Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong

NORTH CAROLINA JOURNAL OF NORTH CAROLINA JOURNAL OF

INTERNATIONAL LAW INTERNATIONAL LAW

Volume 44 Number 2 Article 4

Spring 2019

Human Rights and Substantive Equality: Prospects for Same-Sex Human Rights and Substantive Equality: Prospects for Same-Sex

Relationship Recognition in Hong Kong Relationship Recognition in Hong Kong

Kelley Loper

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Kelley Loper,

Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in

Hong Kong

, 44 N.C. J. INT'L L. 273 (2019).

Available at: https://scholarship.law.unc.edu/ncilj/vol44/iss2/4

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Human Rights and Substantive Equality: Prospects

for Same-Sex Relationship Recognition in Hong Kong

Kelley Loper

†

I. Introduction ............................................................... 273

II. LGBT Rights in International Law ............................ 280

III. The Salience of the Right to Equality ........................ 287

IV. Substantive Equality and LGBT Rights in Hong Kong

................................................................................... 297

A. Impact of International and Comparative Human

Rights Law .......................................................... 297

B. Substantive Equality ........................................... 299

1. Prohibited grounds of discrimination ............ 300

2. Meaning of discrimination ............................. 301

a) De facto effects and indirect discrimination

302

b) Test for justification of differential treatment

304

3. Dignity ........................................................... 306

V. Prospects for Same-sex Relationship Recognition in

Hong Kong ................................................................ 308

VI. Conclusions ............................................................... 315

I. Introduction

This Article considers judicial approaches to the adjudication of

the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT)

† Associate Professor, Director, Centre for Comparative and Public Law, Co-Director,

LLM in Human Rights Programme, Faculty of Law, The University of Hong Kong. I am

grateful to Holning Lau for his helpful comments on an earlier draft and to Elizabeth Lui

and Lili Ullmann for their assistance.

Some have critiqued the LGBT acronym as overly narrow since it may not account

for cultural variabilities and not all sexual orientation or gender identity minorities

necessarily identify as LGBT. See Holning Lau, Sexual Orientation and Gender Identity

Discrimination, 2 COMP. DISCRIMINATION L. 1, 4 (2018). For the sake of convention and

consistency, however, this Article uses “LGBT” throughout and sometimes “sexual

274 N.C. J. INT'L L. [Vol. XLIV

persons in the Hong Kong Special Administrative Region of the

People’s Republic of China (Hong Kong). Hong Kong provides a

notable case study of litigation strategies and court responses in a

jurisdiction open to international human rights law. Sodomy was

decriminalized in 1991 under the former British colonial regime,

and, since 2006, Hong Kong courts have decided a number of cases

concerning a range of issues including transgender marriage,

different ages of consent for vaginal and anal intercourse,

other

discriminatory criminal provisions,

restrictions on television

broadcasts about relationships between gay men,

the rights of

incarcerated transgender persons,

and the rights of same-sex

couples.

Other cases are still working their way through the system

and future challenges are anticipated as advocates continue to

pursue a persistent litigation strategy.

orientation” and “gender identity” when referring to particular protected characteristics or

prohibited grounds of discrimination.

See W v. Registrar of Marriages, [2013] 16 H.K.C.F.A.R. 112 (C.F.A.) (H.K.); W

v. Registrar of Marriages, [2012] H.K.C. 88 (C.A.) (H.K.); W v. Registrar of Marriages,

[2010] 6 HKC 359 (C.F.I.) (H.K.).

See Leung v. Sec’y for Justice, [2006] 4 H.K.L.R.D. 211 (C.A.) (H.K.); Leung v.

Sec’y of Justice, [2005] 3 H.K.L.R.D. 657 (C.F.I.) (H.K.).

See Sec’y for Justice v. Yau Yuk Lung Zigo & Lee Kam Chuen, [2007] 10

H.K.C.F.A.R. 335 (C.F.A.) (H.K.); Sec’y for Justice v. Yau Yuk Lung & Lee Kam Chuen,

[2006] 4 H.K.L.R.D. 196 (C.A.) (H.K.).

See Cho Man Kit v. Broad. Auth., [2008] H.K.E.C. 783 (C.F.I.) (H.K.).

See Navarro Luigi Recasa v. Comm’r of Correctional Services, [2018] 4

H.K.L.R.D. 38 (C.F.I.) (H.K.).

See QT v. Dir. of Immigration, [2018] 21 H.K.C.F.A.R. 324 (C.F.A.) (H.K.);

Leung Chun Kwong v. Sec’y for the Civil Serv., [2018] 3 H.K.L.R.D. 84 (C.A.) (H.K.).

The Court of Final Appeal is expected to consider the last two issues concerning civil

service spousal benefits and joint tax filing on appeal in 2019.

See MK v. Government of the HKSAR [2019] H.K.C.U. 53 (C.F.I.); See e.g.,

Raquel Calvarho, Three Transgender Men Challenge Hong Kong Policy Requiring Full

Sex Change before They are Legally Considered Male, SOUTH CHINA MORNING POST (Jan.

9, 2018), https://www.scmp.com/news/hong-kong/community/article/2127525/three-

transgender-men-challenge-hong-kong-policy-requiring [https://perma.cc/54DV-9T3Q];

Chris Lau, Two Gay Men Mount First Legal Challenges to Hong Kong Laws Banning

Same-sex Marriage, with Court Giving Their Applications Green Light to Proceed, SOUTH

CHINA MORNING POST (Jan. 3, 2019), https://www.scmp.com/news/hong-kong/law-and-

crime/article/2180551/two-gay-men-mount-first-legal-challenges-hong-kong-laws

[https://perma.cc/5FN8-WXA4]; Chris Lau & Kimmy Chung, Woman Takes

Unprecedented Step to Advance LGBT Cause in Hong Kong and Sues Government over

Civil Partnerships Ban, SOUTH CHINA MORNING POST (Aug. 24, 2018),

2019 INTERNATIONAL HUMAN RIGHTS LAW 275

With some exceptions, in most of these decisions the courts

have at least partially dismantled discriminatory policies. At the

same time, however, government and legislative efforts have lagged

behind.

For example, although international human rights bodies

have regularly called on the Hong Kong authorities to introduce

anti-discrimination legislation on the grounds of sexual orientation

and gender identity, the government has thus far resisted.

The

limited policy changes that have occurred have been in direct

response to judicial review, and even then there have been delays

on certain issues.

Based on a study of these judgments, read in the context of

developments in international human rights law, this Article

considers prospects for upcoming challenges to the lack of access

for same-sex couples to legal recognition in the form of same-sex

marriage or civil partnerships. Several factors could influence the

trajectory of these cases and LGBT rights in Hong Kong generally.

First, local public opinion has shifted toward greater acceptance of

LGBT rights in recent years,

possibly due to rapidly evolving

https://www.scmp.com/news/hong-kong/community/article/2161287/woman-takes-

unprecedented-step-advance-lgbt-cause-hong-kong [https://perma.cc/Y7GX-YKWZ].

See Carole J. Petersen & Kelley Loper, Equal Opportunities Law Reform in Hong

Kong: The Impact of International Norms and Civil Society Advocacy, in REFORMING LAW

REFORM: PERSPECTIVES FROM HONG KONG AND BEYOND (Michael Tilbury et al. eds.,

2014). Amy Barrow and Joy Chia observe that “[g]iven the inhospitable legislative

context, strategic litigation has proven to be the primary vehicle for legal reforms crucial

to the advancement of LGBT rights.” See Amy Barrow & Joy L. Chia, Pride or Prejudice:

Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong, 46 H.K.

L.J. 89 (2016).

See, e.g., Concluding observations of the U.N. Committee on Economic, Social

and Cultural Rights, People’s Republic of China (including Hong Kong and Macao), ¶ 78,

U.N. Doc. E/C.12/1/Add.107 (May 13, 2005).

In response to the Court of Final Appeal’s decision in W v Registrar of

Marriages, which recognized the right of a post-operative transgender woman to marry

in her acquired gender, the government established an Inter-departmental Working

Group on Gender Recognition (IWG) in January 2014 “to consider whether it is

necessary to introduce legislation and incidental administrative measures to deal with

issues concerning gender recognition in Hong Kong.” See Home, INTER-DEPARTMENTAL

WORKING GROUP ON GENDER RECOGNITION, https://iwggr.gov.hk/eng/index.html

[https://perma.cc/LH77-LEDA]. Since then, the IWG has completed a comparative study

and conducted a public consultation in 2017, but it has not yet produced a report or made

any publicly available recommendations to the government.

See Lau, supra note 1; see also Holning Lau, Charles Lau, Kelley Loper, & Yiu-

tung Suen, Support in Hong Kong for Same-sex Couples’ Rights Grew Over Four Years

276 N.C. J. INT'L L. [Vol. XLIV

global trends. Studies indicate that rights-friendly law reform, such

as recognition of same-sex marriage, is more likely to occur in

societies with more tolerant attitudes.

Developments in international human rights law in this area

could also generate further momentum.

In Hong Kong, with its

relatively open society and common law legal system that relies on

precedent and permits the courts to cite comparative authority,

international legal innovations should continue to shape the

outcomes of future cases. The judiciary’s proclivity to rely on, and

be persuaded by, international human rights law suggests prospects

(2013-2017): Over Half of People in Hong Kong Now Support Same-Sex Marriage, in

BRIEFING PAPER, CENTRE FOR COMPARATIVE AND PUBLIC LAW, UNIVERSITY OF HONG

KONG FACULTY OF LAW; UNC LEGAL STUDIES RESEARCH PAPER (2018); Kelley Loper,

Holning Lau, Charles Lau, Yiu-tung Suen, Public Attitudes Towards Transgender People

and Anti-Discriminatory Legislation, CTR. FOR COMP. AND PUB. L., (December 2017,

revised June 2018).

See generally Claire Felter & Danielle Renwick, Backgrounder on Same-Sex

Marriage Global Comparisons, COUNCIL ON FOREIGN REL. (Dec. 8, 2017),

https://www.cfr.org/backgrounder/same-sex-marriage-global-comparisons

[https://perma.cc/CS7C-ZQSW]; ENZE HAN & JOSEPH O’MAHONEY, BRITISH

COLONIALISM AND THE CRIMINALIZATION OF HOMOSEXUALITY: QUEENS, CRIME AND

EMPIRE 82–86 (1st ed., 2018) (explaining, in their study of the criminalization of

homosexuality in former British colonies, that factors influencing decriminalization have

included openness to the outside world, access to information about global trends, and

acceptance of international human rights norms. They also point out that decriminalization

of same-sex conduct in Hong Kong was influenced by the introduction of the Bill of Rights

Ordinance in 1991 in response to public concerns about the future protection of human

rights in the run up to the territory’s return to Chinese sovereignty in 1997).

See Carole J. Petersen, International Law and the Rights of Gay Men in Former

British Colonies: Comparing Hong Kong and Singapore, 46 H.K. L.J. 109, 109–29 (2016);

Carole J. Petersen, Values in Transition: The Development of the Gay and Lesbian Rights

Movement in Hong Kong, 19 LOY. L.A. INT’L & COMP. L.J. 337 (1997); Carole J. Petersen,

Sexual Orientation and Gender Identity in Hong Kong: A Case for the Strategic Use of

Human Rights Treaties and the International Reporting Process, 14 ASIAN-PAC. L. &

POL’Y J. 28, 28–83 (2013); Barrow & Chia, supra note 9; Joy L. Chia & Amy Barrow,

Inching towards Equality: LGBT Rights and the Limitations of Law in Hong Kong, 22 WM.

& MARY J. WOMEN & L. 303 (2016); Phil C. W. Chan, The Lack of Sexual Orientation and

Anti-discrimination Legislation in Hong Kong: Breach of International and Domestic

Legal Obligations, 9 THE INT’L J. OF HUM. RTS. 199, 199–208 (2005).

XIANGGANG JIBENFA art. 84 (H.K.) [Hong Kong Basic Law] (promulgated by

Order No. 26, Pres. of China, Apr. 4, 1990, effective July 1, 1997) [hereinafter Basic

Law] (although the Basic Law is a national law enacted by the National People's Congress

of the People’s Republic of China, it has the status of superior law in Hong Kong and is

considered Hong Kong’s constitutional instrument).

2019 INTERNATIONAL HUMAN RIGHTS LAW 277

for progressive responses to issues such as gender recognition, civil

unions, and/or same-sex marriage. International and comparative

human rights law has had a significant influence on the Hong Kong

courts’ adjudication of constitutional rights generally

and LGBT

issues specifically. The domestic incorporation of the International

Covenant on Civil and Political Rights (ICCPR)

has reinforced

judges’ tendency to draw on international and comparative human

rights jurisprudence for guidance.

In addition to comparative

domestic cases, courts have cited interpretive materials produced by

human rights treaty monitoring bodies, such as the United Nations

(UN) Human Rights Committee

and judgments rendered by

regional judicial organs, mainly the European Court of Human

Rights (ECHR).

