GENDER: LGBT+ RIGHTS

LGBT is an acronym in use since the 1990s which stands for lesbian, gay, bisexual and transgender, and it has currently become widely adopted as an umbrella term by the majority of sexuality and gender identity-based communities. Variants such as the term LGBT+ is also frequently used to encompass a wider spectrum of sexuality and gender, inclusive of the intersex and queer community.

In Hong Kong, there is neither legal recognition of same-sex marriages or civil unions, nor legislation for addressing discrimination based on sexual orientation or gender identity (SOGI). Apart from the legislative reform in 1991 decriminalizing sodomy between consenting male adults and the post-1997-handover legislative action of including same-sex cohabitating couples within the protections of the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189 of the Laws of Hong Kong), LGBT+ rights advancements are primarily driven by the work of the courts through domestic litigation, by incorporating international human rights standards in assessing the constitutional right to equality, which extends to protections from discrimination based on gender and sexuality under the rights-based framework underpinned by the Hong Kong Basic Law and the Bill of Rights Ordinance (Cap. 383 of the Laws of Hong Kong) (BORO).

LGBT+ RIGHTS

PUBLICATIONS & SUBMISSIONS

Journal Articles

The Invention of Tradition: Same-sex Marriage and its Discontents in Hong Kong’, International Journal of Constitutional Law (forthcoming, 2020)
- By Marco Wan NEW!

The Courts, Public Opinion and the Rights of Lesbian, Gay, Bisexual and Transgender Persons: A Hong Kong Perspective - By Kelley Loper NEW!

(2019) Australian Journal of Asian Law 20(1), Article 4

Abstract: In recent years, courts in many jurisdictions have considered the relevance of societal consensus when judicially reviewing policies that affect the rights of sexual orientation and gender identity minorities. This article focuses on three landmark cases concerning transgender marriage and the rights of same-sex couples in Hong Kong, where the apex court has produced relatively progressive rights jurisprudence. A study of these decisions offers comparative insights about the role of public opinion when judges resolve potentially controversial claims involving the rights of lesbian, gay, bisexual and transgender (LGBT) persons. It examines the lower courts’ reliance on, and the Court of Final Appeal’s ultimate rejection of, consensus as a factor when justifying limitations on fundamental rights. At the same time, this analysis suggests that a more nuanced approach — entailing both resistance and responsiveness to public opinion — may be warranted. The Hong Kong jurisprudence sets the stage for developing alternative understandings of consensus which could enhance judicial contributions toward broader discussions in support of LGBT rights protection.

Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong -By Kelley Loper

(2019) North Carolina Journal of International Law and Commercial Regulation 44(2), 273-316

Gay Visibility and the Law in Hong Kong -By Marco Wan

(2019) 32(3) International Journal for the Semiotics of Law, 699-713

Sexual Orientation and the Historiography of Marriage in Leung Chun Kwong v. Secretary for the Civil Service and Another -By Marco Wan

(2018) 48(2) Hong Kong Law Journal, 605-623

Transsexual Marriage in Hong Kong: Going Beyond Bellinger -By Po Jen Yap

(2013) The Law Quarterly Review 129, 503-507

Understanding Goodwin: W v Registrar of Marriages -By Athena Liu

(2012) Hong Kong Law Journal 42(2), 403–430
In W v Registrar of Marriages, the Court of Appeal dismissed a post-operative male-to-female transsexual person’s claim based on the right to privacy and the right to marry (the “constitutional issue”). This paper considers how the Court decided the “constitutional issue”. With reference to the jurisprudence of the European Court of Human Rights in Goodwin, it is argued that in deciding the “constitutional issue”, the Court has (i) recast Ms W’s claim (by focusing predominantly on the right to marry, omitting reference to personal autonomy underlying the interpretation of the right to privacy, and reducing the right to marry to one of definition), (ii) offered limited understanding of Goodwin and, it would seem, (iii) been influenced by the discarded decision in Sheffield.

