Equal opportunities and sexual orientation challenges in Hong Kong
A speech delivered at a speaker luncheon of Hong Kong Democratic Foundation on 12 September 2013
First of all, thank you so much for inviting me to give a brief talk on some of my work and the work I’ve been doing particularly for the Hong Kong community. Just to summarize what the Equal Opportunities Commission does, we are the only organization under the jurisdiction that is in charge of the Discrimination Ordinances – Sex Discrimination Ordinance; Family Status Discrimination Ordinance; Disability Discrimination Ordinance, which was enacted in 1996 and enforced in 1997; and Racial Discrimination Ordinance passed in 2008 and enforced in 2009.
We deal with a lot of complaints related to these four ordinances and we receive about 16,000 enquiries a year, about 900 of which we actually need to resolve. Out of those 900 cases, 70% are handled by conciliation, which is a form of mediation under our jurisdiction. In quite a number of cases, we need to consider whether to resolve the case at the court. It’s a civil law, which is why we need to initiate the legal action ourselves. We also have a budget to fund those legal actions ourselves. But over the years, there are actually not that many cases taken to court, since they usually involve employment. Employees do not want to reveal their names to the public in case they won’t get a job afterwards. Employers also settle these cases last minute because they don’t want their names to be publicized. We’re still looking for some significant cases that we can actually take to court so that it’ll be a very good lesson to the whole sub-community. These are what we do day in day out.
Another thing we do is on research and policy. We look at different policies and we have a research team who look at whether any of those policies violate the Discrimination Ordinances. We also look at education, some of the disability services, rehabilitation and so on. We also have the legal section which supports the operation. We have five to six lawyers, and we just employed a senior counsel from the UK. He was previously with the human rights organization of the UK, so we’re now better equipped to understand the European ordinance as well. There’s one section that deals with public education, community relations and training. We run a lot of training for both government and non-governmental organizations, particularly in human resource management, such as what they can and cannot do when dealing with applicants or employees with disability, or of different genders and family status.
I was asked by Alan to speak on the subject of sexual orientation and gender identity. Maybe I should first define the spectrum of the so-called sexual minority. We’re talking about LGBTI, which stands for lesbian, gay, bisexual, transsexual or transgendered, and inter-sex. Inter-sex refers to people who were born with a mix of male and female physical features. They might have a genetic makeup of both male and female genes as well. They might be brought up as a boy or a girl, but might not actually accept that they belong to that gender throughout their development. So they face the same problem with the transgendered, who were born with a fixed gender, but are uncomfortable with their gender and cannot accept their physical form. This is another area which I think we have to pay attention to. I think the main problem in Hong Kong is that a lot of people don’t understand transgendered and inter-sex. Even if they understand a bit they don’t want to talk about them.
For homosexuality, and the lesbian and gay, traditionally it’s also a subject that’s seldom brought up. We have a very strong tradition and also a strong religious background here which make people not want to discuss the subject. Nobody talked about it, although we knew people with that status existed. It was only brought up when we discussed the Discrimination Ordinance on sex in 1996. It was discussed, but the committee said there wasn’t enough data and support, so it was dropped. This has dragged on for the last 15 to 16 years, until earlier this year when the European countries like the UK and France, and New Zealand were changing their laws. So the movement came up.
Now more LGBTIs are willing to stand up for themselves and voice out their concerns. Over the last five months, I’ve met with over 40 individuals representing different organizations on LBGTI. Those stakeholders are part of the LGBTI community, and they have separate communities among themselves. There is also a group of people who are very much against them, in terms of the legislation. I have regular meetings with the latter group in particular, because they know that I’m standing together with the LGBTIs. I’ve received a lot of e-mails from them trying to argue with me. And I’ve been patient in responding to their arguments so far.
I think the argument from those against the legislation is that first of all, according to their religion, the gays and the transsexuals do not conform to God’s will. In other words, they are considered sinners in a sense and need to be corrected. But over the years with the advancement of medicine, it has been proven that being homosexual is not a disease. It is just a characteristic of individuals, which cannot and should not be cured, because a lot of the treatments homosexuals receive impose a lot of pain and suffering on them. The WHO actually removed homosexuality from the category of diseases in 1990. A number of international psychiatrist organizations also stated very clearly that such treatment should be condemned and should not be used unless there’s proper supervision and there’s no pain imposed. Some people are still receiving treatment but I think they’re doing it under the table rather than in front of their peers. What we need to do is to recognize their existence, and ensure that we treat them the same way as any other individuals in the society. That’s basically the principle.