Another key factor is how the courts continue to elaborate an

emerging substantive equality doctrine. This doctrine is grounded

See, e.g., Sir Anthony Mason, The Place of Comparative Law in Developing the

Jurisprudence on the Rule of Law and Human Rights in Hong Kong, 37 H.K. L.J. 299

(2007); Albert H.Y. Chen, International Human Rights Law and Domestic Constitutional

Law: Internationalisation of Constitutional Law in Hong Kong, 4 NTU L. REV. 237

(2009); Simon N. M. Young, Constitutional Rights in Hong Kong’s Court of Final Appeal,

27 CHINESE (TAIWAN) Y.B. INT’L L. & AFF. 67, 81–82 (2011); David S. Law, Judicial

Comparativism and Judicial Diplomacy, 163 U. PA. L. REV. 927 (2015).

See International Covenant on Civil and Political Rights art. 10(1), adopted Dec.

19, 1966, U.N.T.S. 171 [hereinafter ICCPR].

See Young, supra note 16 (noting that from 1997-2007, 75% of all of the Court of

Final Appeal’s citations to case authorities in rights cases were to non-Hong Kong cases,

48% were decisions made by U.K. courts, and 8% were citations to decisions of

international courts and tribunals. Young observes that the jurisprudence of the European

Court of Human Rights was especially influential and most of the U.K. case authorities

involved the 1998 Human Rights Act which incorporates the European Convention on

Human Rights into British law).

The independent, expert body tasked with monitoring states’ implementation of

the ICCPR. Hong Kong is party to seven core U.N. Human Rights instruments including

the International Convention on the Elimination of all Forms of Racial Discrimination, the

ICCPR, the International Covenant on Economic, Social and Cultural Rights, the

Convention on the Elimination of all forms of Discrimination against Women, the

Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment

or Punishment, the Convention on the Rights of the Child, and the Convention on the

Rights of Persons with Disabilities. Each of these treaties has its own monitoring body that

reviews states parties’ periodic reports, makes recommendations in concluding

observations, and issues other interpretive materials including general comments and

views (jurisprudence) on individual communications.

Petersen, supra note 14, at 48–50.

278 N.C. J. INT'L L. [Vol. XLIV

in international norms which mandate attention to real disadvantage

and remedies for discriminatory impact.

In contrast to formal de

jure “equality before the law,” substantive equality takes context

into account and requires states to identify and eliminate laws,

policies, and practices that have de facto discriminatory effects.

argue that the right to equality and non-discrimination, when

understood in this substantive sense, has particular relevance for

furthering LGBT rights. This is especially true in jurisdictions

where formal distinctions in law based on sexual orientation—such

as anti-sodomy provisions—have been removed and constitutional

issues now primarily involve relationship and family rights. Much

of the discrimination facing LGBT persons in these environments is

less direct and more multidimensional, often intersecting with

marital status, gender, and other aspects of identity. It also involves

stigma, prejudicial attitudes, and structures that may require

transformative, positive measures.

The jurisprudence examined in this Article illustrates how these

factors are playing out in Hong Kong as the courts prepare to

consider one of the first same-sex marriage cases in Asia.

Hong

Kong’s constitutional equality doctrine has developed

predominantly, though not exclusively, in the course of LGBT

rights adjudication and reflects interpretations by international

human rights authorities. As such, the Hong Kong experience

serves as an instructive example of the potential of global human

rights norms, chiefly the right to equality, to advance LGBT claims

in the domestic sphere. It could have comparative value for other

jurisdictions where courts also participate in and are influenced by

a growing global judicial conversation and consensus on LGBT-

related norms.

To set the stage for subsequent analysis of the salience of the

right to equality, Part II summarizes the international legal position

on other rights that have applied to LGBT claims. International law

has increasingly elaborated the relevance of core global and

See BEVERLEY BAINES & RUTH RUBIO-MARIN, INTRODUCTION TO THE GENDER OF

CONSTITUTIONAL JURISPRUDENCE 13–14 (Beverley Baines & Ruth Rubio-Martin eds.,

2004).

See Jennifer Hainfurther, A Rights-Based Approach: Using CEDAW to Protect the

Human Rights of Migrant Workers, 24 AM. U. INT’L L. REV. 843, 862 (2009).

See Lau, supra note 8. In May 2017, the Taiwan Constitutional Court ruled that

same-sex couples have a constitutional right to marry in Taiwan.

2019 INTERNATIONAL HUMAN RIGHTS LAW 279

regional human rights instruments, despite the absence of explicit

references to sexual orientation or gender identity. Part III then

examines the content of the right to substantive equality and non-

discrimination. It draws in part on interpretive materials produced

by human rights treaty monitoring bodies to clarify the elements of

a substantive equality theory and the legal tools that might be

helpful to achieving its aims. While these materials are not strictly

speaking binding on states, they are regarded as highly persuasive.

Part IV provides a brief overview of Hong Kong’s constitutional

framework and the significance of international human rights law.

It then identifies features of a budding substantive equality doctrine

in Hong Kong. In line with the approach of the international bodies

discussed in Parts II and III, Hong Kong courts have recognized

sexual orientation as a particularly invidious ground of

discrimination. They have also employed a strict proportionality

test when determining the validity of justifications for distinctions

based on sexual orientation and gender identity. They have also

accepted that fulfillment of the right to equality does not necessarily

require equal treatment and, in fact, may sometimes necessitate

differential treatment. This insight, along with its corollary that

facially neutral measures can in some circumstances amount to

unconstitutional discrimination, opens up possibilities.

Furthermore, the courts have acknowledged a concept of dignity

that they could build on to address the harms that LGBT persons

frequently experience, thus strengthening equality’s concern with

impact.

Part V then considers the implications of this analysis of

substantive equality for resolving LGBT rights issues going

forward. The focus is on relationship rights, especially prospects

for recognition of same-sex marriage and/or civil partnerships in

upcoming challenges.

At the same time, it reflects on the

likelihood that certain international bodies— which have produced

reasoning the Hong Kong courts have found persuasive—could

revisit their current positions on same-sex marriage. A reading of

the same-sex marriage opinions of the ECHR and the Human Rights

Committee reveals an inadequate grasp of the capacity of

substantive equality. In contrast, in a 2017 advisory opinion, the

Inter-American Court of Human Rights (IACHR) embraced

See Lau, supra note 8.

280 N.C. J. INT'L L. [Vol. XLIV

substantive equality in support of same-sex marriage.

The

untapped potential of other international human rights enforcement

mechanisms, however, coupled with innovations in the ECHR

jurisprudence, suggests strategies for progressing LGBT rights in

Hong Kong and beyond.

II. LGBT Rights in International Law

The following provides a brief summary of the international

legal position on the rights of LGBT persons as interpreted by

global and regional human rights monitoring bodies and judicial

organs.

This area of jurisprudence is advancing rapidly as these

institutions and domestic courts are asked to resolve questions about

the extent and nature of LGBT rights. As Langford points out, the

numbers of LGBT rights cases brought before international bodies

has grown considerably since the early 1990s and even more rapidly

since 2010.

At the same time, claimants’ rate of success has also

increased.

By definition, human rights must be guaranteed to everyone

regardless of sexual orientation or gender identity, simply by virtue

of being human.

None of the general or specialized global or

regional human rights instruments,

however, explicitly mention

these markers of identity. Various enforcement bodies, such as the

State Obligations Concerning Change of Name, Gender Identity, and Rights

Derived from a Relationship between Same-Sex Couples (Interpretation and Scope of

Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American

Convention on Human Rights), Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A)

No. 24 (Nov. 24, 2017) [hereinafter Advisory Opinion OC-24/17].

This overview considers only a sample of issues. It is not intended to be a complete

account of relevant international norms which is beyond the scope of this Article.

See Malcolm Langford, Same-Sex Marriage in Polarized Times: Revisiting Joslin

v. New Zealand (HRC), in INTEGRATED HUMAN RIGHTS IN PRACTICE 119, 122 (Eva Brems

and Ellen Desmet eds., 2017).

Id. (noting that “[t]he data is based on our Sexual and Reproductive Rights

Lawfare Database.”).

See, e.g., What are Human Rights?, U.N. OFF. HIGH COMM’R FOR HUM. RTS.,

https://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[https://perma.cc/3ZK9-YKPF].

These include the general and specialized core United Nations (U.N.) human rights

treaties and regional instruments such as the European Convention on Human Rights, see

infra note 37, the Inter-American Convention on Human Rights, and the African Charter

on Human and People’s Rights.

2019 INTERNATIONAL HUMAN RIGHTS LAW 281

ECHR, the UN Human Rights Committee, the UN Committee on

Economic, Social and Cultural Rights, and the IACHR, have

nevertheless clarified that international human rights standards

apply in the LGBT context. They have elaborated on state

obligations and associated violations such as the criminalization of

homosexual sex, denial of family and relationship rights to same-

sex couples, discrimination in access to economic, social and

cultural rights, and the failure to recognize a change of gender. Soft

law documents, like the Yogyakarta Principles,

have also been

influential and cited by regional and domestic courts.

Especially

helpful provisions when addressing the types of harm frequently

affecting LGBT people include: the rights to be free from torture,

other forms of cruel, inhuman or degrading treatment, and arbitrary

deprivation of life; the rights to freedom of expression and

association; and the rights to privacy, family life, and marriage.

Given the wide range of issues and space constraints, this summary

is not exhaustive. It contemplates, however, a sampling of these

norms in order to provide a point of comparison for the subsequent

examination of the significance of the right to equality and non-

discrimination.

The Committee against Torture, the monitoring body for the

Convention against Torture and other forms of Cruel, Inhuman or

See The Yogyakarta Principles: Principles on the Application of International

Human Rights Law in Relation to Sexual Orientation and Gender Identity, 7 (2007),

available at http://

www.yogyakartaprinciples.org/principles_en.pdf [https://perma.cc/569U-LJRA]

[hereinafter Yogyakarta Principles]; see also The Yogyakarta Principles Plus 10:

Additional Principles and State Obligations on the Application of International Human

rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex

Characteristics to Complement the Yogyakarta Principles, (2007), available

at http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-

2.pdf [https://perma.cc/P34Q-8KA8] [hereinafter Yogyakarta Plus 10].

For a discussion of these principles and their significance, see, e.g., Michael

O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human

Rights Law: Contextualising the Yogyakarta Principles, 8 HUM. RTS L. REV. 207 (2008);

see also David Brown, Making Room for Sexual Orientation and Gender Identity in

International Human Rights Law: An Introduction to the Yogyakarta Principles, 31 MICH.

J. INT’L L. 821 (2010); See generally Andrew Park, Yogyakarta Plus 10: A Demand for

Recognition of SOGIESC, 44 N.C. J. OF INT’L L. 223 (2019) (discussing the creation and

subsequent impact of the Yogyakarta Principles).

See, e.g., Advisory Opinion OC-24/17, supra note 25; see also Naz Found. v. Gov’t

of N.C.T. of Delhi, WP(C) No.7455/2001, Del. H.C. (India).

282 N.C. J. INT'L L. [Vol. XLIV

Degrading Treatment or Punishment, has expressed concerns about

the ill-treatment of persons based on their sexual orientation or

gender identity.

The ECHR has also decided related cases.

The

Committee against Torture has explained that Article 3 of the

Convention requires states to refrain from expelling or returning

individuals to countries where substantial grounds exist for

believing they would be in danger of torture because of their sexual

orientation.

The Human Rights Committee and the ECHR have

taken similar positions when interpreting an implicit duty of non-

refoulement (non-return) in Articles 6 and 7 of the ICCPR

and

For example, in its concluding comments on Iraq’s state report, the Committee

expressed concern “at reliable reports of attacks, some of which have resulted in deaths,

against individuals perpetrated on grounds of their real or perceived sexual orientation or

gender identity.” Comm. Against Torture [CAT], Concluding Observations of the Comm.

Against Torture: Seeking Accountability and Demanding Change: A Report on Women’s

Rights Violations in Iraq, ¶ 25, U.N. Doc. CAT/C/IRQ/CO/1 (2015).

See, e.g., M.C. and C.A. v. Romania, Eur. Ct. H.R. (2016) (deciding that the

inadequate investigation of violent attacks on participants in a gay pride parade, was a

violation of Article 3 of the European Convention on Human Rights). See also Identoba

and Others v. Georgia, 66 Eur. Ct. H.R. 17 (2015).

Article 3(1) provides that “No State Party shall expel, return (‘refouler’) or

extradite a person to another State where there are substantial grounds for believing that

he would be in danger of being subjected to torture.” Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3(1), Dec. 10, 1984,

1465 U.N.T.S 85.

In its views on several individual communications, the Committee Against Torture

has held that States violated article 3 for denying asylum to LGBT persons at risk of torture

because of their sexual orientation if returned to their counties of origin. See, e.g., Stewart

v. Canada, Views, Human Rights Comm., 58th Sess., No. 538/1993, U.N. Doc.

CCPR/C/58/D/538/1993 (1996); see also Comm. Against Torture [CAT], 62nd Sess.,

General Comment No.4 (2017) on the Implementation of Article 3 of the Convention in the

Context of Article 22, U.N. Doc. CAT/C/GC/4 (2018).

