Overturning lower court's decision – Court of Final Appeal hands down milestone judgment to LGBT community

Introduction
Facts
Appeal to Court of Final Appeal
Implications

Introduction

The Court of Final Appeal recently handed down a landmark judgment in favour of the LGBT community in Leung Chun Kwong v Secretary for the Civil Service.(1)

In its judgment, the Court of Final Appeal unanimously overturned the Court of Appeal's decision and held that same-sex couples who are legally married in other jurisdictions are entitled to the same spousal employment and tax benefits conferred on heterosexual married couples in Hong Kong.

Facts

The applicant, Mr Leung, has been a civil servant with the Hong Kong government since 2003. He married his same-sex partner in New Zealand in 2014. On returning to Hong Kong, the applicant claimed spousal medical and dental benefits available to civil servants for his partner.

However, the secretary for the civil service refused to grant the benefits to the applicant's partner on the ground that their same-sex marriage was not a marriage within the meaning of Hong Kong law (the benefits decision).

Similarly, the commissioner of inland revenue held that the applicant was not entitled to elect for joint tax assessment with his partner because their same-sex marriage did not fall within the definition of 'marriage' under the Inland Revenue Ordinance (the tax decision) (for further details please see "Preventing employment discrimination versus upholding status of marriage").

Having failed to overturn the benefits decision and the tax decision in the first-instance court and Court of Appeal, the applicant appealed to the Court of Final Appeal.

Appeal to Court of Final Appeal

Issues
The court examined whether:

• there is a rational connection between the legitimate aim of protecting the institution of marriage (ie, opposite sex and monogamous marriage as understood under Hong Kong laws) and the difference in treatment to persons in such a marriage and persons in a same-sex marriage, for the purpose of conferral of spousal employment benefits and the eligibility to elect for joint tax assessment;
• the local legal landscape and societal circumstances (including prevailing socio-moral values of society on marriage) are relevant in determining the issue of proportionality and justification; and
• the secretary and commissioner had justified the difference in treatment.

Judgment
The court reiterated the principle of equality before the law enshrined in the Basic Law and the Hong Kong Bill of Rights and emphasised that unlawful discrimination was fundamentally unacceptable. The question before the court was whether there had been differential treatment on a prohibited ground and, if so, whether this could be justified.

The secretary and commissioner admitted that there had been indirect discrimination against the applicant and his partner but argued that the discrimination was justified by the need to protect the institution of traditional marriage in Hong Kong.

The court accepted that the secretary and commissioner had legitimately sought to protect the institution of traditional marriage and that the local legal landscape and societal circumstance had been relevant in determining the issue of proportionality and justification. However, the court rejected sole reliance on the prevailing socio-moral values of society on marriage as the reason for rejecting a minority's claim to fundamental rights.

The court found that financial benefits for spouses in the context of employment and taxation were not conferred in order to protect the institution of traditional marriage, but to acknowledge the economic reality of the family unit with one member of a couple being the principle breadwinner for the family and to encourage the recruitment and retention of employees. It did not accept that, by extending spousal employment and tax benefits to same-sex married couples, the interests of heterosexual marriage would be undermined.

Based on the above reasons, the court did not accept the justification relied on by the secretary and commissioner and held that there was no rational connection between the legitimate aim of protecting the institution of traditional marriage and the differential treatment in question.

The court added that the benefits decision and tax decision had been further undermined by:

• the equal opportunities employment policies adopted by the secretary; and
• the fact that Inland Revenue Ordinance recognises a polygamous marriage by extending the definition of 'marriage' to that between a man and his principal wife.

Finally, the court held that same-sex married couples are entitled to the same spousal employment and tax benefits conferred on heterosexual married couples in Hong Kong.

Implications

The LGBT community regards this decision as a big step forward for equality in Hong Kong.

Employers are recommended to review their policies to ensure that they are in line with the principles laid down in the Court of Final Appeal's decision. In particular, employers should ensure that spousal employment benefits (eg, those set out in employment contracts) also apply to same-sex spouses, in addition to opposite-sex spouses.

For further information on this topic please contact Patricia Yeung at Howse Williams by telephone (+852 2803 3688) or email (patricia.yeung@howsewilliams.com). The Howse Williams website can be accessed at www.howsewilliams.com.

Endnotes

(1) [2019] HKCFA 19.