Another argument from the opposition is that they worry that legislation to protect homosexuals would destroy the so-called family values and also the traditional concept of family, which is husband and wife and children, rather than two men or two women with or without children. We can see that there are also gay couples in other countries. They’re actually just the same as heterosexual couples. So I think this argument cannot stand firm. The other thing, they say, they cannot say what they used to preach and teach children now because of the law. My opinion is that nobody would argue with them or sue them if they say anything at home because it’s a private environment. They can also say something within the church, if they’re just reading the Bible and interpreting it in their own way. But I think it’s not right to say anything in the public arena. Both speech and behaviour would be considered discrimination.
At the moment, our discrimination law covers six areas: employment, education, provision of goods and services, buying and renting of premises, voting rights, and the freedom to join any associations. That should be the minimum that applies to any discrimination laws for LGBTIs. I don’t think there should very strong arguments against those. I think in some countries, there are some exemption areas, such as allowing the church to only employ non-LGBTIs. I wouldn’t be the one to put out such exemptions. I think it’s the best to have as few exemptions as possible. It is up to the churches themselves to make such requests if they can justify it. I think this is resolvable.
When it comes to LGBTI, we cannot ignore another right which is marriage or civil union. I think the terms can be used interchangeably, but in some states in the US they use the term civil union instead of marriage, simply to avoid the opposition from some churches. Essentially the two are the same with regards to legal status. When we talk about legal rights, this is one area in which we have to make compromises between different parties.
Regarding the timing of the movement, originally we were quite pessimistic. Like any other movement in the past, they would usually just come and go. The current government at one time actually leaked out that they wanted to do a consultation concerning the law, which was originally planned to appear in the Policy Address of the Chief Executive earlier this year. However, the paragraph has been deleted after some of the actions done by the church groups. Instead, they set up a committee which Tommy (Tommy JAI) sits in. While they are seeking a way forward, there is not much commitment at this stage.
From what I can see, the Court of Final Appeal case concerning W (transsexual woman who won the case for the right to marry her boyfriend) has given a new impetus upon this whole movement. First of all, the judge’s ruling that the current Marriage Ordinance is unconstitutional when it is applied to transgendered individuals. Therefore, they need to amend the Marriage Ordinance in order to accommodate individuals of a transgender status. However, the so-called “Male-Female Marriage” is still respected under the Marriage Ordinance, which means this is not yet a recognition of same-sex marriage. Despite this, the judge made a recommendation to the government that they need to look at the whole transgender procedure: in other words, some of the existing procedures in Hong Kong might not be the ideal way of affirming the gender of a person. The other recommendation by the judge is, the government should also look into the formulation of a law to ensure that there is no discrimination against transgendered individuals. When such a Discrimination Ordinance materializes, naturally the society would also consider all its implications: subjects like sexual minorities, amongst others, would be brought into light.
With regards to the transgender procedure, at the moment, Hong Kong only recognizes the change of gender if a person has received a sex-reassignment surgery. That is, it is required that a person must have their sex organs changed before they can be considered as a transgendered person. However, according to experts in psychiatry and experts in this area, people considering transgender procedures had to undergo various challenges during their upbringing. Some of them might not want to have a drastic measure to change their physic, even though they lived the lifestyle of a different gender.
In the UK, a panel of experts has been set up to assess such situations. If they can confirm that a person has lived the lifestyle of a different gender, and that it is unlikely for the said person to change for 24 months, they can certify this as a valid case for gender change. A certificate will be produced to ensure that the person’s new gender would override the original gender in the person’s birth certificate, along with all other relevant areas, such as on the person’s passport. This is something we need to look into, because I believe it is much more humane, while offering a solution to the full spectrum of gender dysphoria. However, it will likely be a very challenging process for the Hong Kong Government, because it challenges the traditional way of deciding whether a person is a man or a woman.
This is something the government has been asked to do within 12 months. While they can change the ordinance with relative ease in 12 months, they cannot change the gender recognition procedure, along with the laws involved, so easily. In light of this, I believe the government should set up a platform to discuss solutions for this matter. I myself, along with the EOC, have expressed our interest in volunteering for such efforts by the government.
Other subjects of concern include sexual orientation and discrimination against sexual minorities. Regarding this, I believe that we need to have more voices and discussions in the public sphere. We also need to have more information, references, and assistance from the international community in this area. This is a legislative decision that Hong Kong cannot avoid. We cannot escape the responsibility of addressing this minority forever. As a modern city and territory, I believe that there is no need for us to hold on to certain traditions and deprive peoples’ rights to love one another. Recent surveys conducted by our affiliated organizations suggest that over 60% of the respondents are in favour of legislation to protect the rights of LGBT individuals and to safeguard them from discrimination. Furthermore, 70% of the respondents under the age of 30 believe that we need to protect the rights of LGBT individuals with legislation, a view shared by 47% of the respondents above the age of 45. It is obvious, then, that our society needs to act upon this matter. This is the position of the EOC, and it also coincides with my personal beliefs.
York Chow Yat Ngok (周一嶽)
Chairman of the Equal Opportunities Commission (平等機會委員會主席)
12 September 2013