See Human Rights Comm. [HRC], 2187th Sess., General Comment No. 31: The

Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N.

Doc. CCPR/C/21/Rev.1/Add.13 (May. 26, 2004) (“States parties must not extradite,

deport, expel or otherwise remove a person from their territory, where there are substantial

grounds for believing that there is a risk of irreparable harm, such as that contemplated by

articles 6 and 7 of the Covenant.”). See also M.I. v Sweden, Human Rights Comm., 108th

Sess., No. 2149/2012, U.N. Doc. CCPR/C/108/D/2149/2012 (2013). See generally M.K.H.

v Denmark, Views, Human Rights Comm., 117th Sess., No. 2462/2014, U.N. Doc.

CCPR/C/117/D/2462/2014 (2016) (involving a claim by an asylum seeker from

Bangladesh who feared torture or other forms of cruel, inhuman or degrading treatment if

returned to Bangladesh).

2019 INTERNATIONAL HUMAN RIGHTS LAW 283

Article 3 of the European Convention on Human Rights.

With

regard to transgender rights, the Committee Against Torture has

suggested that requiring a transgender person to undergo surgery or

forced sterilization before obtaining legal recognition of their

acquired gender could amount to cruel, inhuman or degrading

treatment.

The rights to be free from torture, inhumane treatment and

arbitrary deprivation of life, however, only apply to particularly

egregious violations, and the threshold for determining what

constitutes such conduct is substantial.

Although states cannot

derogate from these obligations

and the prohibition against torture

is absolute, these norms have limited capacity to address many of

the other harms experienced by LGBT persons.

Convention for the Protection of Human Rights and Fundamental Freedoms, Nov.

4, 1950. 213 U.N.T.S. 222. See, e.g., I.K. v. Switzerland (no. 21417/17); M.E. v. Sweden

(no. 71398/12).

See CAT, 1368th Sess., Concluding observations on the fifth periodic report of

China with respect to Hong Kong, China, U.N. Doc. CAT/C/CHN-HKG/CO/5 (Feb. 2,

2016). In its concluding observations the Convention against Torture expressed concern

“about reports that transgender persons are required to have completed sex-reassignment

surgery, which includes the removal of reproductive organs, sterilization and genital

reconstruction, in order to obtain legal recognition of their gender identity” and

recommended that Hong Kong “[t]ake the necessary legislative, administrative and other

measures to guarantee respect for the autonomy and physical and psychological integrity

of transgender and intersex persons, including by removing abusive preconditions for the

legal recognition of the gender identity of transgender persons, such as sterilization.” See

generally HOLNING LAU, GENDER RECOGNITION AS A HUMAN RIGHT (Nov. 28, 2018)

(forthcoming chapter for The Cambridge Handbook on New Human Rights: Recognition,

Novelty, Rhetoric) (discussing the right to bodily integrity—sometimes derived from the

right to privacy and from the right to be free from torture or other forms of cruel, inhuman

or degrading treatment or punishment—as one basis for a right to gender recognition).

See Pretty v. United Kingdom, 35 Eur. Ct. H.R. 1, 33 (2002) (“As regards the types

of ‘treatment’ which fall within the scope of article 3 of the Convention, the court’s case

law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual

bodily injury or intense physical or mental suffering. Where treatment humiliates or

debases an individual showing a lack of respect for, or diminishing, his or her human

dignity or arouses feelings of fear, anguish or inferiority capable of breaking an

individual’s moral and physical resistance, it may be characterized as degrading and also

fall within the prohibition of article 3. The suffering which flows from naturally occurring

illness, physical or mental, may be covered by article 3, where it is, or risks being,

exacerbated by treatment, whether flowing from conditions of detention, expulsion or

other measures, for which the authorities can be held responsible.”).

See HRC, 1950th Sess., General Comment No. 29: Article 4: Derogations during

a State of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).

284 N.C. J. INT'L L. [Vol. XLIV

The rights to freedom of expression and peaceful assembly have

also been invoked. For example, the Human Rights Committee held

that the Russian Federation’s denial of a human rights activist’s

applications to organize gay pride parades and picket in front of the

Iranian Embassy in Moscow to protest against Iran’s execution of

homosexuals violated Article 21 of the ICCPR.

In another case,

the Committee found that the Russian Federation contravened an

activist’s right to freedom of expression, along with her right to

equality and nondiscrimination, when she was arrested for

displaying signs that read “Homosexuality is normal” and “I am

proud of my homosexuality” near a secondary school.

The ECHR

similarly decided that laws prohibiting the promotion of

homosexuality violated the right to freedom of expression in

conjunction with the right to non-discrimination.

The rights to privacy and family life in Article 8 of the European

Convention on Human Rights

and Article 17 of the ICCPR

have,

Alekseev v. Russian Federation, Views, Human Rights Comm., 109th Sess., No.

1873/2009, U.N. Doc. CCPR/C/109/D/1873/2009 (Dec. 2, 2013).

Fedotova v. Russian Federation, Views, Human Rights Comm., 106th Sess., No.

1932/2010, U.N. Doc. CCPR/C/106/D/1932/2010 (Nov. 30, 2012) (finding a violation of

Article 19, freedom of expression, in conjunction with Article 26, equality and non-

discrimination).

Bayev and Others v. Russia, Eur. Ct. H.R. 12 (2017) (holding that the laws

incompatible with the values of a democratic society, discriminatory, served no public

interest, and reinforced stigma and prejudice); see Kaos GL v. Turkey, Eur. Ct. H.R.

(2016); but see Vejdeland and Others v. Sweden, Eur. Ct. H.R. (2012) (holding that a ban

the distribution of leaflets which are offensive to homosexuals to a secondary school is an

appropriate limit on the right to freedom of expression); see, e.g., Ljubjana v. Slovenia,

Eur. Ct. H.R. (2014) (allowing a greater scope for expression that might be offensive).

Article 8 provides:

(1) Everyone has the right to respect for his private and family life, his home and

his correspondence.

(2) There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a democratic

society in the interests of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the protection of health

or morals, or for the protection of the rights and freedoms of others.

Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950,

213 U.N.T.S. 22.

ICCPR Article 17 provides:

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home or correspondence, nor to unlawful attacks on his honour and

2019 INTERNATIONAL HUMAN RIGHTS LAW 285

either on their own or in conjunction with equality and non-

discrimination, played a particularly important role. The right to

privacy has formed the basis of successful challenges to the

criminalization of consensual same-sex relations;

the discharge

from the Royal Air Force based on homosexuality;

different ages

of consent for same-sex relations;

lack of parental rights

and

permission to adopt a child;

and denial of relationship rights such

as succession to the tenancy

and pension

of a deceased partner.

The failure to provide civil unions or other forms of registered

partnerships has also, more recently, engaged the right to family

life.

The acceptance of same-sex relationships within the notion

of “family life” in these later cases is significant and allows the

Court to address rights that arguably fall more squarely within

public life and are not limited to the private sphere. The rights to

privacy and family life have also supported the recognition of

reputation.

(2) Everyone has the right to the protection of the law against such interference or

attacks.

ICCPR, supra note 17. For an interpretation of this provision see, HRC, 32nd Sess.,

General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy,

Family, Home and Correspondence, and Protection of Honour and Reputation, U.N. Doc.

HRI/GEN/1/Rev.1 (Apr. 8, 1988).

See Dudgeon v. United Kingdom, 4 Eur. Ct. H.R. 149 (ser. B) (1982); Norris v.

Ireland, 13 Eur. Ct. H.R. 186 (1988); Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993);

see generally Toonen v. Australia, Views, Human Rights Comm., 50th Sess., No.

488/1992, U.N. Doc. No. CCPR/C/WG/44/D/488/1992 (1994) [hereinafter Toonen v.

Australia] (holding that criminal provisions in Tasmania violated both the right to privacy

and the right to equality and non-discrimination).

See Smith and Grady v. United Kingdom, 29 Eur. Ct. H.R. 493 (1999).

See L. and V. v. Austria, Eur. Ct. H.R., App. Nos. 39392/98, 39829/98 (2003).

See Salgueiro da Silva Mouta v. Portugal, Eur. Ct. H.R., App. No.33290/96 (1999).

Fretté v. France, Eur. Ct. H.R. App. No. 36515/97 (2002); see also E.B. v. France,

Eur. Ct. H.R., App. No. 43546/02 (2008).

See Karner v. Austria, Eur. Ct. H.R., App. No. 40016/98 (2003).

See Young v. Australia, Views, Human Rights Comm., 78th Sess., No. 941/2000,

U.N. Doc. CCPR/C/78/D/941/2000 (Sept. 18, 2003); see also X v. Colombia, Views,

Human Rights Comm., 89th Sess., No. 1361/2005, U.N. Doc. CCPR/C/89/D/1361/2005

(Mar. 30, 2007).

See Vallianatos and Others v. Greece, Eur. Ct. H.R., App. Nos. 29381/09,

32684/09 (2013); see also Oliari and Others v. Italy, Eur. Ct. H.R., App. Nos. 18766/11,

36030/11 (2015).

286 N.C. J. INT'L L. [Vol. XLIV

gender identity

and other related claims.

While the issue of same-sex marriage remains controversial,

there have been signs of evolution. The IACHR has been

particularly progressive and, at the time of writing, is the only

international human rights enforcement body that has

acknowledged a right to same-sex marriage.

Notably the IACHR

opinion was based on an expansive interpretation of the rights to

family life in Articles 11(2)

and 17(1)

of the American

See Lau, supra note 38; Goodwin v. United Kingdom, Eur. Ct. H.R., App. No.

28957/95 (2002) (holding that the right of a transgender woman to marry in her acquired

gender based on the right to privacy and the right to marriage). Goodwin did not challenge

the lack of same-sex marriage in the United Kingdom at that time.

In Hong Kong a post-operative transgender woman also successfully challenged a

policy that did not recognize her status as a woman for the purposes of marriage. See W v.

Registrar of Marriages, [2013] 16 H.K.C.F.A.R. 112 (C.F.A.) (H.K.). The Court of Final

Appeal favorably cited Goodwin when reaching this decision. See e.g., id. at ¶ 76.

G v. Australia, Views, Human Rights Comm., 119th Sess., No. 217/2012, U.N.

Doc. CCPR/C/119/D/2172/2012 (June 15, 2017) [hereinafter G v. Australia] (holding that

Australia’s denial of a transgender woman’s request to change her birth certificate unless

she got divorced was an arbitrary interference in the enjoyment of her privacy and family

rights).

In relation to the right to privacy, the Committee also noted that jurisprudence on

“‘privacy’ under article 17 ‘refers to the sphere of a person’s life in which he or she can

freely express his or her identity, be it by entering into relationships with others or alone.’”

The Committee explained that “its established jurisprudence” clarifies “that this includes

protection of a person’s identity, such as their gender identity.” Id.; but see Hämäläinen v.

Finland, Eur. Ct. H.R., App. No. 37359/09 (2014). Hämäläinen v. Finland is discussed in

more detail in Part III below.

See Advisory Opinion OC-24/17, supra note 25.

Article 11 sets out the right to privacy. Sub-paragraph 2 provides that: “No one

may be the object of arbitrary or abusive interference with his private life, his family, his

home, or his correspondence, or of unlawful attacks on his honor or reputation.” American

Convention on Human Rights art. 11, “Pact of San Jose,” Organization of American States

(OAS), Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR].

Article 17 sets out the rights of the family: Sub-paragraph 1 provides that: “[t]he

family is the natural and fundamental group unit of society and is entitled to protection by

society and the state.” Id. at art. 17.

In its Advisory Opinion, the Court explained:

Regarding Article 17(2) of the Convention [which sets out the right to marry and

raise a family], the Court considers that although it is true that, taken literally, it

recognizes the ‘right of men and women of marriageable age to marry and to raise

a family,’ this wording does not propose a restrictive definition of how marriage

should be understood or how a family should be based. In the opinion of this Court,

Article 17(2) is merely establishing, expressly, the treaty-based protection of a

2019 INTERNATIONAL HUMAN RIGHTS LAW 287

Convention on Human Rights and a substantive reading of the right

to equality and non-discrimination.

Although the ECHR and the

Human Rights Committee have so far upheld states’ lack of same-

sex marriage, they have also introduced innovations and left the

door open for a possible reconsideration especially in light of global

trends.

While all of these norms, either on their own or in combination,

have served to progress LGBT rights, their specificity may limit

their capacity to address a broader range of claims. As considered

in Part III, equality and non-discrimination has a more extensive

reach. As both a principle and a right, it cuts across other treaty

provisions and can support a more comprehensive framework for

remedying the harms often experienced by LGBT persons.

