In 2018 the Hong Kong courts determined that it was irrational for the Immigration Department to refuse to grant the same-sex spouse of an expatriate worker arriving in Hong Kong the same right to work in Hong Kong as is granted to every opposite-sex spouse (see our update here). This decision was greeted with acclaim internationally and, generally, was well accepted in Hong Kong also.
Today the Hong Kong Court of Final Appeal has taken a further (lengthy) step towards internationally accepted norms by making it unlawful for the Hong Kong Government to provide lower benefits to a spouse in a same-sex marriage than to a spouse in a heterosexual marriage, and that it is unlawful for the Inland Revenue Department to refuse to accept same-sex marriages when considering individual tax treatment.
On 6 June 2019 the Court of Final Appeal issued its judgment in the case of Leung Chun Kwong v. Secretary for Civil Service and Commissioner of Inland Revenue.
The case involved a same-sex couple (Angus Leung and Scott Adams) who had been legally married in New Zealand (where it is lawful for same-sex couples to marry). Angus Leung works for the Hong Kong government as a civil servant. The terms of employment for a civil servant entitle the employee to certain benefits (medical and dental) which can be extended to the spouse of the civil servant. Mr. Leung applied for his spouse (Mr. Adams) to be granted such benefits. His application was rejected on the grounds that same-sex marriages were not recognised in Hong Kong.
In addition, the Hong Kong tax system contains preferential tax treatment for married couples. Mr. Leung sought to file tax returns with the Hong Kong Inland Revenue Department (IRD) naming Mr. Adams as his spouse. The tax returns were rejected by the IRD on the grounds that spouses cannot be of the same sex.
Mr. Leung challenged both of the above decisions and, having suffered various losses in the lower courts, the matter was heard by the Court of Final Appeal earlier this year. The primary argument put forward by the Government and by the IRD to justify their decision to reject the various applications made by Mr. Leung was that differential treatment between different-sex and same-sex relationships was necessary in order to protect the institution of traditional marriage.
The Court of Final Appeal (CFA) rejected the arguments put forward by the respondents. In particular the CFA determined as follows:-
- There is no rational connection between denying Mr. Leung (or his spouse) employment and tax benefits and protecting the institution of marriage, and
- The argument that spouses in same-sex marriages should be treated less favourably due to the fact that same-sex marriages are not possible in Hong Kong is a circular (and therefore flawed) argument.
The CFA held in favour of Mr. Leung on both counts.
What does this mean for the future?
This is a very clear indication of the way in which the Hong Kong judiciary view the issue of same-sex marriages. It is probable that more and more cases are going to be filed with the court seeking equality of treatment for gay couples, particularly in relation to the public sector. It is also probable that the Government's appetite for defending these cases will reduce and that it will begin being more proactive and taking steps to equalise the position without being directed to do so by the courts.
After all, even Taiwan now permits same-sex marriages!
Whilst neither this decision, nor any prior decision, impacts private sector employment contracts, it is a fact that the large number of public sector (and quasi-public sector) employees in Hong Kong will, in our opinion, drive a new "normal" in the HR landscape. That new "normal" will be the provision of equality of benefits for employees regardless of their sexual orientation.
Hong Kong is renowned for its ability to change its landscape rapidly through the creation of new infrastructure projects. It is now becoming known for its ability to change in other ways also.
This is a day to celebrate.