How a Landmark Ruling Could Pave the Way for Hong Kong to be ‘the Best in Asia’ on LGBTQ Rights

Hong Kong’s top court recently delivered a landmark decision to allow a spousal visa for a British lesbian woman, in what was seen by many in the city as a significant victory for the LGBTQ community.

Same-sex marriage is not legal in Hong Kong, and gay expatriates who come to the city to live and work were, until now, unable to obtain dependent visas for their partners to join them.

QT, as she is anonymously known in the case, moved to Hong Kong after entering into a civil partnership with her partner, SS, in the U.K. in 2011. SS had been offered a job in the city and QT applied for a dependent visa, as married heterosexual couples in the same position would do. But the immigration department turned the application down on the grounds that Hong Kong does not recognize same-sex partners.

Represented by prominent human rights lawyer Michael Vidler, QT launched a legal battle in 2014 that gained international notoriety when dozens of major firms including Goldman Sachs and Morgan Stanley threw their weight behind her, arguing that Hong Kong’s policy was crippling efforts to recruit talent to the financial capital.

After three years of pinballing through the courts, on July 4, Hong Kong’s Court of Final Appeal made the unanimous decision to grant QT the right to a dependent visa.

“Although [QT] is a foreigner, she’s not only fighting for the rights of herself, but also the LGBT community in Hong Kong,” says Raymond Chan, Hong Kong’s only openly gay legislator. “QT’s victory is a small, personal step toward full equality, but for Hong Kong LGBT community, it is a giant step forward.”

Compared to other Asian countries like Indonesia, where LGBTQ persecution is fueling an HIV epidemic, or Malaysia where homosexuality is illegal and ‘how to spot a gay’ checklists recently appeared in one newspaper, Hong Kong is a relatively safe place for the community. But when measured up to other “world cities” such as London, New York, or even Taipei, the state of LGBTQ rights in Hong Kong is bleak.

“Right now today [Hong Kong’s LGBT law] is evolving and it’s moving toward an acceptable position and that’s because of the QT case,” says Duncan Abate, partner at Mayer Brown JSM specializing in employment law. “If you strip out the QT case, Hong Kong is light years or at least decades behind other civilized societies.”

Basic rights still elude the city’s LGBTQ community. Marriage in Hong Kong is only considered to be between a man and a woman. LGBTQ couples do not have the right to adopt children, to inheritance, parental rights or even public housing. Only last year did the government reluctantly approve a bill that allowed LGBTQ couples the rights to their partner’s ashes. And now, the government is relenting to anti-gay religious groups lobbying for LGBTQ-themed children’s books to be hidden in libraries — a move Human Rights Watch has denounced. While there are some anti-discrimination laws, there are none for sexual orientation — meaning if an employer wanted to fire someone because they were gay, they could.

“If you don’t even have [an anti-discrimination law] as a fundamental building block, then it makes it very difficult for there to be equality, even a move towards equality,” says Abate.

Against this backdrop, the QT the ruling was indeed a big step forward, particularly for expats who account for some 8.6% of the city’s population of 7.4 million, according to government figures.

For local Hong Kongers, however, the judgment is highly restrictive. It means that Hong Kong will recognize same-sex marriages and civil unions only within the context of obtaining a dependent visa — a scenario largely only applicable to foreigners. The ruling does not alter the territory’s stance on same-sex marriage or benefit the local community in any immediate way. Meanwhile, the LGBTQ community continues to suffer. A recent 2016 study found that 88% of one focus group had faced discrimination in the last two years.

“There’s a lot of sexual orientation discrimination in Hong Kong mainly because there is no legal protection on discrimination,” says Tommy Chen, 44, a spokesperson for LGBTQ activist group Rainbow Action. It’s something Chen has had to deal with personally. When Chen was organizing Hong Kong’s annual Pride Parade, Rainbow Action contacted a bus company to arrange a float. After submitting forms to the company, which has rented buses to an array of political parties, the company refused. According to the Chen, the company said they checked Rainbow Action’s website and declined their request because of the “company’s image.”

“Most discrimination is not explicit,” says Chen. “But even the most explicit, the government will say there’s no discrimination.”

Public opinion on LGBTQ rights in Hong Kong appears to be changing. Published the day before the ruling, a major new report found that over half of Hong Kongers agreed with same-sex marriage, up from 38% in 2013. And yet the government shows no indication of bridging that divide. When asked about the ruling, the city’s chief executive Carrie Lam toed the line, emphasizing the QT judgment, “was not about the LGBT rights per se,” but rather the director of immigration’s fair exercise of “his policy concerning the issue of dependent visa.”

Despite its shortcomings, the judgement has energized the city’s LGBTQ movement. Hong Kongers will be watching closely at the next case of Angus Leung, a gay civil servant taking the government to task for denying employment benefits to his partner.

“The reason I think it’s earth shattering in Hong Kong is because it will give LGBT people the confidence to be able to take the decision makers to task about other areas where they may feel they are being discriminated against,” says Abate.

“Some people try to argue that Asian values are different from western values,” says Peter Reading, legal counsel of the Equal Opportunities Commission, the city’s equality watchdog. But human rights obligations don’t vary by region, he adds, and in fact Hong Kong is falling behind other Asian neighbors. Thailand introduced a bill to legalize same-sex civil partnerships. Seven of Japan’s cities and wards recognize gay relationships, and Taiwan is on track to become the first country in Asia to legalize gay marriage.

“The clear trend is that LGBT [people] should be protected from discrimination, relationships should be protected, and Hong Kong could actually become a leader in Asia,” Reading says. “This is an opportunity to be the best in Asia.”

—with reporting by Harvey Kong / Hong Kong