III. The Salience of the Right to Equality

In some cases that arguably involve discriminatory treatment on

the basis of sexual orientation or gender identity, international and

domestic courts have nevertheless failed to employ a right to

equality and non-discrimination. Other times, although invoking

equality, they have applied an overly formal discrimination analysis

and missed an opportunity to further develop a substantive equality

doctrine. This limits the potential of human rights law to tackle a

fuller array of rights violations which LGBT persons commonly

confront and which frequently involve discrimination on the

grounds of sexual orientation, gender identity, or a combination of

characteristics. Better actualization of rights requires a more

comprehensive assessment of correlated discriminatory effects

beyond formal classifications. This can also enhance the

precedential value of cases decided on the basis of equality and non-

discrimination. For example, Lau observes that striking down laws

that criminalize homosexual conduct on the basis of discrimination

specific model of marriage. In the Court’s opinion, this wording does not

necessarily mean either than this is the only form of family protected by the

American Convention.

See Advisory Opinion OC-24/17, supra note 25, at ¶ 182.

“States must ensure full access to all the mechanisms that exist in their domestic

laws, including the right to marriage, to ensure the protection of the rights of families

formed by same-sex couples, without discrimination in relation to those that are formed

by heterosexual couples.” Id. at ¶ 218.

See infra Part V.

288 N.C. J. INT'L L. [Vol. XLIV

“affirms a nondiscrimination principle that can shape subsequent

cases” including those “concerning issues such as partnership and

marriage rights.”

Basing such a decision on privacy grounds,

however, “may not have the same downstream effects.”

In order to circumvent any dangers arising from a formal

methodology, however, such an equality principle must be

substantive. As Fredman remarks, the United States Supreme Court

refrained from an equality analysis when ruling that anti-sodomy

laws in Texas were unconstitutional to avoid a possible “leveling

down” solution.

Indeed, formal equal treatment could still allow

prohibitions of conduct (i.e. sodomy) by both different-sex and

same-sex partners.

Substantive equality, however, demands

remedies that would dismantle such laws and ensure consistency

with human dignity.

Bearing this in mind, this discussion examines the content of the

right to equality and non-discrimination in international law and

explains its implications for the advancement of LGBT rights. It

notes that substantive equality, according to interpretations by UN

human rights treaty bodies, requires a number of legal tools that can

assist in ameliorating de facto disadvantage. For example, an

expansive approach to the prohibited grounds of discrimination that

is non-exhaustive and includes intersectional realities can more

accurately reflect the complexity of identity. An equality doctrine

must prohibit indirect as well as direct discrimination including

measures that have a discriminatory effect even without intent.

Courts should also recognize that differential treatment and

discrimination are not necessarily the same thing; in other words,

special measures may be consistent with equality while seemingly

neutral policies may in fact discriminate. Therefore, a robust

evaluation of the legitimacy of differences is essential. Dignity is

also an important principle for diagnosing the consequences of

stigma and prejudice and is therefore a key component of

substantive equality in international law. The following focuses on

the legal position in global (UN) human rights law because of the

Lau, supra note 1, at 41.

Id.

SANDRA FREDMAN, DISCRIMINATION LAW 10 (2011) (citing Justice Kennedy’s

language in Lawrence v. Texas, 123 S. Ct. 2472 (2003)).

Id.

2019 INTERNATIONAL HUMAN RIGHTS LAW 289

special status of the ICCPR in Hong Kong constitutional law

and

the applicability of other international human rights treaties.

The

treaty-monitoring bodies for several instruments have, over time,

clarified the meaning of substantive equality.

Nearly all of the global and regional human rights treaties

express a right to equality and non-discrimination. The two general

UN human rights treaties, the ICCPR and the International

Covenant on Economic, Social and Cultural Rights (ICESCR),

which, along with the Universal Declaration of Human Rights,

constitute the International Bill of Rights, obligate states to realize

all of the rights enumerated in these instruments without

discrimination of any kind followed by a non-exhaustive list of

prohibited “grounds.”

Regional human rights instruments

articulate similar duties.

These are subordinate norms since a

See infra Part IV.

These include, for example, the International Covenant on Economic, Social, and

Cultural Rights (ICESCR), the Convention on the Elimination of all forms of

Discrimination against Women (CEDAW), and the Convention on the Rights of Persons

with Disabilities (CRPD).

International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993

U.N.T.S. 3 [hereinafter ICESCR].

Article 2(1) of the ICCPR states,

Each State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognized in

the present Covenant, without distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion, national or social origin, property,

birth or other status.

ICCPR, supra note 17, at art. 2(1).

Article 2(2) of the ICESCR provides that “[t]he States Parties to the present

Covenant undertake to guarantee that the rights enunciated in the present Covenant will be

exercised without discrimination of any kind as to race, colour, sex, language, religion,

political or other opinion, national or social origin, property, birth or other status.”

ICESCR, supra note 67, at art. 2(2).

For example, Article 14 of the European Convention on Human Rights states:

The enjoyment of the rights and freedoms set forth in this Convention shall be

secured without discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national or social origin,

association with a national minority, property, birth or other status.” Article 1

of the American Convention on Human Rights provides that “[t]he States

Parties to this Convention undertake to respect the rights and freedoms

recognized herein and to ensure to all persons subject to their jurisdiction the

free and full exercise of those rights and freedoms, without any discrimination

for reasons of race, color, sex, language, religion, political or other opinion,

290 N.C. J. INT'L L. [Vol. XLIV

discrimination claim cannot be made unless the issues in a case are

somehow connected to another right in the treaty.

Article 26 of

the ICCPR

and Article 24 of the American Convention on Human

Rights,

however, are autonomous, standalone provisions which

allow for application beyond the particular rights in the treaties

themselves.

Global and regional human rights bodies have clarified that

states must ensure substantive, as well as formal, equality. They

have elaborated on the elements of a substantive equality doctrine

and the legal tools mentioned above in a number of ways.

For example, according to the Committee on Economic, Social

and Cultural Rights, the list of protected categories (race, sex, etc.)

is illustrative, non-exhaustive, and should be broadly construed.

national or social origin, economic status, birth, or any other social condition.

ACHR, supra note 57, at art. 14.

The European Court of Human Rights explains:

As the Court has consistently held, Article 14 complements the other substantive

provisions of the Convention and its Protocols. It has no independent existence since

it has effect solely in relation to ‘the enjoyment of the rights and freedoms’

safeguarded by those provisions. Although the application of Article 14 does not

presuppose a breach of those provisions – and to this extent it is autonomous – there

can be no room for its application unless the facts at issue fall within the ambit of one

or more of the latter.

Schalk and Kopf v. Austria, Eur. Ct. H.R., App. No. 30141/04 (2010) at ¶ 89.

“All persons are equal before the law and are entitled without any discrimination

to the equal protection of the law. In this respect, the law shall prohibit any discrimination

and guarantee to all persons equal and effective protection against discrimination on any

ground such as race, colour, sex, language, religion, political or other opinion, national or

social origin, property, birth or other status.” ICCPR, supra note 17, at art. 26.

“All persons are equal before the law. Consequently, they are entitled, without

discrimination, to equal protection of the law.” ACHR, supra note 57, at art. 24.

See F. H. Zwaan-de Vries v. the Netherlands, Views, Human Rights Comm., 10th

Sess., No. 182/1984, ¶ 12.3, U.N. Doc. No. A/42/40 (July 23, 1985) (stating that “[Article]

26 does not merely duplicate the guarantee already provided for in article 2 but provides

in itself an autonomous right. It prohibits discrimination in law or in fact in any field

regulated and protected by public authorities. Article 26 is therefore concerned with the

obligations imposed on States parties in regard to their legislation and the application

thereof. Thus, when legislation is adopted by a State party, it must comply with the

requirement of article 26 that its content should not be discriminatory. In other words, the

application of the principle of non-discrimination contained in article 26 is not limited to

those rights which are provided for in the Covenant.”).

The Committee on Economic, Social and Cultural Rights explains:

The inclusion of ‘other status’ indicates that this list is not exhaustive and other

2019 INTERNATIONAL HUMAN RIGHTS LAW 291

Although sexual orientation and gender identity are not explicitly

included, the Human Rights Committee, the Committee on

Economic, Social and Cultural Rights, and the European Court of

Human Rights have read these characteristics into other grounds

such as “sex”

and “other status.”

States must also prohibit

discrimination on multiple or intersectional factors

and on the

basis of association or perception.

A formal comparator

evaluation based on one ground—often required in domestic

discrimination law—can ignore the contextual realities of

disadvantage that might be present in a given society. In other

words, “[e]liminating discrimination in practice requires paying

sufficient attention to groups of individuals which suffer historical

or persistent prejudice instead of merely comparing the formal

treatment of individuals in similar situations.”

Two cases involving equivalent facts—Hämäläinen v. Finland

grounds may be incorporated in this category.” It adds that “[t]he nature of

discrimination varies according to context and evolves over time. A flexible approach

to the ground of “other status” is thus needed in order to capture other forms of

differential treatment that cannot be reasonably and objectively justified and are of a

comparable nature to the expressly recognized grounds in article 2, paragraph 2.

These additional grounds are commonly recognized when they reflect the experience

of social groups that are vulnerable and have suffered and continue to suffer

marginalization.

Comm. on Econ., Soc., and Cultural Rights, 42nd Sess., General Comment 20: Non-

Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2), at ¶¶ 15, 27, U.N.

Doc. E/C.12/GC/20 (May 25, 2009) [hereinafter General Comment 20].

See Toonen v. Australia, supra note 46.

See, e.g., General Comment 20, supra note 74 (stating that “‘[o]ther status’ as

recognized in article 2, paragraph 2, includes sexual orientation … In addition, gender

identity is recognized as among the prohibited grounds of discrimination.”). The

Committee cited its previous General Comments (14 and 15) as well as the Yogyakarta

Principles.

“Some individuals or groups of individuals face discrimination on more than one

of the prohibited grounds, for example women belonging to an ethnic or religious minority.

Such cumulative discrimination has a unique and specific impact on individuals and merits

particular consideration and remedying.” Id. at ¶ 17.

“Membership also includes association with a group characterized by one of the

prohibited grounds (e.g. the parent of a child with a disability) or perception by others that

an individual is part of such a group (e.g. a person has a similar skin colour or is a supporter

of the rights of a particular group or a past member of a group).” Id. at ¶ 16.

Id. at ¶ 8.

Hämäläinen v. Finland, Eur. Ct. H.R., App. No. 37359/09 (2014).

292 N.C. J. INT'L L. [Vol. XLIV

(decided by the ECHR) and G v. Australia

(decided by the Human

Rights Committee) —illustrate how formal or substantive

comparator analyses can produce different outcomes. In both cases,

the applicants challenged a requirement that transgender persons be

unmarried in order to obtain official gender recognition in their

acquired gender.

In Hämäläinen v. Finland, the ECHR held that there had been

no breach of Article 8 of the European Convention on Human

Rights (privacy and family life) taken in conjunction with Article

14 (non-discrimination) since, in the Court’s view, a transgender

person was not similarly situated to a cissexual person.

This

identification of a comparator based on a single characteristic—in

this case a cissexual woman—in order to prove differential

treatment is bluntly formal.

The dissenting judges in the case

made this point when observing that:

The difficult question … concerns the identification of the group

to which the applicant and her spouse can be compared. The

applicant argues that she has been treated differently vis-à-vis

cissexuals, with regard to the refusal to issue her with a new

identity card, and also vis-à-vis heterosexuals, with regard to the

protection of her marriage to a heterosexual spouse. We regret

that the majority rejects these issues simply on the ground that the

applicant’s situation is not similar enough to that of cissexuals

…

… we are not convinced that the applicant has not been subjected

to discrimination contrary to Article 14 of the Convention taken in

conjunction with Article 8 and consider that the Court’s examination

should have gone into more depth in this regard.

In 2017, the Human Rights Committee, on the other hand, held

that requiring a transgender woman to divorce before changing her

G v. Australia, supra note 55.

See Hämäläinen v. Finland, at ¶¶ 111–12.

See Peter Dunne & Dr. Jule Mulder, Beyond the Binary: Towards a ‘Third’ Sex

Category in Germany?, 19 GER. L.J. 638, 627–48 (2018).

Hämäläinen v. Finland, at ¶¶ 18, 19.

Id. at ¶ 21.

2019 INTERNATIONAL HUMAN RIGHTS LAW 293

sex on her birth certificate violated Article 26 of the ICCPR.

The

Committee interpreted the grounds of discrimination broadly,

recognizing the intersection of marital and transgender status. It

explained that “differential treatment between married and

unmarried persons who have undergone a sex affirmation procedure

and who request to amend their sex on their birth certificate is not

based on reasonable and objective criteria, and therefore constitutes

discrimination …”

The Committee essentially accepted her

contention that she had not been granted equal protection

“compared with a non-transgender woman or compared with an

unmarried transgender woman.” She had, therefore, faced

discrimination “on the basis of her marital status, her transgender

identity and/or a combination of both. Both fall within the concept

of ‘other status’ in article 26.”

Commentators have pointed out that an overly narrow notion of

identity, according to a formal, “grounds-based” methodology,

could reinforce socially constructed identities and create

assimilationist tendencies.

