The Court of Final Appeal (“CFA”) has just handed down its decision in the case of Leung v. Secretary for the Civil Service and others, a case that concerns the rights of a couple in a same-sex marriage to:
- receive medical and dental benefits provided by Leung’s employer (the HKSAR Government); and
- the ability for the couple to file tax returns for joint assessment.
At the outset of their unanimous judgment, the CFA recognised the case as one concerning equality under the law and referred to last year’s decision in QT v. Director of Immigration, which granted dependent visa rights to couples in a same-sex marriage / civil partnership.
Route to the CFA
Leung had limited success in the Court of First Instance. In that court the judge held that the decision not to grant equal benefits constituted differential and unlawful treatment on the basis of sexual orientation. However, the Judge did not find in Leung’s favour on the tax question. His reasoning was that Leung’s same-sex marriage in New Zealand was not a “marriage” for the purposes of the Inland Revenue Ordinance (“IRO”).
Both parties appealed.
The Court of Appeal found against Leung on both aspects, essentially holding that indirect discrimination against same-sex married couples on the ground of sexual orientation was justified on the basis of protecting and not undermining the status of marriage in Hong Kong.
“All Hong Kong residents shall be equal before the law.”
Article 1(1) of the Hong Kong Bill of Rights provides:
“The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The CFA cited its judgment in QT, stating that unlawful discrimination is “fundamentally unacceptable”, but recognized that the law has to draw distinctions between different situations or types of conduct. However, any such distinctions must be justified.
The Justification Test
The correct approach is, first, to determine whether there is differential treatment on a prohibited ground and, only if this can be demonstrated, then, to examine whether it can be justified. Differential treatment which is justified does not constitute unlawful discrimination. However, where differential treatment is not justified it is unlawful discrimination.
Was the Differential Treatment Justified?
Leung’s case was that the benefits and tax decision constituted unlawful discrimination against him on the ground of his sexual orientation. In particular the marriage criterion that was applied was limited to heterosexual married couples and excludes same-sex married couples. As a gay man, Leung was is never going to be able to qualify within the marriage criterion.
It was accepted by the HKSAR’s lawyers that the denial of spousal benefits to a same-sex married couple and their inability to elect for joint tax assessment was indirect discrimination against same-sex couples on the ground of their sexual orientation. However, they sought to justify this discrimination.
The CFA carefully analysed the characteristics of heterosexual marriage in Hong Kong and same-sex marriage (in this case, in New Zealand) and found that they shared the same characteristics, in particular the characteristics of publicity and exclusivity.
Since the marriages shared the same characteristics, the HKSAR sought to justify the difference on the basis that it has the legitimate aim of “protecting and/or not undermining the concept and/or institution of marriage, being the voluntary union for life of one man and one woman to the exclusion of all others, as understood in and under the laws of Hong Kong” and “of protecting and not undermining the institution and unique status of marriage as understood and recognised in Hong Kong”.
It was agreed that the protection of the traditional family constituted by heterosexual marriage is a legitimate aim and a number of authorities were cited in support. The real question, however, is: how does denying spousal employment benefits and the right to elect for joint assessment rationally connected to that legitimate aim?
The CFA asked:
“How is it said that allowing Mr Adams medical and dental benefits weakens the institution of marriage in Hong Kong? Similarly, how does permitting the appellant to elect for joint assessment of his income tax liability under the IRO impinge on the institution of marriage in Hong Kong?”
and concluded that it cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation.
The argument that restricting the financial benefits to opposite-sex married couples on the ground that heterosexual marriage is the only form of marriage in Hong Kong law is a circular argument. Ultimately, a line is merely drawn without any further attempt to justify it. As such, the HKSAR’s arguments failed and the denial of the benefits and joint assessment to taxation was held to be unlawfully discriminatory.
The CFA also recognized the hypocrisy in the HKSAR’s own policies, asking: how it can adhere to employment policies dedicated to the elimination of discrimination on the ground of sexual orientation by denying to a married same-sex couple the same employment benefits that are available to a married opposite-sex couple?
Similar hypocrisy was identified in determining the tax question, where the CFA noted that the IRO recognises a polygamous marriage, concluding that IRO simply does not serve the purpose of promoting traditional heterosexual monogamous marriage.
Illegitimate or Irrelevant Aims
Submissions were made to the CFA about the prevailing views of the community on marriage on the basis that such views should be taken into consideration for the purpose of identifying a legitimate aim and justification of differential treatment.
The CFA roundly rejected these submissions citing the joint judgment of Ma CJ and Ribeiro PJ in W v Registrar of Marriages, in which they rejected the absence of a majority consensus as a reason for rejecting a minority’s claim as being inimical in principle to fundamental rights.
Conclusion
Leung and QT (along with Yeung Chu Wing v. Secretary For Justice also decided this week) and a handful of past cases including W, show that on the issue of same sex and minority rights, where the legislature fears to tread, the Courts, especially the Court of Final Appeal, is fully prepared to uphold the core human right of freedom from discrimination.
Our team at Hugill & Ip has extensive experience in dealing with Tax, Employment Law and LGBT Rights issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