Exacerbating Corbett: W v Registrar of Marriages -By Athena Liu

(2011) Hong Kong Law Journal Volume 41(3), 759-789

W v Registrar of Marriages and the Right of Equality in Hong Kong -By Kelley Loper

(2011) Hong Kong Law Journal 41(1), 89-107

A Principled Approach Towards Judicial Review: Lessons from W v Registrar of Marriages -By Puja Kapai

(2011) Hong Kong Law Journal 41(1), 49-74

Deference and the separation of powers: an assessment of the court’s constitutional and institutional competences (using W v Registrar of Marriages as an example) -By Cora Chan

(2011) Hong Kong Law Journal 41(1), 7-25

Employment Discrimination Based on Sexual Orientation: A Hong Kong Study -By Holning Lau & Rebecca L. Stotzer

(2010) Employee Responsibilities & Rights Journal 23(1), 17-35

The Same Difference: Protecting Same-Sex Couples under the Domestic Violence Ordinance -By Puja Kapai
(2009) 4(1) Asian Journal of Comparative Law, Article 9, pp. 237-269

Research Reports & Briefing Papers

Research Report on Same-sex couples’ unequal access to public housing in Hong Kong and its fiscal implications (May 2019)
- By Elizabeth Lui

CCPL Policy Paper research finds that due to the discriminatory nature of the public housing policy, LGB individuals are subjected to an economic penalty of HKD233,539. Findings of the study also suggest that the impugned policy is counter-productive to distributing public housing fairly and efficiently.

Research Report on Public Attitudes Towards Transgender People and Antidiscrimination Legislation (June 2018, published 1 February 2019)
-By Holning Lau, Charles Lau, Kelley Loper, Yiu-tung Suen

Report: | English | Chinese | Press Release: | English | Chinese |
Led by Kelley Loper, CCPL’s Director, Holning Lau from the University of North Carolina School of Law, Charles Lau from RTI International, and Yiu-tung Suen from the Chinese University of Hong Kong, the survey finds that a majority (80%) of Hong Kong said they are either very accepting, moderately accepting, or a little accepting of transgender people. In addition, 67% of people agreed that Hong Kong should have a law that protects people from being discriminated against because they are transgender.

Research Report on Support in Hong Kong for Same-sex Couples' Rights (July 2018) -By Holning Lau, Charles Lau, Kelley Loper, Yiu-tung Suen

The report tracks changes over time in Hong Kong public opinion concerning legal protections for gay men and lesbians by comparing the data from telephone surveys respectively conducted in 2013 and 2017, which reflects a growing number of Hong Kong people saying that they favor protecting gay and lesbian rights.

Briefing Paper: Public Attitudes towards Gays and Lesbians and towards Sexual Orientation Anti-discrimination Legislation (October 2014)
-By Kelley Loper, Holning Lau, and Charles Lau

There is a mounting discussion about introducing legislation in Hong Kong to prohibit discrimination based on sexual orientation in the private sector. The Hong Kong Equal Opportunities Commission launched a Discrimination Law Review in July 2014 and has commissioned a study on the feasibility of legislating against discrimination on the basis of sexual orientation, gender identity and intersex status.1 To inform this conversation, this briefing paper presents public opinion data from a 2013 telephone survey. We report public attitudes towards gays and lesbians and towards proposed anti-discrimination legislation.

Book Chapters

The Nature and Development on Laws on Sexuality in Equality? Hegemony? Review on the Issues concerning Homosexuality, p. 240-251. Hong Kong: Cosmos Books Ltd, 2005 -by Benny Tai & Karen Lee

The strategies of the Hong Kong Churches towards anti-discrimination legislation on sexual orientation in Yip, K.T. (Ed.), The ends of the rainbow: 200 days of dispute over SODO Legislation, p. 18-27. Hong Kong: Logos Publishers and Christian Times, 2005 - by Benny Tai

Government Submissions

Submission to the Hong Kong Government's Inter-departmental Working Group on Gender Recognition (December 2017)

On 20 November 2017, Kelley Loper, Director of the Centre for Comparative and Public Law, HKU, made a deputation to the Legislative Council Panel on Administration of Justice and Legal Services on the Consultation on Gender Recognition issued by the Hong Kong Government’s Inter-departmental Working Group on Gender Recognition. She presented the results of a CCPL study conducted with Holning Lau from the University of North Carolina and Charles Lau from RTI International. The project team analysed data from a recent telephone survey, run by the HKU Social Science Research Centre, that measured public opinion toward transgender people in Hong Kong.

Publications