This critique, however, does not take

into account the more recent elaborations of a substantive,

intersectional theory. Traditional non-discrimination examinations

have indeed emphasized single characteristics—being gay, lesbian,

or transgender—and require comparisons with others who are not

members of the same group, but who are otherwise similarly

situated. This is often problematic, especially when a comparator

is not evident. Substantive equality’s attention to the complexity of

identity by addressing discrimination on more than one ground in

combination, however, can mitigate these risks and strengthen the

value of an equality and non-discrimination doctrine.

See G v. Australia, supra note 55.

Id. at ¶ 7.15.

Id. at ¶ 5.1.2.

See FREDMAN, supra note 63, at 11 (explaining the assimilationist tendencies of a

formal “equal treatment” approach to non-discrimination. The need to find a similarly

situated comparator “who does not share the characteristic in question . . . assumes that

individuals can be considered in the abstract apart from their colour, religion [etc.] . . . the

basic premise, namely that there exists a ‘universal individual’ is deeply deceptive. Instead

the apparently abstract comparator is clothed with the attributes of the dominant gender,

culture, religion, ethnicity, or sexuality . . . The result of the assumption of the ‘universal

individual’ is therefore to create powerful conformist pressures.”); see also Lau, supra

note 1, at 29 (discussing debates about identitarianism).

294 N.C. J. INT'L L. [Vol. XLIV

The Human Rights Committee has also clarified that

discrimination encompasses discriminatory effects (indirect

discrimination) as well as purpose.

It confirmed that equal

treatment is not always required

and that differential treatment

may not be discriminatory if the “criteria for such differentiation are

reasonable and objective and if the aim is to achieve a purpose

which is legitimate under the Covenant.”

Indeed, according to the

Committee, “the principle of equality sometimes requires …

affirmative action in order to diminish or eliminate conditions

which cause or help to perpetuate discrimination prohibited by the

Covenant.”

States must also report on “problems of

discrimination in fact, which may be practiced either by public

authorities, by the community, or by private persons or bodies” as

well as discrimination in law.

The Committee on Economic, Social, and Cultural Rights has

further built on these principles. It confirmed that “[m]erely

addressing formal discrimination will not ensure substantive

equality.” States are therefore obligated to “immediately adopt the

necessary measures to prevent, diminish and eliminate the

conditions and attitudes which cause or perpetuate substantive or de

facto discrimination …”

The meaning of discrimination includes

both its “direct and indirect forms” and “indirect discrimination

refers to laws, policies or practices which appear neutral at face

value, but have a disproportionate impact on the exercise of

Covenant rights as distinguished by prohibited grounds of

discrimination.”

Like the Human Rights Committee, the

Committee on Economic, Social and Cultural Rights has also

informed states that eliminating “substantive discrimination” may

require the adoption of “special measures to attenuate or suppress

conditions that perpetuate discrimination” as long as they “represent

reasonable, objective and proportional means to redress de facto

HRC, 37th Sess., General Comment 18: Non-discrimination, at ¶ 7, U.N. Doc.

HRI/GEN/1/Rev.9 (Nov. 10, 1989) [hereinafter General Comment 18].

Id. at ¶ 8.

Id. at ¶ 13.

Id. at ¶ 10.

See id. at ¶ 9.

See General Comment 20, supra note 74, at ¶¶ 8–10.

Id.

2019 INTERNATIONAL HUMAN RIGHTS LAW 295

discrimination.”

The Committee on the Elimination of Discrimination against

Women,

has explained that CEDAW also requires substantive

equality.

Its General Recommendation on special measures states

that “a purely formal legal or programmatic approach is not

sufficient.”

100

Indeed, “[u]nder certain circumstances, non-identical

treatment of women and men will be required.”

101

Furthermore,

“[t]he lives of women and men must be considered in a contextual

way, and measures adopted towards a real transformation of

opportunities, institutions and systems.”

102

The Committee on the Rights of Persons with Disabilities, the

monitoring body for the UN Convention on the Rights of Persons

with Disabilities (CRPD), has reconceptualized substantive equality

as “inclusive” equality.

103

It sets out a four-dimensional framework

embracing “a substantive model of equality and extends and

elaborates on the content of equality.”

104

The four elements of the

model include:

(a) a fair redistributive dimension to address socioeconomic

disadvantages; (b) a recognition dimension to combat stigma,

stereotyping, prejudice and violence and to recognize the dignity

of human beings and their intersectionality; (c) a participative

dimension to reaffirm the social nature of people as members of

social groups and the full recognition of humanity through

Id. at ¶ 9.

The monitoring body for the UN Convention on the Elimination of all Forms of

Discrimination against Women (CEDAW).

See Comm. on the Elimination of all Forms of Discrimination Against Women

[CEDAW Committee], General Recommendation No. 25, Article 4, Paragraph 1, of the

Convention on the Elimination of all Forms of Discrimination Against Women (Temporary

Special Measures), at ¶ 8, U.N. Doc. HRI/GEN/1Rev.7 (2004), available at

http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommenda

tion%2025%20(English).pdf [https://perma.cc/KV67-ULAU].

100

Id. at ¶ 8.

101

Id. at ¶ 8.

102

Id. at ¶ 10.

103

See Comm. on the Rights of Persons with Disabilities, 19th Sess., General

Comment No. 6 on Equality and Non-Discrimination, U.N. Doc. No. CRPD/C/GC/6 (Apr.

26, 2018) [hereinafter General Comment No. 6].

104

Id.

296 N.C. J. INT'L L. [Vol. XLIV

inclusion in society; and (d) an accommodating dimension to

make space for difference as a matter of human dignity.

105

The Committee further emphasized the significance of dignity

to a substantive equality framework: “[e]quality and non-

discrimination are among the most fundamental principles and

rights of international human rights law. Because they are

interconnected with human dignity, they are the cornerstones of all

human rights.”

106

Although here the Committee is interpreting equality in the

Convention on the Rights of Persons with Disabilities in particular,

these principles can be generally applied since they are consistent

with the other treaty bodies’ deliberations and are likely to influence

the right to equality in international law more broadly. Indeed,

human rights bodies have attempted (although not always

successfully) to harmonize standards and avoid fragmentation of

norms across treaties.

107

The emphasis on disadvantage, effect,

inclusion, and dignity could be especially helpful for considering

LGBT persons’ experiences of discrimination, which are often not

directly or explicitly based on sexual orientation but involve indirect

discrimination and violations of dignity.

108

Once again, the various legal tools that can be utilized to

promote a substantive equality model as articulated in these

materials include: 1) expansion of the grounds of discrimination

including multiple or intersectional discrimination, 2) prohibition of

indirect discrimination, 3) sensitivity to context and impact when

determining the validity of justifications for differential treatment,

105

Id. This reflects Sandra Fredman’s model of substantive equality, see FREDMAN,

supra note 63, at 25–33, which includes four overlapping aims. She refers to these as: (1)

The redistributive dimension (breaking the cycle of disadvantage; (2) The recognition

dimension (respect and dignity); (3) The transformative dimension (accommodating

difference and structural change); and (4) The participative dimension (social inclusion

and political voice). She explains that substantive equality aims “to promote respect for

the equal dignity and worth of all” and that it is “the dimension of equality which speaks

to our basic humanity.” Id. at 19–25, 28.

106

General Comment No. 6, supra note 103, at ¶ 4.

107

See, e.g., Int’l Law Comm’n, Fragmentation of International Law: Difficulties

Arising from the Diversification and Expansion of International Law, at 25, UN Doc

A/CN.4/L.682 (Apr. 13, 2006) (explaining the “strong presumption against normative

conflict” in international law).

108

See Lau, supra note 1, at 41.

2019 INTERNATIONAL HUMAN RIGHTS LAW 297

and 4) developing the principle of dignity. As noted above, these

tools and the scope of substantive equality arguably enhance its

precedential value when compared with other rights, such as privacy

and family life.

109

Part IV first examines the significance of international and

comparative human rights law within the Hong Kong legal system.

It then reflects on how the concept of equality in international law

has influenced the emergence of a substantive equality doctrine in

Hong Kong and judicial approaches to LGBT rights claims.

IV. Substantive Equality and LGBT Rights in Hong Kong

A. Impact of International and Comparative Human Rights

Law

As mentioned above, courts have frequently applied

comparative case law, including international human rights

standards, when reviewing challenges to government policies that

limit fundamental human rights. Hong Kong, a former British

colony, became a Special Administrative Region (SAR) of the

People’s Republic of China (PRC) on July 1, 1997. Hong Kong’s

constitutional document, the Basic Law, grants the SAR a high

degree of autonomy including a separate, common law legal system

and an independent judiciary. The constitutional framework also

incorporates international human rights standards. Article 39

specifies that “[t]he provisions of the [ICCPR], the [ICESCR], and

international labour conventions as applied to Hong Kong shall

remain in force and shall be implemented through the laws of the

Hong Kong [SAR].”

110

The ICCPR’s continued application to Hong

Kong since 1997, although the PRC is not a state party, is a notable

element of Hong Kong’s autonomy.

111

Hong Kong reports on its

own to the Human Rights Committee which then issues Concluding

Comments for the Hong Kong and Macau SARs only.

The Bill of Rights Ordinance,

112

a statute adopted in 1991,

113

109

See id.; Frances Hamilton, The Case for Same-Sex Marriage Before the European

Court of Human Rights, 65 J. OF HOMOSEXUALITY 1582, 1586 (2018).

110

Hong Kong Basic Law, supra note 15, at art. 39.

111

Id. at art 2.

112

Hong Kong Bill of Rights Ordinance, (1991) Cap. 383, (L.H.K.).

113

See Richard Swede, One Territory: Three Systems? The Hong Kong Bill of Rights,

298 N.C. J. INT'L L. [Vol. XLIV

essentially duplicates the text of the ICCPR and has now achieved

constitutional status. As a result, despite Hong Kong’s dualist,

common law legal system which does not permit the courts to rely

directly on international treaties unless they have been incorporated

into domestic law, the courts have frequently cited materials

produced by international and comparative judicial and quasi-

judicial institutions. The Basic Law explicitly allows the courts to

“refer to precedents of other common law jurisdictions.”

114

Judgments rendered by the Privy Council, the UK House of Lords,

and now the UK Supreme Court, have been particularly

influential.

115

After the enactment of the Bill of Rights and even before the

change of sovereignty in 1997, Hong Kong courts began referencing

international and comparative human rights jurisprudence. In one

of the earliest of these cases, R v. Sin Yau-ming,

116

concerning the

right to be presumed innocent until proven guilty, the Court of

Appeal pointed out that when interpreting the Bill of Rights, Hong

Kong courts could derive guidance from other common law

jurisdictions with a “constitutionally entrenched Bill of Rights” and

“decisions of the European Court of Human Rights” and

international human rights monitoring bodies, especially the Human

Rights Committee.

117

While submitting that these materials are not

strictly binding, they are “of the greatest assistance” and the Court

would “give to them considerable weight … in so far as they reflect

the interpretation of articles in the Covenant and are directly related

to Hong Kong legislation.”

118

The Court also explained that “the

glass through which we view the interpretation of the Hong Kong

Bill [of Rights] is a glass provided by the [ICCPR].”

119

The Court

of Appeal confirmed the importance of comparative and

44 INT’L & COMP. L. Q. 358, 359 (1995) (“[T]he Bill of Rights was adopted in 1991 in a

response to fears in Hong Kong about the looming return to Chinese sovereignty,

especially after the Chinese government’s massacre of unarmed civilians in Beijing on 4

June 1989 ending the peaceful democracy protests in Tiananmen Square.”).

114

Hong Kong Basic Law, supra note 15, at art 84.

115

See Young, supra note 16.

116

R v. Sin Yau-ming, [1992] 1 H.K.L.R. 127 (C.A.) (H.K.).

117

Id.

118

Id.

119

Id.

2019 INTERNATIONAL HUMAN RIGHTS LAW 299

international human rights jurisprudence in R v. Man Wai-keung

(No 2) (Man Wai-keung),

120

a case about the right to equality before

the courts and tribunals, and set out a test that has since provided

the basis for the development of the equality doctrine discussed

below.

Hong Kong courts are cognizant of their own contribution to a

growing transnational judicial conversation about the meaning of

constitutional rights.

121

In QT v. Director of Immigration, a case

concerning the denial of a dependent visa to the same-sex partner of

a foreign resident working in Hong Kong, the Court of Final Appeal

observed that “[t]here has been a notable convergence in the

approaches of various courts, including our own, to what constitutes

discrimination, influenced by international human rights

instruments.”

122

It then stated that “[t]he jurisprudence of the

[ECHR] and its interaction with the jurisprudence of the House of

Lords, the Privy Council and the United Kingdom Supreme Court

relating to the Human Rights Act 1998 and domestic anti-

discrimination legislation are of particular relevance in the present

case.”

