Gay Civil Servant Wins Landmark Rights Case

A gay civil servant has won a landmark court case that will give his husband the same spousal benefits offered to the partners of his heterosexual colleagues in the government, as well as the option of joint tax assessment.

The Court of Final Appeal found in favour of Leung Chun-kwong, a senior immigration officer, who brought the challenge after he was not allowed to apply for medical and dental benefits for his partner Scott Adams, whom he married in New Zealand in 2014.

The government had argued that this is because same-sex marriage is not recognised in Hong Kong.

But rejecting the government's argument that the differential treatment was justified to protect the institution of traditional marriage, a five-judge panel unanimously granted Leung’s appeal.

The judges ruled that the prevailing views of the community on marriage are not relevant in their consideration, because a “reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights”.

The court said it’s difficult to see how any heterosexual couples would be encouraged to get married just because same-sex spouses were denied those benefits.

In their written ruling, judges also said it’s “circular logic” to justify the restriction: “it uses the fact that the couple has a different sexual orientation from others as the very justification to deny them equality, despite their analogous position”.

The judgement also says that the rationality of the decision to deny benefits to Leung and his husband was further undermined by the government’s own equal opportunities employment policies, and the fact that tax laws do not serve the purpose of promoting marriage between a man and a woman – as they also recognise polygamous marriage.

Judges said an administrative difficulty was not a valid reason to reject Leung’s application, as he could easily have produced his marriage certificate.

Leung took his case to the top court after the Court of Appeal overturned an earlier High Court decision in his favour.

Leung said he welcomes the ruling, but added the victory is only a small step in the fight for equal rights in Hong Kong. He urges the government to review other laws and policies and amend them if they’re discriminatory, so that people no longer have to spend considerable time and money in the courts to fight for their basic rights.

In a statement, the Civil Service Bureau said it respects the Court’s judgement, and will carefully consider it, seek advice from the Department of Justice and take appropriate follow-up actions.

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