Court in Hong Kong Backs Gay Marriage for Civil Service

A landmark ruling by a High Court judge allowing Civil Servants with same sex partners entitlement to the same rights and benefits as their heterosexual married colleagues (Image courtesy: wpcpey).

A High Court judge has ruled that civil servants from Hong Kong who travel overseas to marry their same sex partners are entitled to claim the same rights and benefits as their heterosexual married colleagues.

The landmark ruling was made by the territory’s Court of First Instance on 2 May in a case brought by senior immigration officer Leung Chun-kwong, who married his partner Scott Adams in New Zealand in April 2014.

Leung launched the legal challenge against the Secretary for the Civil Service and the Commissioner of Inland Revenue in December 2015, after they refused to recognise the marriage.

The Secretary turned down Leung’s request to update his status to married, which would entitle Adams to civil service benefits for spouses, on the grounds that same-sex marriage is not recognised under the civil service regulations because it is not legal in Hong Kong.

His decision denied Adams a wide range of benefits to which the spouses of Hong Kong’s civil servants are entitled, typically including medical and dental insurance, a housing allowance, and assistance with any children’s school fees.

But Mr Justice Anderson Chow handed Leung victory in his judicial review of the decision, after finding that it indirectly discriminated against the civil servant based on his sexual orientation.

In his 26-page judgment, Chow dismissed the government’s argument that the civil service policy is legitimate and necessary in order to achieve the aims of not undermining the integrity of marriage and safeguarding public order.

“The line as drawn by the Secretary between those who are legally married under Hong Kong law and those who are not begs the question of whether it is legitimate or justifiable to accord differential treatment based on sexual orientation, because homosexual couples are, by definition, unable to be legally married, or recognised as legally married, under Hong Kong law,” he stated.

“I am unable to see how the denial of ‘spousal’ benefits to homosexual couples who are legally married under foreign laws could or would serve the purpose of not undermining the integrity of the institution of marriage in Hong Kong, or protecting the institution of the traditional family.”

However, Leung’s parallel application for judicial review of the Commissioner of Inland Revenue’s refusal to grant him joint assessment for income tax with Adams was turned down. This was because the Inland Revenue Ordinance explicitly defined marriage as between a man and woman, Chow stated.

The ruling sparked a heated exchange between gay rights campaigners and a conservative Christian group on Hong Kong public radio station RTHK, and prompted union leaders to predict that more gay civil servants would marry overseas to claim benefits for their partners.

Leung said the court had “recognised and rectified a fundamental unfairness” and urged the government to actively review its policies instead of waiting to be legally challenged, the South China Morning Post (SCMP) reported.

Leung Chau-ting, head of the Hong Kong Federation of Civil Service Unions, said the government should not deprive gay civil servants of rights because of their sexual orientation, according to the SCMP. “Hong Kong is a cosmopolitan city and should revise its relevant laws to protect their rights,” he said.

But Choi Chi-sum, general secretary of the Society for Truth and Light, said that most Hongkongers are against same-sex marriage and it’s unfair to make taxpayers cover the costs, the Hong Kong Free Press reported.

“We should not let a few judges define marriage,” he said. “The civil service welfare benefits are paid for by public money. If people don’t agree with the ruling, why should they be forced to pay for the benefits of gay couples?”

Chief Secretary for Administration Matthew Cheung Kin-chung said the government was seeking legal advice over the ruling, RTHK reported.

The ruling will take effect on 1 September. The court ordered that the government pay 60% of Leung’s costs.

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