123

B. Substantive Equality

This section traces the growth of a constitutional equality

120

The Queen v. Man Wai-keung, [1992] 2 H.K.C.L.R. 207 (C.A.) (H.K.) (“It was

held in R v. Sin Yau-Ming⁠ . . . that in interpreting the Hong Kong Bill of Rights, this Court

can be guided by decisions of supra-national tribunals such as the European Court of

Human Rights, and that even greater assistance can be derived from decisions of the

domestic courts in jurisdictions, such as the United States of America and Canada, which

have constitutionally entrenched Bills of Rights. It was held also, that although the Hong

Kong Bill did not contain a ‘justification’ provision similar to s. 1 of the Canadian Charter

of Rights . . . such a provision is to be implied. Finally, in addressing a challenge to a

statutory provision on the ground of inconsistency with the Bills of Rights, the court in Sin

Yau-Ming applied the rationality test and the proportionality test.”).

121

See, e.g., Melissa A. Waters, Mediating Norms and Identity: The Role of

Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 GEO.

L.J. 487 (2005); Christopher McCrudden, A Common Law of Human Rights?:

Transnational Judicial Conversations on Constitutional Rights, 20 OXFORD J.L. STUD.

499, 516–29 (2000); Michael Kirby, Transnational Judicial Dialogue,

Internationalisation of Law and Australian Judges, 9 MELB. J. INT’L L. 171 (2008).

122

See QT v. Dir. of Immigration, [2018] 21 H.K.C.F.A.R. 324, at ¶ 30 (C.F.A.)

(H.K.).

123

Id.

300 N.C. J. INT'L L. [Vol. XLIV

doctrine in LGBT rights cases in Hong Kong since 2006. It draws

on the insights about equality in international human rights law in

Part III to explore the courts’ application of legal tools that

strengthen a substantive model. It concludes that these decisions

have led to the elaboration of a fairly robust, if not quite explicit,

substantive equality doctrine that could have significant

implications for LGBT rights claims going forward, including

same-sex marriage as considered in Part V.

1. Prohibited grounds of discrimination

As discussed above, an adaptable theory that recognizes

disadvantage based on context as well as complexity when

identifying the prohibited grounds of discrimination is an element

of a substantive equality doctrine. The courts have broadly

interpreted the lack of explicit grounds in Article 25 of the Basic

Law, which simply states: “[a]ll Hong Kong residents shall be equal

before the law,” and the non-exhaustive list in Articles 1 and 22 of

the Bill of Rights, which duplicate Articles 2(1) and 26 of the

ICCPR. When determining which “grounds” are invidious, they

have relied on comparative human rights jurisprudence.

For example, in Leung v. Secretary for Justice,

124

a case

challenging different ages of consent for “buggery” and

heterosexual intercourse as elaborated below, the Court of First

Instance cited the Human Rights Committee’s views in Toonen v.

Australia.

125

This was one of the first times a Hong Kong court

recognized that sexual orientation is a constitutionally prohibited

ground of discrimination. The Court also cited “a series of

judgments of the [ECHR]” in support.

126

In the same case on appeal,

the Court of Appeal noted the government “accepted that

homosexuality was a status for the purposes of Articles 1 and 22 of

the Bill of Rights.”

127

When invalidating the directly discriminatory

offence of “homosexual buggery committed otherwise than in

private” in Secretary for Justice v. Yau Yuk Lung, the Court of Final

Appeal also confirmed that “[d]iscrimination on the ground of

124

See Leung v. Sec’y of Justice, [2005] 3 H.K.L.R.D. 657 (C.F.I.) (H.K.).

125

Id. at ¶ 45; see also Toonen v. Australia, supra note 46.

126

See Leung v. Sec’y of Justice, 3 H.K.L.R.D. at ¶ 46.

127

Id.

2019 INTERNATIONAL HUMAN RIGHTS LAW 301

sexual orientation would plainly be unconstitutional” and “sexual

orientation is within the phrase ‘other status’” in the equality

provisions in the Bill of Rights and the ICCPR.

128

In these cases, the courts were inclusive, interpreting new,

implicit, proscribed characteristics into the ICCPR’s non-

exhaustive list, in line with the human rights treaty bodies’

jurisprudence considered above. While Hong Kong courts have not

yet overtly acknowledged intersectional discrimination, their

approaches to indirect discrimination and fluid discussion of marital

status and sexual orientation in QT v. Director of Immigration

(examined below) suggest a degree of openness to this aspect of

substantive equality.

2. Meaning of discrimination

Another key feature of Hong Kong’s substantive equality

doctrine is the acknowledgement that differential treatment is not

necessarily the same as discrimination. In Man-wai Keung, the

Court of Appeal distinguished between “a discrimination, as

opposed to a distinction.”

129

It added that “given the nature of the

[Bill of Rights] … [o]ne must look to the interests of society and to

all the circumstances which the legislature had in mind when

creating what the courts find to be a distinction amounting to a

discrimination.”

130

It cited the Human Rights Committee’s General

Comment on non-discrimination to explain that equality “does not

mean identical treatment in every instance … not every

differentiation of treatment will constitute discrimination, if the

criteria for such differentiation are reasonable and objective and if

the aim is to achieve a purpose which is legitimate under the

Covenant.”

131

This attention to context and the plurality of forms

that discrimination might take has continued to infuse equality

principles, especially in LGBT rights adjudication. In these cases,

substantive equality is reflected in both the courts’ recognition that

indirect discrimination is unconstitutional as well as the nature of

the proportionality test for establishing when differential treatment

is justified.

128

See Sec’y for Justice v. Yau Yuk Lung Zigo & Lee Kam Chuen, [2007] 10

H.K.C.F.A.R. 335, at ¶ 11 (C.F.A.) (H.K.).

129

The Queen v. Man Wai-keung, [1992] 2 H.K.C.L.R. 207 (C.A.) (H.K.).

130

Id.

131

Id. at ¶ 33; see also General Comment 18, supra note 90, at ¶ 8.

302 N.C. J. INT'L L. [Vol. XLIV

a) De facto effects and indirect

discrimination

If differential treatment is not always discrimination, it follows

that facially neutral measures might amount to discrimination under

certain circumstances. In other words, both direct and indirect

discrimination are unconstitutional. This can be helpful when

addressing LGBT rights claims, which frequently concern

discriminatory effects, but where facial classifications based on

sexual orientation or gender identity may not be clearly drawn.

In Leung v. Secretary for Justice,

132

the applicant, a gay man

who was under the age of 21, challenged the constitutionality of

criminal provisions setting out different ages of consent for

homosexual “buggery”

133

and sexual intercourse between a man and

a woman.

134

The Court of Appeal explained that this was not formal

“direct” discrimination because the age of consent for “buggery”

between a male and female was also 21. Instead it held that the

difference constituted “disguised” discrimination in contravention

of the right to equality in the Basic Law and the Bill of Rights. This

was the first time a Hong Kong court determined that indirect

discrimination is unconstitutional. The Court of Appeal agreed with

the first instance decision that “[d]enying persons of a minority class

the right to sexual expression in the only way available to them,

even if that way is denied to all, remains discriminatory when

persons of a majority class are permitted the right to sexual

expression in a way natural to them.”

135

The courts have confirmed this approach in subsequent cases.

For example, in Leung Chun Kwong v. Secretary for the Civil

Service, the courts contemplated whether Mr. Leung, a civil servant

who entered into a same-sex marriage abroad, is entitled to the same

benefits and allowances that the Government provides to the

“spouses” of other civil servants married to persons of the opposite

132

Leung v. Sec’y of Justice, 3 H.K.L.R.D.

133

Id.

134

See Crimes Ordinance, (1997) Cap. 200, § 118(C) (H.K.) (“[A] man who – (a)

commits buggery with a man under the age of 21; or (b) being under the age of 21 commits

buggery with another man, shall be guilty of an offence and shall be liable on conviction

on indictment to imprisonment for life.”).

135

Leung v. Sec’y of Justice, 3 H.K.L.R.D. at ¶ 48.

2019 INTERNATIONAL HUMAN RIGHTS LAW 303

gender. The Court of First Instance decided that there was

unjustifiable discrimination, reasoning that “although the

differential treatment is, on the face of the matter, based on the legal

marital status of the officer … it should also be regarded as being

based, indirectly, on sexual orientation.”

136

Although the Court of

Appeal reversed this decision, accepting the government’s

justifications, it acknowledged that the differential treatment would

have otherwise amounted to indirect sexual orientation

discrimination.

In QT v. Director of Immigration, the Court of Final Appeal (and

the lower courts) similarly confirmed that indirect discrimination is

unlawful. In this case a lesbian expatriate couple claimed the

immigration policy denying a dependent visa to the same-sex

partner of a sponsor who had been admitted to Hong Kong to take

up employment discriminated on the basis of sexual orientation.

137

A different-sex spouse could have applied to join him/her for

residence.

138

At issue was “whether the policy constitutes

discrimination based on sexual orientation … because of the

differential treatment concerning eligibility by reason of marital

status.”

139

The Court explained that the converging views of various

courts, including the ECHR, on the meaning of discrimination

includes general recognition that adverse treatment amounting to

discrimination can take three forms. The first two: “‘[l]ike cases

should be treated alike, unlike cases should not be treated alike’”

140

136

See Leung Chun Kwong v. Sec’y for the Civil Serv., [2018] 3 H.K.L.R.D. 84, ¶

53 (C.A.) (H.K.).

137

See QT v. Dir. of Immigration, [2018] 21 H.K.C.F.A.R. 324, ¶ 29 (C.F.A.) (H.K.).

138

Id. at ¶ 142.

139

Id. at ¶ 41. In QT v. Director of Immigration, the Court of Final Appeal held it was

not necessary to directly determine the constitutionality of the denial of a dependent visa

for a same-sex spouse. Instead, it applied the weaker administrative law test of Wednesbury

unreasonableness and found there was no reasonable connection between the policy and

the aims it was trying to achieve. It therefore found no need to apply a stricter

proportionality test. The court explained that “[QT’s] claim is primarily and sufficiently

framed as one for judicial review on the basis that refusing her a dependent visa . . .

amounts to unlawful discrimination which is irrational and unreasonable in a Wednesbury

sense.” Id. at ¶ 102.

140

Id. at ¶ 6 (citing Lord Nicholls, Ghaidan v Godin-Mendoza [2004] 2 AC 557, ¶ 9

and Li CJ, Sec’y for Justice v. Yau Yuk Lung Zigo & Lee Kam Chuen, [2007] 10

H.K.C.F.A.R. 335, ¶ 19 (C.F.A.) (H.K.)).

304 N.C. J. INT'L L. [Vol. XLIV

represent a formal articulation. The third “involves indirect

discrimination where the measure complained of appears neutral on

its face but is significantly prejudicial to the complainant in its

effect.”

141

The Court of Final Appeal agreed with the Court of Appeal’s

logic: “[s]ince all unmarried couples, heterosexual or homosexual,

are similarly excluded, the Director has not singled out same-sex

couples for differential treatment.”

142

The policy nevertheless

indirectly discriminated on the basis of sexual orientation because

“a heterosexual unmarried couple may make themselves eligible by

getting married if they so wish. But a homosexual unmarried couple

cannot do so because they cannot marry in the sense as understood

according to the law of Hong Kong.”

143

This element of choice, or

lack thereof, is noteworthy and may factor into the courts’ review

of upcoming cases concerning same-sex marriage and civil

partnerships.

144

b) Test for justification of differential

treatment

The proportionality test developed by the courts for determining

when differential treatment is justified and when it amounts to

unconstitutional discrimination also contains features of substantive

equality. The Court of Appeal suggested such a test in Man-wai

Keung, explaining that since “distinctions can be lawful” and

“discrimination may amount to an unlawful distinction,” it is

necessary to “look to the rationality, the reasonableness and the

proportionality of the distinction or discrimination.”

145

The Court of Final Appeal expounded on this test

146

in Secretary

141

Id.

142

Id.

143

Id.

144

See supra note 8 and accompanying text; see infra Part V discussion about how

Hong Kong should be distinguished from the European context since Hong Kong does not

provide any options at all for legal recognition of same-sex relationships.

145

The Queen v. Man Wai-keung, [1992] 2 H.K.C.L.R. 207, ¶ 33 (C.A.) (H.K.).

146

The test has three parts and requires: (1) The difference in treatment must pursue

a legitimate aim. For any aim to be legitimate, a genuine need for such difference must be

established. (2) The difference in treatment must be rationally connected to the legitimate

2019 INTERNATIONAL HUMAN RIGHTS LAW 305

for Justice v. Yau Yuk Lung.

147

Again, consistent with Man-wai

Keung and the Human Rights Committee’s position, the Chief

Justice explained that if a distinction can be justified then it was not

discriminatory in the first place. In this way, he distinguished

between the justification test for equality and that used for other

constitutionally-protected rights:

In requiring differential treatment to be justified, the view has been

expressed that the difference in treatment in question is an

infringement of the constitutional right to equality but that the

infringement may be constitutionally justified. This approach is not

appropriate. Where the difference in treatment satisfies the

justification test, the correct approach is to regard the difference in

treatment as not constituting discrimination and not infringing the

constitutional right to equality. Unlike some other constitutional

rights, such as the right of peaceful assembly, it is not a question of

infringement of the right which may be constitutionally justified.

