Landmark win for gay Hong Kong civil servant over husband’s benefits

South China Morning Post

In a landmark victory with far-reaching implications for Hong Kong’s sexual minorities, a gay civil servant’s husband will be entitled to the same benefits as his heterosexual colleagues’ spouses after a successful legal challenge against government policy.

Wrapping up a case seen by advocates as a “rare judicial recognition” of the city’s gay community, the High Court on Friday rejected the Civil Service Bureau’s stance that it was denying benefits for same-sex spouses to protect “the integrity of the institution of marriage”.

Senior immigration officer Leung Chun-kwong, who married his partner, Scott Adams, in New Zealand in 2014, launched the challenge last year against the secretary for the civil service and the commissioner of the Inland Revenue Department, which was reluctant to recognise their union.

The Court of First Instance on Friday ruled in Leung’s favour against the bureau in an unprecedented decision that may have an immediate bearing on other gay civil servants who married overseas. But it did not rule in his favour against the taxman.

In his 44-page judgment, Mr Justice Anderson Chow Ka-ming called the bureau’s policy “indirect discrimination” and rejected its assertion that the secretary had a justifiable aim “to act in line with the prevailing marriage law of Hong Kong” and not to “undermine the integrity of the institution of marriage … hence safeguarding public order”.

Chow wrote: “I am unable to see how denial of ‘spousal’ benefits to homosexual couples … 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.”

He added that he failed to see anything inherently wrong in recognising a same-sex marriage approved overseas, or how observing Hong Kong’s matrimonial laws could legitimately justify discrimination based on sexual orientation.

We were not asking for special treatment. We simply wanted to be treated fairly and with dignity

Leung said the court’s decision had significant implications. “The government is the biggest employer. The whole of Hong Kong will follow [this decision],” he said.

He urged the government to take the opportunity to review its policies instead of waiting to be legally challenged, a process he described as stressful, expensive and time consuming.

“We were not asking for special treatment. We simply wanted to be treated fairly and with dignity,” he said, adding that the court had “recognised and rectified a fundamental unfairness”.

The bureau said it would examine the judgment in detail with the Department of Justice to decide what it should do next. The Equal Opportunities Commission said there was a need for the government to review existing policies to ensure the protection of sexual minorities’ rights.

A permanent Hong Kong resident, Leung joined the Immigration Department in 2003 and met Adams in 2005. The two tied the knot on April 18, 2014 in New Zealand.

He ran into problems with the bureau when he tried to update his marital status after his wedding, prompting the legal challenge that centred on the Civil Services Regulations, which state that officers’ benefits can extend to their spouses.

Leung was not allowed to extend the benefits to his husband, which he argued violated the city’s Basic Law and Bill of Rights.

Solicitor Mark Daly, whose firm Daly & Associates handled the case, said the judgment contained words that marked “rare judicial recognition” of lesbian, gay, bisexual and transgender rights in the city.

“It is a small step forward,” he said, calling on the government, as the city’s biggest employer, to act as a role model.

But Leung’s challenge against the Inland Revenue Department failed.

After getting married, Leung had also tried to update his marital status with the department, but was told a same-sex marriage was not valid under the laws that govern taxation in Hong Kong.

Chow ruled that Leung failed in that challenge partly because a provision in the Inland Revenue Ordinance states clearly that a marriage is between a man and woman.

The tax Leung had to pay, however, was not affected by the status.