GRSJ224/Discrimination based on sexual orientation in Hong Kong

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The "Rainbow flag" represents the LGBTQ community since 1908's. 6 of the rainbow colors are on the flag, representing different meanings.

Discrimination based on sexual orientation is the a type of discrimination, which occurs when a person treat another person differently because the another person has different sexual orientation. Back in 1994, the UN Human Rights Committee (HRC) first recognized LGBTQ as a human right in the famous Toonen v Australia case.[1] This was a big milestone in the way of eradicating discrimination based on sexual discrimination, but such discrimination still persists in different societies today. Before 1997, the handover of Hong Kong sovereignty to China, the city was colonized by British, who brought Western values and English to Hong Kong people. Thanks to their colonization, the today global city was a mixture of both Western culture and traditional Chinese values. This thread focuses on the development of LGBTQ and the situation of discrimination based on sexual orientation in Hong Kong.

Background

According to American Psychological Association, sexual orientation is a relative concept. [2] In other words, to which sex a person is attracted is not a definitive idea, but is how much you are attracted to one sex. Sexual orientation is a Which sexual orientation you "fits in" also depends on your gender identity, not your biological sex. For example, if your gender identity is female, even though you are biological male, you are considered heterosexual if you like men.[3]

In Hong Kong, over 92% of the population are Chinese.[4] Many people adhere to the major traditional Chinese values "Confucianism", and one of the characteristics of Confucianism is heterosexual couples as the foundation of the society.[5] In the past, homosexuality was considered as taboo and unacceptable in Chinese society. Thanks to the proliferation of universal values like equity and human rights, homosexuality is more acceptable than before. However, Hong Kong is still considered a transitional Chinese society in which people still live with these previously established values.[5]

Law related to discrimination based on sexual orientation and LGBTQ rights in Hong Kong

Regarding sexual discrimination, "The Hong Kong Bill of Rights" and the constitutional document of Hong Kong's "The Basic Law" protect people with different sexes from being discriminated or harmed. These two laws state that people of all sexes can enjoy the rights the law protects as everyone does, despite the fact that the former law is only applicable to the government. The "Sex Discrimination Ordinance" also states that sexual discrimination is illegal and people of all sexes must be treated equally.

However, there is no law specifically protects LGBTQ rights or people with different sexual orientations against discrimination in Hong Kong. Although having homosexual sex was decriminalized in 1991, and being LGBTQ is not illegal, same-sex marriage is also not legalized. The only country in Asia where LGBTQ couples can get married legally is Taiwan, but non-Taiwanese LGBTQ couples cannot register due to current laws. Many members of the community in Hong Kong continue to challenge the current system through lawsuits and judicial reviews. In the latest case "MK v Government of HKSAR"[6], applicant "MK" challenged the government of Hong Kong that same-sex marriage or other ways for same-sex couples to be legal partners should also be allowed by the current constitution and laws. Unfortunately, "MK" lost the case in October 2019, because marriage in current laws only represents the union of a man and a woman. In other word, same-sex marriage is not guaranteed in the laws. However, the judge also mentioned that legalizing same-sex marriage is not against the current law, which does not say that same-sex marriage is illegal. This gives hope to the LGBTQ community in Hong Kong for having same-sex marriage.

Law against discrimination based on sexual orientation does not exist as well, even though there are many opinions that demand the government to pass such law to protect LGBTQ community. The closest law would be "Sex Discrimination Ordinance", which, however, only criminalizes sexual discrimination, not discrimination based on sexual orientation.

The future of establishing laws against discrimination based on sexual orientation in Hong Kong

The only code that recommends companies and institutions to stop discrimination based on sexual orientation in offices is the non-binding "Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation", which is not mandatory for them to obey. In addition to fighting for same-sex marriage legalization, LGBTQ community in Hong Kong also fights for such law. Back in 1994 and 1997, there was discussion about laws against discrimination based on sexual orientation, including Equal Opportunities Bill 1994[7] and The Equal Opportunities (Family Responsibility, Sexuality and Age) Bill[8] in the former Legislative Council, but these 2 bills were all banned by the legislators.[9] After that, the government has not done anything on the matter.

The Equal Opportunities Commission (EOC) is a statutory body in Hong Kong which promotes sexual, racial, family status and disability status equity, and eradicates discrimination. In November 16th, 2019, the EOC Chairman Ricky Chu said the Commission will take action to end 24-year discussion about sexual orientation discrimination ordinance and present the bill to the Legislative Council for consideration in a very short time.[10] This is certainly a big milestone in the way of Hong Kong developing as a all-inclusive society.

Public perception towards different sexual orientations

There is a big change in how Hong Kong people think of people with sexual orientations other than heterosexuality. In general, LGBTQ community are more and more acceptable in Hong Kong, despite its dominant Confucianism culture. Early in 1996, when the former Legislation Council is debating on The Equal Opportunities (Family Responsibility, Sexuality and Age) Bill, the British Hong Kong Government has conducted a study on how the society thought of the LGBTQ community.[11] The survey revealed that out of 10 marks, the average mark Hong Kong people support homosexuality and bisexuality was 3.4.[7] Moreover, 85% of the Hong Kong citizens opposed the legislation of sexual orientation discrimination law. According to these result, the LGBTQ community was not so favorable, although the question design and the wording of the survey was "inherently flawed" and biased so that the legislation of The Equal Opportunities (Family Responsibility, Sexuality and Age) Bill would not be supported by the public.[7]

Ten years later, in 2006, Home Affairs Bureau of the Hong Kong government hired MVA Hong Kong Limited to conduct a research on how acceptable homosexuals were.[12] According to the result, much more people accept homosexuals than in the 1996 survey. Although about one-third of the respondents did not support the legislation of sexual orientation discrimination law, nearly 30% of the respondents supported the idea. The acceptance of homosexuals was also high, with more than 75% of the respondents accepting homosexual co-workers, friends and neighbor, while the acceptance rate of homosexual teachers (around 60%) and especially family members (40%) were much lower. Even though, It was clear that support for the LGBTQ community was much stronger over the years. The need for sexual orientation discrimination law did not decrease,and people who opposed the law were lesser.

