26 June, 2019
What's changed
In Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue [2019] HKCFA 19, the Hong Kong Court of Final Appeal unanimously delivered its second landmark ruling in favour of the LGBT+ community in less than 12 months, following the decision in QT v Director of Immigration [2018] HKCFA 28 in July 2018 (our alert on the QT decision can be found here.)
The court affirmed that same-sex couples who are legally married overseas (same-sex marriage is not currently lawful in Hong Kong) are entitled to the same spousal employment and tax benefits enjoyed by heterosexual married couples.
Employers are advised to review their internal policies regarding the provision of spousal benefits to ensure that they are compliant. This latest decision would be of particular interest to employers who frequently hire employees from overseas.
What the case says
Born and raised in Hong Kong, Angus Leung Chun Kwong has been a civil servant with the Hong Kong government since 2003. Angus legally married his same-sex partner, Scott Adams, in New Zealand in 2014. Angus took the government to court when:
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(1) the Civil Service Bureau refused to grant spousal medical and dental benefits to his husband, on the reasoning that same-sex marriage was not a marriage according to Hong Kong law, and
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(2) the Inland Revenue Department refused to recognize Scott as his spouse for tax assessment purposes, citing that only an opposite-sex marriage was regarded as a valid marriage under the tax legislation.
Angus argued that the refusal of his rights unlawfully discriminated against him on the ground of his sexual orientation, which violated the Bill of Rights and the Basic Law (the mini-constitution of Hong Kong). Sexual orientation is not currently protected under the discrimination legislation in Hong Kong.
The government conceded that there was indirect discrimination, but argued that the differential treatment was justified. The court accepted that the government had a legitimate aim to protect the institution of traditional marriage, but rejected reliance on the prevailing views of the community on marriage as a reason for rejecting a minority’s claim to fundamental rights.
Adopting the principles laid down in its previous decision in QT v Director of Immigration, the court held that there was no “rational connection” between protecting the institution of marriage (the justification relied on by the government) and denying Angus employment and tax benefits (the differential treatment).
The proposition that heterosexual marriage would be undermined by the extension of the employment and tax benefits to same-sex married couples was rejected. The court added that the refusal of Angus’ rights undermined the government’s own equal opportunities employment policies. To conclude, the court held that both government departments failed to justify their differential treatment based on sexual orientation.
What it means to you
Employers are advised to review their internal policies and employment benefits that are extended to the spouses of their employees to ensure that the principles laid down by the Court of Final Appeal are followed.
Same-sex couples who are legally married or have entered into a civil partnership, which share similar characteristics of publicity and exclusivity of a heterosexual marriage under Hong Kong law, are entitled to the same spousal benefits as their heterosexual counterparts.
The decision in this case is a welcome step towards recognizing LGBT+ rights and equality in Hong Kong. Meanwhile, the Court of First Instance is hearing the first challenge to marriage laws in Hong Kong. If the challenge is successful, it could change the current definition of marriage (i.e. between a man and a woman to the exclusion of others) and pave the way to same-sex marriage or civil union partnerships in Hong Kong.
You can find the full judgment of the Court of Final Appeal here.
For further information, please contact:
Rowan McKenzie, Partner, Baker & McKenzie
rowan.mckenzie@bakermckenzie.com