148

This observation contains the seeds of a substantive equality

doctrine. Since differential treatment aimed at addressing

disadvantage would be consistent with, and not a prima facie breach

of, the constitutional equality guarantee, special measures, or other

remedies in cases involving de facto discrimination, might be

necessary, proportionate distinctions and therefore valid. Such a

determination goes beyond formal equal treatment. It requires

attention to the real impact, disadvantage, and detriment

experienced by members of marginalized groups. The Court’s

explanation suggests that the right to equality and non-

discrimination has an absolute nature: unjustifiable distinctions

(direct or indirect) are always discriminatory and, therefore,

unconstitutional.

In other words, a deviation from equal treatment that is justified

aim. (3) The difference in treatment must be no more than is necessary to accomplish the

legitimate aim.” Sec’y for Justice v. Yau Yuk Lung Zigo & Lee Kam Chuen, [2007] 10

H.K.C.F.A.R. 335, ¶ 20 (C.F.A.) (H.K.).

147

Li CJ also explained … that “[e]quality is the antithesis of discrimination. The

constitutional right to equality is in essence the right not to be discriminated against. It

guarantees protection from discrimination.” He also links the constitutional framework in

Hong Kong to the global context, and explicitly mentions the ICCPR. Id. at ¶ 1.

148

Id. at ¶ 22 (emphasis added).

306 N.C. J. INT'L L. [Vol. XLIV

is not an “exception” to equality but may be part of the substantive

equality duty. While the Court’s reasoning may not affect the actual

outcomes of many discrimination cases in practice (formal equality

may still achieve the same results), its substantive language

nevertheless strengthens equality’s potential. A substantive doctrine

in Hong Kong constitutional law—infused by international human

rights law—could support a range of discrimination claims beyond

LGBT rights issues.

The Court of Final Appeal’s confirmation in QT v. Director

of Immigration

149

that the proportionality test would be applied

more stringently in cases involving a marginalized group is also

significant. “The court will subject the impugned measure to

‘particularly severe scrutiny’” in cases “where a person is subjected

to differential treatment on any of the suspect grounds, including

sexual orientation” which narrows “the government’s margin of

discretion.”

150

It added, citing ECHR jurisprudence, “[t]hat does not

mean that the measure can never pass muster, but it will require the

government to provide ‘very weighty reasons’ or ‘particularly

convincing and weighty reasons’ to justify the challenged difference

in treatment, applying the standard of reasonable necessity.”

151

3. Dignity

As discussed above, dignity is a hallmark of substantive

equality. This principle is repeated often, alongside equality, and

placed in a prominent position in human rights treaties and many

national constitutions. Cases involving discrimination on the

grounds of sexual orientation or gender identity, including some in

Hong Kong, regularly refer to dignity.

152

Although Hong Kong

courts tend to mention dignity in a somewhat perfunctory manner

149

In the end, the court did not actually need to consider the constitutionality of the

discriminatory treatment but nevertheless held in favor of the same-sex couple by applying

a weaker rational connection test. See QT v. Dir. of Immigration, [2018] 21 H.K.C.F.A.R.

324, ¶ 29 (C.F.A.) (H.K.).

150

Id. at ¶ 108.

151

Id.

152

See Michele Finck, The Role of Human Dignity in Gay Rights Adjudication and

Legislation: A Comparative Perspective, 14 INT’L J. OF CONST. L. 26–53 (2016) (noting

that dignity has increasingly played a key role in the “evolution of gay rights,” especially

cases concerning marriage equality).

2019 INTERNATIONAL HUMAN RIGHTS LAW 307

and without elaboration, such judicial acknowledgement

nevertheless signals an apparent appreciation of substantive

equality and its relevance to the LGBT context. It also sets the

groundwork for fuller development of the scope and parameters of

dignity as a nascent constitutional principle.

For example, in QT v. Director of Immigration, the Hong Kong

Court of Final Appeal commented, “[i]t hardly needs to be pointed

out that unlawful discrimination is fundamentally unacceptable.”

153

In support it cited Lord Walker of Gestingthorpe’s use of dignity to

evoke substantive equality in R (Carson) v. Secretary of State for

Work and Pensions.

154

He writes that “[i]n the field of human rights,

discrimination is regarded as particularly objectionable because it

disregards fundamental notions of human dignity and equality

before the law.”

155

He adds that discrimination is demeaning

because it treats a person unfavorably on the grounds of sexual or

racial stereotypes rather than on the basis of merit.

156

The QT v. Director of Immigration judgment also cites a

reference to dignity by the Canadian Supreme Court in Law v.

Canada,

157

generally considered one of Canada’s landmark

substantive equality cases.

158

In that decision, Justice Iacobucci

explains that “[h]uman dignity is harmed by unfair treatment

premised upon personal traits or circumstances which do not relate

to individual needs, capacities, or merits.”

159

He also clarifies that

the constitutional equality guarantee in Canada includes substantive

equality.

160

153

See QT v. Dir. of Immigration, 21 H.K.C.F.A.R., at ¶ 27.

154

R (Carson) v. Secretary of State for Work and Pensions [2006] 1 AC 173, ¶ 49

(UKHL).

155

Id.

156

See id.

157

See

QT v. Director of Immigration, 21 H.K.C.F.A.R., at ¶ 107 n.137 (quoting Law

v. Canada (Minister of Employment and Immigration), [1999] S.C.R. 497 (Can.)).

158

Patricia Hughes, Recognizing Substantive Equality as a Foundational

Constitutional Principle, 22 DALHOUSIE L.J. 5, 23 (1999).

159

See

QT v. Director of Immigration, 21 H.K.C.F.A.R., at ¶ 107 n.137 (quoting Law

v. Canada (Minister of Employment and Immigration), [1999] S.C.R. 497 (Can.)).

160

In Law v. Canada, the judge explained:

Human dignity means that an individual or group feels self-respect and self-worth.

It is concerned with physical and psychological integrity and empowerment. Human

dignity is harmed by unfair treatment premised upon personal traits or

circumstances which do not relate to individual needs, capacities, or merits. It is

308 N.C. J. INT'L L. [Vol. XLIV

V. Prospects for Same-sex Relationship Recognition in Hong

Kong

This section contemplates prospects for judicial recognition of

same-sex marriage in Hong Kong with reference to this emerging

substantive equality doctrine in Hong Kong constitutional law.

161

Although to date Hong Kong courts have not yet deliberated on the

issue of a constitutional right to legal recognition of same-sex

relationships, they have occasionally emphasized, in obiter, its

absence from Hong Kong law. For example, and most recently, in

QT v. Director of Immigration, the Court of Final Appeal reiterated

that “[m]arriage in [Hong Kong] is … heterosexual and

monogamous. By definition, it is not a status open to couples of the

same sex, the right to marriage in Hong Kong does not make

marriage available to same-sex couples.”

162

It also noted that the

“the European Convention on Human Rights does not impose

obligations on states to grant same-sex couples the right to marry.

”

163

This remark and the courts’ predilection to rely on the ECHR

jurisprudence could foreshadow possible approaches to the

enhanced by laws which are sensitive to the needs, capacities, and merits of different

individuals, taking into account the context underlying their differences. Human

dignity is harmed when individuals and groups are marginalized, ignored, or

devalued, and is enhanced when laws recognize the full place of all individuals and

groups within Canadian society. Human dignity within the meaning of the equality

guarantee does not relate to the status or position of an individual in society per se,

but rather concerns the manner in which a person legitimately feels when confronted

with a particular law. Does the law treat him or her unfairly, taking into account all

of the circumstances regarding the individuals affected and excluded by the law?

Law v. Canada (Minister of Employment and Immigration), S.C.R. at ¶ 53; see also

Sophia Moreau, Promise of Law v. Canada, 57 U. TORONTO L.J. 415 (2007) (reflecting on

the value of dignity as considered in Law v. Canada).

161

For an earlier discussion of this issue focusing on the right to marriage in the Hong

Kong Bill of Rights and the ICCPR, see Michael Ramsden & Luke Marsh, Same-Sex

Marriage in Hong Kong: The Case for a Constitutional Right, 19 THE INT’L J. OF HUM.

RTS. 90, 90–103 (2015).

162

See QT v. Director of Immigration, 21 H.K.C.F.A.R., at ¶ 25.

163

Id.; see Schalk and Kopf v. Austria, Eur. Ct. H.R., App. No. 30141/04 (2010);

Hämäläinen v. Finland, Eur. Ct. H.R., App. No. 37359/09 (2014); Chapin and Charpentier

v. France, Eur. Ct. H.R., App. No. 40183/07 (2016).

In W v. Registrar of Marriages, the court granted a post-operative transgender

woman the right to marry her male partner in her acquired gender, the Court of Final

Appeal clarified that “nothing in this judgment is intended to address the question of same

sex marriage.” W v. Registrar of Marriages, [2013] 3 H.K.L.R.D. 90, ¶ 2 (C.A.) (H.K.).

2019 INTERNATIONAL HUMAN RIGHTS LAW 309

upcoming same-sex marriage challenge

164

This Part therefore

reflects on whether the positions of the ECHR and the Human

Rights Committee—as expressed in Schalk and Kopf v. Austria and

Joslin v. New Zealand—are appropriate for application in Hong

Kong. Can they be distinguished? What should the courts bear in

mind when evaluating their persuasive value?

Although a number of domestic courts have ruled in favor of

marriage for same-sex couples, as mentioned above only one

international human rights body, the IACHR, has identified a right

to same-sex marriage.

165

In 2002, the Human Rights Committee

decided that the New Zealand Marriage Act, which defined

marriage as between a man and a woman, did not breach the right

to marriage in ICCPR Article 23.

166

In a terse eight-sentence

consideration of the merits, the Committee noted that the reference

to “men and women” of marriageable age “rather than the general

terms used elsewhere in … the Covenant, has been consistently and

uniformly understood as indicating that the treaty obligation … is

to recognize as marriage only the union between a man and a

woman wishing to marry each other.”

167

It then refrained from

analyzing the discrimination claim, or any of the other rights that

had been invoked by the applicant. As discussed below, this stark

avoidance of equality may have been an attempt to side-step

controversy and threats to the legitimacy of the UN treaty body

process.

In Schalk and Kopf v. Austria,

168

the ECHR held that denial of

marriage to a same-sex couple was consistent with Article 8 (family

life) and Article 12 (marriage), read in conjunction with Article 14

(non-discrimination) of the European Convention on Human

Rights. Although the Court adopted an inclusive understanding of

family life, extending its meaning to same-sex relationships for the

first time,

169

it also avoided a fuller examination of the

164

See supra note 8 and accompanying text.

165

See supra note 25 and accompanying text.

166

See Ms. Juliet Joslin et al. v. New Zealand, Views, Human Rights Comm., No.

902/1999, U.N. Doc. A/57/40, at 214 (July 17, 2002).

167

Id. at ¶ 8.2.

168

See Schalk and Kopf v. Austria, Eur. Ct. H.R., App. No. 30141/04 (2010).

169

“[T]he relationship of the applicants, a cohabiting same-sex couple living in a

stable de facto partnership, falls within the notion of ‘family life,’ just as the relationship

310 N.C. J. INT'L L. [Vol. XLIV

discrimination issue. It relied largely on what it believed to be a

lack of consensus among member states of the Council of Europe

and applied a wide margin of appreciation.

170

A reconsideration of these decisions appears probable, however,

for a number of reasons. First, global trends are shifting largely in

favor of same-sex marriage. This could be especially influential for

the ECHR’s position given its emphasis on consensus when

determining the appropriate scope of the margin of appreciation.

Their mention of the building of a consensus in Europe, a “tendency

[that] has developed rapidly over the past decade” suggests

possibilities.

171

There was also notable division among the judges

with three of seven dissenting.

172

The Court also acknowledged the strength of equality and non-

discrimination since serious reasons are necessary to justify

differential treatment on the grounds of sexual orientation. Falling

back on the margin of appreciation doctrine, however, may have

been a convenient way to avoid the controversy that a positive

ruling based on equality may have generated.

173

Paradoxically, by

avoiding equality, the Court actually seemed to be signaling its

appreciation of equality’s potential. Indeed, had it utilized a

stringent proportionality test to evaluate the validity of differential

treatment between same-sex and different-sex couples with regard

to marriage, the Court may have come to a different conclusion. It

of a different-sex couple in the same situation would.” Id. at ¶ 94.

170

The Court explained that “[t]he scope of the margin of appreciation will vary

according to the circumstances, the subject matter and its background; in this respect, one

of the relevant factors may be the existence or non-existence of common ground between

the laws of the Contracting States.” Despite recognizing an “emerging European consensus

towards legal recognition of same-sex couples” the Court held that “[n]evertheless, there

is not yet a majority of States providing for legal recognition of same-sex couples. The

area in question must therefore still be regarded as one of evolving rights with no

established consensus, where States must also enjoy a margin of appreciation in the timing

of the introduction of legislative changes.” Id. at ¶ 105. See generally, Dominic

McGoldrick, A Defence of the Margin of Appreciation and an Argument for its Application

by The Human Rights Committee, 65 INT’L & COMP. L.Q. 21 (2016) (discussing the margin

of the appreciation doctrine).