In 2016, after another 10 years, the EOC with The Chinese University of Hong Kong conducted a survey on people's opinion towards the LGBTQ community and law against discrimination based on sexual orientation, gender identity and intersex status.[13] The result was encouraging. More than half of the respondents supported that people of different sexual orientations, gender identities and intersex status should be protected by law from being discrimination, and over 90% of respondents aged between 18 and 24 supported the idea. Same-sex marriage or civil union was not that acceptable, with only less 40% of respondents supporting the idea. Regarding acceptance of the LGBTQ community, however, the acceptance rate (around 80% to 90%) was much higher, in terms of employment, education, goods provision, house rental and memberships. Therefore,we can see a general trend in which many and many people support the LGBTQ community and LGBTQ community.

How the LGBTQ community thinks of discrimination based on sexual orientation in Hong Kong

The 2016 EOC reports also cover how the LGBTQ people think of how good or bad discrimination based on sexual orientation is in Hong Kong. Despite small sample size, 100% of the respondents who have LGBTQ identity believe that discrimination based on sexual orientation is common or very common. Only 2 % of LGBTQ respondents thought they were never discriminated, despite common discrimination. Discrimination also occurs in different fields such as employment, education, good and services, renting places and government institutions.

While we can see a trend that the society is more inclusive and more and more people do not oppose, if not support, the LGBTQ community, the LGBTQ community still thinks discrimination against them is severe and serious. Life chances of these people are limited because of their sexual orientation. According to the report, it also states that LGBTQ people are, for example, less employed or their access to education is negatively affected.[13]

Education

Currently, sex education in both primary and secondary education, curriculum of which is set by the government, is not updated since 1997. In other words, the curriculum of sex education is outdated and fails to keep up with today situation. According to the Education Bureau, the 1997 "Guidelines on Sex Education in Schools" is the curriculum for schools to set up their own sex education.[14] It mostly covers sexes, gender, biology of sex etc., but it only covers sexual orientation and sexual orientation discrimination to a very small extent. It does not mention concepts like LGBTQ, intersex or same-sex marriage, nor what discrimination based on sexual orientation, what to do if students are discriminated, nor how to eradicate it. The rise of LGBTQ rights and identity has been happening in Hong Kong, but the curriculum fails to reflect such social change.

Even though the Guidelines is not mandatory, the Guideline plays an important role in helping schools to design relevant courses. Many organizations and legislators have been urging the Bureau to change the curriculum. In 2018, the EOC issued "Submission on Review of Sex Education in Schools", which analyzes what can be improved in current sex education, pointing out that the Bureau should update the Guideline after reviewing.[15] In the document, the EOC also pointed out that the Guideline should have "more emphasis being given to power relationship, gender stereotypes and gender bias which lead to sexual harassment and abuse" and include LGBTQ issues. However, until now, the Education Bureau still does not make any change.

Reference

  1. ↑ Saiz, Ignacio (2004). "Bracketing Sexuality: Human Rights and Sexual Orientation: A Decade of Development and Denial at the UN". Health and Human Rights. 7: 48–80.
  2. ↑ American Psychological Association (2008). "Answers to Your Questions For a Better Understanding of Sexual Orientation & Homosexuality".
  3. ↑ American Psychological Association. "Answers to Your Questions ABOUT TRANSGENDER PEOPLE, GENDER IDENTITY, AND GENDER EXPRESSION".
  4. ↑ The Hong Kong Government. "The Demographics : Ethnic Groups".
  5. ↑ 5.0 5.1 Lam, Pansy (2016). "Chinese culture and coaching in Hong Kong". International Journal of Evidence Based Coaching and Mentoring. 14: 57–73.
  6. ↑ Department of Justice, Government of HKSAR. "MK v Government of HKSAR HCAL 1077/2018; [2019] HKCFI 2518" (PDF).
  7. ↑ 7.0 7.1 7.2 Phil C. W., Chan (2005). "The lack of sexual orientation anti-discrimination legislation in Hong Kong: breach of international and domestic legal obligations". The International Journal of Human Rights. 9:1: 69–106.
  8. ↑ Former Legislative Council. "Bills Committee on the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill, Equal Opportunities (Race) Bill, Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and Family Status Discrimination Bill (Agenda)".
  9. ↑ Legislative Council, PRC HKSAR. "1996/97 年度條例草案".
  10. ↑ Chan, Ho-him (16 Nov 2019). "Thousands show up for pride parade on LGBT rights in Hong Kong, as some wear masks and chant anti-government protest slogans". South China Morning Post.
  11. ↑ Home Affairs Bureau, Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation: A Consultative Paper (Hong Kong: Government Printer, 1996).
  12. ↑ Home Affairs Bureau, Survey on Public Attitudes towards Homosexuals (Hong Kong: Government Printer, 2006)
  13. ↑ 13.0 13.1 Gender Research Centre of the Hong Kong Institute of Asia-Pacific Studies of The Chinese University of Hong Kong (2016). "Report on Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status" (PDF). The Equal Opportunities Commission.
  14. ↑ Research Office, Legislative Council Secretariat (January 9, 2018). "Sexuality education" (PDF). Legislative Council of Hong Kong SAR.
  15. ↑ The Equal Opportunities Commission, HK (September 2018). "Submission on Review of Sex Education in Schools" (PDF).
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