discrimination will not help as employers are smart enough to use unrelated excuses to lay off LGBTI workers to avoid legal troubles.
We say yes
LGBTI groups, however, claim the reverse discrimination argument is irrational and a fear-based strategy. The fear is losing the right to discriminate against what they see as “wrong” on the basis of religious freedom. “The very phrase ‘reverse discrimination’ has no legal basis whatsoever. But what it does have is a kind of popular fear strategy. That’s what that phrase does. It doesn’t do any legal work, it doesn’t do any rational work”, says Mr John Erni from the Pink Alliance, an international human rights expert.
Discrimination arises when the rights of minorities are impaired by the majorities. “Anti-discrimination law is set up to protect minorities. Majorities can’t be said to be discriminated against because of the protection, it doesn’t make any logical sense.” Not only reverse discrimination “doesn’t make any sense”, Mr Erni believes that minorities will not have the power to overthrow the majorities. The churches will continue to preach to their followers. Truth and Light is not convinced.
“We need a good public consultation on this [anti-discrimination law] and address it with the perspective and priority of our young people. I think this is actually very important.” Chow
Article 32 in the Basic Law states that “Hong Kong residents shall have freedom of conscience. Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public.” In the absence of the anti-discrimination law, religious groups can openly criticise LGBTI behaviours and religious organisations can deny services to LGBTI people but it might not be the case if the law is enacted. This will certainly be the biggest nightmare to some religious people. It will remain to be seen how such freedom of religion is preserved along with the sexual orientation anti-discrimination law in the future.
Embracing the principle of equality, Dr York Chow sees a clear line. He advises people not to intrude in others’ independence when exercising their own rights. “You can hold on to your own religions, you can hold on to your own values, but don’t try to exhibit it by actions and speeches in the public.” He is steadfast to eliminate all kinds of discrimination in Hong Kong and he will soon wage war on age discrimination and discrimination against mainland tourists. “I don’t think any discrimination should be allowed in the society in Hong Kong anyway.”
Bridging the gap
With two years of effort, Hong Kong Queer Alliance (香港性小眾平權聯盟) presented a draft law for sexual orientation anti-discrimination in early March. They adopt the “harm principle” which is originally articulated by John Stuart Mill to prevent people from overstepping other people’s rights. The Alliance suggests that the freedom to express one’s conscience should be limited when it is a public concern but offers some exemptions where the law can be ignored in certain religious communities and services:
- appointment of religious positions;
- lease of religious venues; and
- religious membership and services.
The Alliance refuses to give ground to similar cases like the International Christian School. They consider religious subjects in schools are not for advocating certain religions or recruiting followers. Staff who teach religious subjects are therefore not fit with the above exemptions.
The draft law can be seen as an opportunity for both sides to reach mutual consensus. However, the argument of reverse discrimination of religious groups is not wholly resolved in the Alliance’s proposal as they still might be sued for slander if they condemn LGBTI issues in public.
Hong Kong core values
“Even if you are a minority of one, the truth is the truth.” These are the words of Gandhi and might help enlighten the debate. Equality is a fundamental human right and should not be easily undermined, not even through the freedom of religion. That is the truth. Religious groups might have to re-think how they should incorporate teachings of their sacred books on the issue of equality. After all, religion is the light to good conduct and that light should not lead us to discrimination, intolerance and hatred.
As a Christian himself, Dr York Chow holds a different mentality on supporting LGBTI rights as opposed to some of his co-religionists. “We need to embrace all people. We advocate for pluralism and inclusion. We want to ensure that in all areas we can accept diversity and inclusion. And because of that, I think we should have zero tolerance on any discrimination”. These core values of Hong Kong bring our city the ineffable status as an international city, but will be tarnished if we fail to step up for minority rights.
In the end of the day, it will be the young people who lead the society and decide how far we should venture. Dr Chow sees the significance of young voice particularly on LGBTI issues: “We need a good public consultation on this [anti-discrimination law] and address it with the perspective and priority of our young people. I think this is actually very important.” Young people will shape the future of our society. Perhaps, the society should keep up with them.