171

Schalk and Kopf v. Austria, at ¶ 105. It then decided, however, that there was still

no established consensus, and therefore States enjoyed a margin of appreciation in this

area.

172

Id. ¶¶ 109, 115.

173

See Hamilton, supra note 109, at 1588.

2019 INTERNATIONAL HUMAN RIGHTS LAW 311

would have likely been difficult to accept the reasons put forward

for justifying the differential treatment—the denial of marriage—

had it reflected on the requirements of substantive equality. As

discussed above, it would have needed to take an expansive

approach to the prohibited grounds, provide a nuanced

interpretation of the meaning of discrimination, pay attention to

impact, and appreciate the stigma (dignity harms), and exclusion

that same-sex couples experience when denied access to the

institution of marriage.

Some have suggested that the Human Rights Committee might

also arrive at a different view if asked to reevaluate its position on

same-sex marriage. For example, Gerber, Tay, and Sifris argue that

Joslin v. New Zealand is no longer “good law” in light of

international legal developments since 2002 and human rights treaty

bodies’ acceptance that core human rights treaties are “living

instruments.”

174

They maintain that the Human Rights Committee’s

reading was overly narrow and not in line with the rules of treaty

interpretation in the Vienna Convention on the Law of Treaties.

175

In 2013, Sarah Joseph observed that Joslin v. New Zealand had been

deliberated nearly a decade earlier and predicted that “it is only a

matter of time before the topic of same-sex marriage returns to the

[Human Rights Committee]” and expected “a global tipping point

to be reached, where the [Committee] will decide a similar case

differently.”

176

Indeed, if it applied its substantive equality doctrine,

the Committee would likely have difficulty justifying the direct or

indirect harms arising from the denial of marriage.

In two recent cases involving relationship rights, the Hong Kong

Court of Appeal avoided a substantive equality analysis and its

implications. For example, although holding in favor of the

applicant in QT v. Director of Immigration,

177

the Court of Appeal

introduced a categorization of “core rights” associated with

marriage that could be shielded from judicial review.

178

These core

174

See Paula Gerber, Kristine Tay & Adiva Sifris, Marriage: A Human Right for All?,

36 SYDNEY L. REV. 643, 644-48 (2014).

175

Id. at 649.

176

Sarah Joseph, Latest Case Law Trends: The International Covenant on Civil and

Political Rights, CASTAN CTR. FOR HUM. RTS. L. (Oct. 28, 2013),

https://castancentre.com/2013/10/28/latest-case-law-trends-the-international-covenant-

on-civil-and-political-rights/ [https://perma.cc/QDY9-T9WL].

177

See QT v. Director of Immigration, [2017] 5 H.K.L.R.D. 166 (C.A.) (H.K.).

178

See id. at ¶ 11.

312 N.C. J. INT'L L. [Vol. XLIV

rights would be immune from challenge even when direct or indirect

differential treatment on the basis of sexual orientation is involved.

The Court explained that:

There are certainly areas of life which are, whether by nature or by

tradition or long usage, closely connected with marriage such that

married couples should and do enjoy rights and shoulder obligations

which are unique to them as married people. The rights and

obligations in these areas of life which go with the status of marriage

must be regarded as core rights and obligations unique to a

relationship of marriage, so much so that the entailing privileged

treatments to married couples as compared with unmarried couples

(including same sex couples) should simply be considered as

treatments that require no justification because the difference in

position between the married and the unmarried is self-obvious.

179

This somewhat awkward device appears designed to allow the

courts some flexibility to circumvent a robust justification test—

already available in the context of LGBT discrimination claims—in

cases involving same-sex relationship rights. Indeed, the Court of

Appeal affirmed in Leung Chun Kwong v. Secretary for the Civil

Service

180

that the “concept of core rights and obligations … was

precisely an attempt to protect and ring fence the institution and

status of marriage that is heterosexual marriage in Hong Kong.”

181

Like the ECHR and the Human Rights Committee, the Hong

Kong court may be indirectly—and paradoxically—signaling its

acknowledgment of the potential of the constitutional equality

doctrine. As in Schalk and Kopf v. Austria and Joslin v. New

Zealand, if the court needs to apply a stringent equality review to a

same-sex marriage claim, it is difficult to imagine that the

government’s justifications—even to preserve the traditional

179

Id. at ¶ 14.

180

See Leung Chun Kwong v. Sec’y for the Civil Serv., [2018] 3 H.K.L.R.D. 84

(C.A.) (H.K.).

181

Id. at ¶ 3. See generally, Po Jen Yap, Spouses without Benefits: ‘Ring-Fencing’

Marriage after W and QT Have Unbolted its Gates?, 48 H.K. L.J. 365 (2018) (discussing

how the Court of Appeal’s decision in Leung Chun Kwong is inconsistent with its own

precedent and the Court of Final Appeal).

2019 INTERNATIONAL HUMAN RIGHTS LAW 313

concept of marriage—could be “weighty” enough.

182

A dignity

principle could also at the same time unveil the underlying stigma

associated with this type of argument; an exclusionary reason for

denying marriage based on prejudice would surely fall foul of

substantive or “inclusive” equality as discussed in Part III above.

The Court of Final Appeal in QT v. Director of Immigration rejected

the lower court’s attempt to ring fence marriage rights, however,

183

and has therefore reopened possibilities for a stronger review of

relationship policies based on substantive equality.

The Hong Kong challenges can also be distinguished from

Schalk and Kopf v. Austria for a number of additional reasons. First,

at the time of the decision, Austria had recently introduced

registered partnerships for same-sex couples, which gave the

applicants an alternative for recognition of their relationship short

of marriage. The ECHR noted that “[g]iven that at present it is open

to the applicants to enter into a registered partnership, the Court is

not called upon to examine whether the lack of any means of legal

recognition for same-sex couples would constitute a violation … if

it still obtained today.”

184

If neither marriage nor registered

partnerships had been available, the Court may well have come to a

different conclusion. In Hong Kong, however, there are no options

for the legal recognition of same-sex relationships on the basis of

equality with different sex couples. The absence of choice for

same-sex couples could be a determinative factor in the upcoming

judicial reviews.

185

Furthermore, the European Court’s concern with consensus,

which was the primary reason for its decision against same-sex

marriage, is not appropriate in a domestic jurisdiction like Hong

Kong.

186

Hong Kong does not face the same demands as an

182

For a critique of the Court of Appeal’s conception of traditional marriage in Hong

Kong, see Marco Wan, Sexual Orientation and the Historiography of Marriage in Leung

Chun Kwong v. Secretary for the Civil Service, 48 H.K. L.J. 605 (2018).

183

See QT v. Dir. of Immigration, [2018] 21 H.K.C.F.A.R. 324, ¶ 110(b) (C.F.A.)

(H.K.) (“We do not accept that differential treatment requires no justification if based on

marital status and if said to involve core rights and obligations unique to marriage.”).

184

See Schalk and Kopf v. Austria, Eur. Ct. H.R., App. No. 30141/04, ¶ 103 (2010)

(emphasis added).

185

See supra note 153 and accompanying text in relation to QT v. Director of

Immigration.

186

See Holning Lau & Derek Loh, Misapplication of ECHR Jurisprudence in W v

314 N.C. J. INT'L L. [Vol. XLIV

international organization made up of diverse member states. Some

have suggested that the European Court of Human Rights relied on

consensus and a wide-margin of appreciation in order to avoid

controversy and protect the Court’s legitimacy in a divided Council

of Europe.

187

Similarly, Langford contends that the Human Rights

Committee in Joslin may have been trying to prevent a backlash at

a time when a minority of states parties to the ICCPR had ratified

the Optional Protocol allowing individual communications and

shortly before two had denounced it.

188

There may be fewer apprehensions in Hong Kong about how

rulings involving LGBT rights could affect the legitimacy of

judicial institutions. To be sure, Hong Kong’s constitutional status

as an autonomous entity within an authoritarian state poses unique

challenges, and some have noted worrying signs that judicial

independence is under threat.

189

LGBT rights, however, do not

engage particularly sensitive political issues concerning Hong

Kong’s relationship with Mainland China. In a study measuring the

Hong Kong courts’ degree of deference to the government when

adjudicating human rights cases, Chan found that the courts have

been less deferential when the right to equality of a vulnerable

minority group is at stake.

190

She also discovered (contrary to her

initial hypothesis) that they have also been less deferential in cases

Registrar of Marriages, 41 H.K. L.J. 75 (2011).

187

Helen Fenwick, Same Sex Unions at the Strasbourg Court in a Divided Europe:

Driving Forward Reform or Protecting the Court’s Authority via Consensus Analysis?, 3

EUR. H.R. L. REV. 249, 259 (2016).

188

Langford, supra note 27, at 119–20 (citing Christof Heyns & Frans Viljoen, The

Impact of the United Nations Human Rights Treaties on the Domestic Level, 23 HUM. RTS.

Q. 483, 517–18 (2001)). See also Natalia Schiffrin, Jamaica Withdraws the Right of

Individual Petition Under the International Covenant on Civil and Political Rights, 92

AM. J. OF INT’L L. 563, 564 (1998); Joseph, supra note 176; Gerber, Tay, & Sifris, supra

note 174. Jamaica and Trinidad and Tobago had recently denounced the Optional Protocol

and therefore rejected the Committee’s competence to consider individual communications

brought against them.

189

For a discussion of particular challenges facing the Hong Kong judiciary, see

Johannes Chan, A Storm of Unprecedented Ferocity: The Shrinking Space of the Right to

Political Participation, Peaceful Demonstration, and Judicial Independence in Hong

Kong, 16 INT’L. J. OF CONST. L., 373, 373–88 (2018) (commenting on the courts’ difficult

balance between maintaining the common law system and the rising authoritarian regime

in China).

190

See Cora Chan, Rights, Proportionality and Deference: A Study of Post-Handover

Judgments in Hong Kong, 48 H.K. L.J. 51, 66 (2018).

2019 INTERNATIONAL HUMAN RIGHTS LAW 315

involving “moral controversy.”

191

Despite the strong equality arguments for same-sex marriage

and reasons to distinguish the Hong Kong situation, courts may

nevertheless uncritically follow the current position of the ECHR

and the Human Rights Committee (however incorrectly reasoned

and susceptible to a reversal). Acceptance of a right to some form

of civil partnership has a better chance of success, however, and the

ECHR’s jurisprudence would more readily reinforce such an

outcome.

192

Rapidly changing attitudes in Hong Kong and majority

public support for same-sex couple rights generally, including

marriage,

193

should mitigate any qualms that the courts might have

about the need for societal consensus. The more robust equality

analysis in the IACHR’s advisory opinion should also resonate in

Hong Kong, given the strength of the SAR’s constitutional rights

framework and acceptance of substantive equality.

VI. Conclusions

This Article contends that a right to substantive equality and

non-discrimination has significant capacity to further LGBT claims

before international bodies and domestic courts. Prospects for the

eventual recognition of same-sex marriage in Hong Kong, or at least

some form of civil partnership that grants rights consistent with

marriage to same-sex couples, likely hinges on developments in

international and comparative human rights law. Whether the UN

Human Rights Committee and the European Court of Human Rights

revisit their previous positions in Joslin v. New Zealand and Schalk

and Kopf v. Austria could impact the outcome of future cases in

Hong Kong and elsewhere. As examined above these bodies have

arguably not yet fully embraced the implications of the robust

substantive equality doctrine elaborated in their interpretive

materials at least with regard to marriage. This untapped potential

suggests possible legal strategies for Hong Kong and beyond.

If Hong Kong courts do leverage the promise of their

constitutional equality doctrine, they could contribute more

concretely to the global convergence of LGBT rights norms (and

191

Id. at 74.

192

See supra note 53 and accompanying text.

193

See generally supra note 12 and accompanying text (discussing greater acceptance

of LGBT rights in Hong Kong).

316 N.C. J. INT'L L. [Vol. XLIV

human rights norms generally). This would not require

inappropriate judicial activism and is unlikely to undermine the

judiciary’s legitimacy or independence. Courts in a number of other

jurisdictions have already relied on substantive equality when

recognizing a right to same-sex marriage even in contexts where

public support was more limited.

194

A closer consideration of LGBT

rights jurisprudence in Hong Kong may also contribute to broader

debates about the effectiveness of international human rights law on

domestic implementation and internalization of norms.

195

Indeed,

the Hong Kong cases illustrate the potential of international human

rights law for the advancement of LGBT rights in domestic legal

systems where the courts look to comparative experience for

guidance.

194

See Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Minister of Home Affairs v.

Fourie 2005 (1) SA 524 (CC) (S. Afr.); see also Holning Lau, Marriage Equality and

Family Diversity: Comparative Perspectives from the United States and South Africa, 85

FORDHAM L. REV. 2615 (2017).

195

See, e.g., KATHRYN SIKKINK, EVIDENCE FOR HOPE: MAKING HUMAN RIGHTS WORK

IN THE 21ST CENTURY (2017); STEPHEN HOPGOOD, THE ENDTIMES OF HUMAN RIGHTS

(2013).