The fight to lift the barrier to same-sex equality in Hong Kong
Originally published at the South China Morning Post on November 5, 2016.
Many Hongkongers support allowing same-sex couples to ask about their partner’s medical condition and claim their ashes after they die, yet the city still does not recognise such rights and continues to fall behind on LGBTI equality.
A study by the Chinese University of Hong Kong showed that 54 per cent of the public support the right of same-sex couples in a long-term stable relationship to ask doctors about their partner’s medical conditions, while less than 20 per cent were opposed. About 64 per cent also agreed that they should be able to claim their deceased partner’s ashes, and less than 10 per cent disagreed. The study polled 1,013 Chinese-speaking people aged 18 and above.
Rights group say Hong Kong urgently needs to implement legislation recognising the rights of sexual minorities in the city – a vulnerable population that lacks some of the most basic protections.
“Why is it not important for same-sex couples to be buried together, or to be able to share the last part of their life together if they are in an emergency medical situation? We are second-class citizens. It’s heartbreaking,” Tommy Chen, executive officer of local LGBTI group Rainbow of Hong Kong, said. “It’s just a shame and makes Hong Kong look ugly.”
Gay rights in Asia came under the spotlight last month with the suspected suicide of a gay professor in Taiwan – an event that provoked widespread outrage and could propel Taiwan into becoming the first in the region to legalise same-sex marriage.
Friends believe that Frenchman Jacques Picoux committed suicide as a result of depression following the death of his Taiwanese partner of 35 years last year, the Guardian reported. Picoux was denied the right to participate in vital medical decisions during his partner’s final moments and was left afterwards with no legal claim over the property they shared.
Unlike some other common law jurisdictions, Hong Kong has yet to legalise same-sex marriage, and does not recognise the legal status of overseas same-sex marriages, civil partnerships and unions.
Although a January Equal Opportunities Commission survey showed that 91.8 per cent of people aged 18 to 24 supported the implementation of an anti-discrimination law to protect sexual minorities, the city still does not have such legislation, leaving many vulnerable to abuse in all areas of their lives.
Brian Leung Siu-fai, chief campaigner of the Big Love Alliance, slammed the government for dragging its feet on protection of LGBTI rights. In the past five years, many studies had been released showing a shift in public opinion towards the LGBTI community, yet the government still insisted there was no public mandate for taking concrete action, he said.
Official recognition of same-sex couples was important not only because it recognised the love between two people, but also because marriage conferred a host of basic human rights that affected countless aspects of one’s life from housing to insurance, Leung said. Even if the city did not legalise same-sex marriage soon, it needed to take steps to recognise same-sex love, he added, for example by introducing the concept of civil partnerships or unions.
Those who oppose equality and say that they want to protect so-called traditional values are infringing on the basic human rights of LGBTI individuals, Leung said.
In Hong Kong there has been growing awareness surrounding LGBTI issues in recent years. Earlier this summer, former Labour Party lawmaker Cyd Ho Sau-lan proposed broadening the definition of a relative of a dead person in a government bill to include partners from overseas same-sex marriages.
In March, a British lesbian lost in the first legal bid against the Immigration Department for its refusal to grant her a visa to reside and work in Hong Kong with her partner, while in December last year a civil servant challenged the government’s refusal to recognise his overseas same-sex marriage.
The city’s Electronic Health Record Sharing System Ordinance was amended to allow those residing with a patient to make decisions on behalf of them if they are unable to do so physically or mentally.
Same-sex couples are also protected under the Domestic and Cohabitation Relationships Violence Ordinance
Despite this trend, Hong Kong still lags behind other countries in Asia as well as globally on LGBTI rights, said CUHK Gender Studies Assistant Professor Suen Yiu-tung, one of the study’s co-authors. For instance, although same-sex marriage was not legal in Japan, same-sex couples were allowed to register their relationships, he said.
“Whether someone should be able to claim their partner’s ashes is one of the most ridiculous questions I’ve ever asked,” Suen said, adding that the government would be moving against public opinion if it continued to refuse to take these rights seriously. “In Hong Kong, we can only lag behind for a certain amount of time before we feel really ashamed about how we’re treating minorities.”
Rights groups say although there is growing support for LGBTI individuals, it is not overt because sexuality is still a taboo topic. Yet such support does not equate to full recognition, and still creates a barrier that denies rights to a vulnerable group, said Marco Wan, associate professor of law at the University of Hong Kong.
“I don’t think we should delay more in trying to advocate for these rights,” Wan said. “We need to recognise people of different sexual orientations as people of equal dignity. As long as Hong Kong doesn’t recognise that, we haven’t come far enough.”
Rights only for straight couples
Married heterosexual couples can apply for public rental housing and Home Ownership Scheme units together as family.
In terms of life insurance, a husband may have insurable interest on his wife and vice versa. Many employers also offer dental and medical insurance to employees, and extend them to the employee’s legally recognised spouse and sometimes children.
In certain circumstances, for instance if a patient is in the intensive care unit, only family members or individuals approved by family members are allowed to visit.
The option of filing taxes together or separately
Taxpayers can claim a married person’s allowance if either spouse has no income or salaries tax to report during the assessment period. Tax breaks are also available for legally married couples that elect for joint assessment.
For Hong Kong permanent residents or visa holders not subject to a limited stay, his or her legally recognised spouse is eligible to apply for a dependant visa
Property after death
In the event of a death, if the deceased does not have a will, the order of priority for his or her estate will first go to the surviving spouse, the children of the deceased, the parents of the deceased and then the siblings of the deceased
Companies may offer relocation assistance to employees who need to move. The cost of official family members is typically covered.
Employees can take emergency time off for an official family member’s sickness or loss.
Couples torn apart when they needed each other most
Case 1: Medical emergency
One woman who is in an overseas civil partnership was thrown into a medical emergency situation while in Hong Kong with her wife. She had to be sent to a public hospital at 1am and stay in overnight. Her wife, who accompanied her to the hospital, was told by staff that she had no right to remain with her because she was not recognised as a family member. The experience was very traumatising for the patient, who said she desperately needed her wife’s support. Ultimately, her wife was forced to leave and could not join her.
Source: Chinese University gender studies assistant professor Suen Yiu-tung
Case 2: Right to claim deceased partner’s ashes
Julian Chan and his same-sex partner were Hong Kong locals who had been living together for over 10 years. Chan’s partner had a terminal illness, but because Chan was not officially a family member he was not allowed to visit him in hospital. Medical staff told Chan that they would only let him in if he could produce a marriage certificate. They denied his visitation request. Chan’s partner left a will stating that he wanted his ashes to be kept alongside Chan’s in a columbarium. After he died Chan could not fulfil his wishes.
Source: Rainbow of Hong Kong executive officer Tommy Chen