Gay civil servant wins final appeal on spousal benefits for husband in another victory for HK’s LGBT community

07-Jun-2019 Intellasia | South China Morning Post | 6:00 AM Print This Post

A gay civil servant prevailed in his final appeal on Thursday to require the Hong Kong government to grant him and his husband spousal benefits and joint tax assessment, in yet another landmark ruling for the city’s LGBT community.

The Court of Final Appeal ruled in favour of Angus Leung Chun-kwong, a senior immigration officer who took the government to court after being unequally treated by the city’s biggest paymaster and the taxman.

The ruling came just days after a separate case in which the Court of First Instance sided with a gay activist and struck down or revised seven criminal offences discriminatory against homosexual men.

Last year, the top court also backed an expatriate lesbian in recognising her overseas marriage for the purpose of getting a spousal visa.

In a summarised judgment, the top court, which reached the decision unanimously, said it accepted the government had a legitimate aim to protect the institution of marriage.

“However, the court rejected the prevailing views of the community on marriage as a relevant consideration since 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 judges wrote.

They added there was no rational connection between protecting the institution of marriage and denying Leung employment and tax benefits.

“It is difficult to see how any person will be encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits,” they ruled.

They criticised the government for resorting to a “circular logic”, by saying that Leung should not be granted the rights just because his marriage is not recognised in Hong Kong. That was no explanation, they said, for why there are such differential treatments based on sexual orientation.

They added the government’s refusal undermined its own equal opportunities employment policies. Leung, who has a marriage certificate, would also not cause any “administrative difficulty”, they said.

The court has given both the government and Leung’s legal team a little more than a month to propose suggestions on how the judgment might be enforced in practice.While Taiwan became the first place in Asia to allow same-sex marriage last month, Hong Kong’s definition of marriage between a man and a woman to the exclusion of others has remained unchanged in the Marriage Ordinance since the 1930s.

Leung, 39, took the government to court in late 2015 after the secretary for the civil service refused to grant spousal benefits to his British husband, Scott Adams.

The couple, who are fighting for medical and dental benefits, married in New Zealand in 2014.

Leung also challenged the Inland Revenue Department for not allowing him to make a joint tax assessment with Adams, as heterosexual couples can do.

He originally succeeded in his challenge against the Civil Service Bureau at the Court of First Instance, but lost when the bureau sought to overturn that ruling at the lower appeal court. All lower courts ruled in favour of the department.

Leung argued that the discriminatory treatments amounted to a violation of the Bill of Rights and the Basic Law, the city’s mini-constitution.

During the final appeal last month, the government’s lawyers argued that it had a duty to protect the institution of traditional marriage. But Leung’s lawyers countered, saying there was no “rational connection” between granting such rights and dealing a blow to heterosexual marriage.

Born and raised in Hong Kong, Leung joined the Immigration Department in 2003 and married Adams on April 18, 2014 in New Zealand. Adams has been living in Hong Kong for years.

In a previous interview with the Post, Leung revealed that the two bonded over diving and adventure. He said he was prompted to speak up when he saw the government’s conflicting views on the city’s LGBT community on one hand, it encouraged the public to be accepting while, on the other, it denied rights.

His case was among a series of legal challenges brought by Hong Kong’s LGBT community in recent years. Last week, a court also heard the city’s first judicial challenge that took on the government for not providing the option of same-sex marriage and civil union partnership.

Cases waiting before Hong Kong courts include those of a married gay man suing the government for its differential public housing policy and a pastor who fears criminal sanctions for holding a same-sex marriage ceremony.

Leung and Adams were travelling overseas when they learned on Wednesday that the judgment would be handed down the following day.

They flew back to Hong Kong in time for the judgment on Thursday but did not make it to the court.


Category: Hong Kong

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