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7 Questions and Answers on the Immigration Officer’s Court Case on Same-sex Spouse Benefits
1. What are the background facts and cause of action of this case?
The Applicant, Mr Leung Chun-kwong, is a Senior Immigration Officer who self-identified as a gay person. In April 2014, Mr Leung married his same-sex partner, Mr Adams, in New Zealand. (Judgment paragraph 5-7)
In December 2014, Mr Leung was informed by the Secretary for the Civil Service that since same-sex marriage did not fall within the definition of “marriage” under the Marriage Ordinance, Mr Leung’s husband would not be entitled to benefits available to spouses of civil servants under the Civil Service Regulations (the “Benefit Decision”) (Judgment paragraph 15).
Similarly, In June 2015, Mr Leung was informed by the Commissioner of Inland Revenue that since same-sex marriage was not regarded as a valid marriage for the purposes of the Inland Revenue Ordinance (the “IRO”), the online tax filing system would not accept a taxpayer to enter a person with the same sex as his/her spouse (the“Tax Decision”) (Judgment paragraph 18).
Mr Leung applied for judicial review against the Benefits Decision and the Tax Decision, which was heard before Mr Justice Anderson Chow at the Court of First Instance of the High Court (the“Judge”).
2. How did the Court rule on the Decision on Benefits by the CSB?
The Government argued that the true eligibility criterion for the spousal benefits is “legal martial status”. However, the Judge took the view that since the laws of Hong Kong did not recognize same-sex marriages and Mr Leung could not be expected to enter into a heterosexual marriage due to his sexual orientation, the Benefits Decision amounts to differential treatment at least indirectly based on sexual orientation (Judgment paragraphs 47-54).
Such differential treatment was not justified. The Judge could see nothing illegal or unlawful to accord the same spousal benefits to homosexual couples who are legally married under foreign laws. He also could not see how the denial of spousal benefits to homosexual couples would serve the purpose of protecting the institution of the tradition family. (Judgment paragraphs 65-66). The Benefit Decision was thus held to be unlawful discrimination against Mr Leung based on his sexual orientation (Judgment paragraph 78).
3. How did the Court rule on the Decision on Taxation by the IRD?
The Commissioner of Inland Revenue only determined that same-sex marriage was not a marriage for the purpose of the IRO (Judgment paragraph 81). The subject judicial review was a not a challenge of the definition of “marriage” in the IRO, but a review of the determination by the Commissioner of Inland Revenue on the interpretation of “marriage” under the IRO. The said interpretation was correct as a matter of law (Judgment paragraph 86-87).
The current judicial review did not touch upon whether the equality provisions in the Basic Law or the Hong Kong Bill of Rights would require a different interpretation to be given to the term “marriage” in the IRO. The Judge expressed no view on this issue (Judgment paragraph 88).
4. Why the Court gave different decisions on the Decision on Benefits and the Decision on Taxation?
The Judge was aware that under common law and constitutional purposes, “marriage” means heterosexual marriage (Judgment paragraph 85). The difference between the Benefits Decision and the Tax Decision is that, the latter was merely an interpretation of the term “marriage” in the IRO, on which the Judge took the view that the Government was correct in the interpretation sense. However, the former was to use such interpretation of the term “marriage” in a policy, making the policy discriminatory and hence unlawful. If Mr Leung had directly challenged that the term “marriage” should not have only included heterosexual marriage in the IRO, would the result have been different?
5. Has the Court approved same-sex marriage?
The Judge observed that whether to recognise same-sex marriage was a social policy decision for the legislature but not the court. Further, so far he could see nothing in the Basic Law or the Hong Kong Bill of Rights which required that Hong Kong law must recognise same-sex marriage. (Judgment paragraphs 91(2)(a) and (b)). Therefore, the current court decision has not approved same-sex marriage.
6. What is “indirect discrimination”?
Indirect discrimination can be illustrated in the following example. A company requires that an employee who may be promoted as manager must be of the height of 1.75 m or above, and such requirement applies to all employees. However, practically, the number of female employees who can satisfy such requirement may be much less than male. Without a reasonable justification, such requirement constitutes “indirect discrimination” based on sex. According to the Judge’s reasoning, the Benefits Decision can be seen as indirect discrimination based on sexual orientation.
7. Does the court decision affect the employee benefit policies in private companies?
The court decision is concerned with the Basic Law and Hong Kong Bill of Rights. As such, the court decision will only be binding on the Government. Of course, if the Government could implement the court decision to provide the same spousal benefits to same-sex couples married overseas, this can set an example to encourage private companies to do the same. In order for private companies or employees to provide the same benefits to same-sex couples married overseas, it is still essential to enact anti-discrimination laws on sexual orientation.
Article was originally published in Stand News on 2 May 2017