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29 Jul 2004

Hong Kong to debate gay rights, gay marriage

Gays and lesbians in Hong Kong will be covered by sexual orientation discrimination legislation sooner rather than later if a survey to be conducted by early next year indicates more than 50 per cent of the public supports such a law. Tim Cribb reports.

Urgent discussion is underway among Hong Kong's gays and lesbians following news that the government is preparing to open debate on the rights of homosexuals. On the agenda is an ordinance barring discrimination on the grounds of sexual orientation. Also up for discussion are issues relating to taxation, health and education, as well as possible recognition of committed same-sex partnerships.

Couple Roddy Shaw and Nelson Ng want the Inland Revenue Department to recognise their marriage in Toronto last year under Canadian law and grant them the spousal tax rebate.
But first, Hong Kong's sexual minorities will have to convince the public.

To find out what Hong Kong thinks, a survey will be launch later this year or early next year. The government wants to known whether societal attitudes have change since a 1995-96 survey, which showed widespread opposition to a sexual orientation discrimination ordinance.

Stephen Fisher, deputy secretary of the Home Affairs Bureau, says nothing will happen if the survey does not show Hong Kong attitudes have changed.

"I don't think the Hong Kong SAR government will try to impose something like this on the community without at least 50 per cent support," says Fisher.

A successful survey will open the way for a consultation paper and, if sufficient support can be gauged within the Legislative Council, a bill will be put forward.

Gay activist Chung To, of the Chi Heng Foundation, says: "I am quite confident we have over half support. But while public opinion is important, protecting the rights of minorities should not be left to the majority to decide. That is the government's job."

"This survey is long overdue," says civil rights lawyer Roddy Shaw, who heads the non-governmental organisation Civil Rights for Sexual Diversities.

"The community at large has changed its attitudes and it is important the government see that change," says Shaw, who cautioned against the use of biased or leading questions.

The Polytechnic University conducted a survey in March 2002, which found 70 believed gays and lesbians have the right to form families.

"If the survey is done in a fair and comprehensive way, I think it will have a positive outcome," says Chung To.

The Tongzhi Coalition Joint Meeting, which acts as a forum for more than a dozen NGOs and groups representing LGBT in Hong Kong, has been convened for next Tuesday (August 3). It will discuss how to win the ordinance.

As debate opens up, activists like Shaw and To hope progress can be made on the issue of recognising same-sex partners, which has widespread ramifications for Hong Kong law, not the least in housing, health and taxation.

Fisher says the government is open to discuss all issues and, to that end, will launch a sexual minorities forum "before the end of the year," modelled on the existing forums on human rights and ethnic minorities.

The Hong Kong-Chinese career civil servant is something of a troubleshooter in the Hong Kong bureaucracy. Fisher steered the race discrimination policy paper to the Executive Council and is confident that ordinance will become law by mid-2005.

He is considered by gay activists to be "reasonably open minded," "quite capable of handling human rights issues which are at odds with the government," "doesn't shy away from difficult issues," and "a driving force behind policy."

Central to the forum concept is the direct involvement of the Hong Kong bureaucracy. Fisher says he will "not let the other government bureaux hide behind the Home Affairs Bureaux. They will have to defend themselves."

Fisher has also effectively put Hong Kong's gay and lesbian community on notice.

"Like any political game, someone has to act as advocate and the government can only do so much," he says. "There must be a group of people who are prepared to speak up for their rights, because there are groups who will speak against them. In this fight for equal rights, people have to come out and stand up and be counted."

A public forum will require representatives from groups otherwise shielded by the relative anonymity of writing letters to "come out," something most gays and lesbians in Hong Kong find extremely hard to do. Little progress can be expected if the task is left to the same small handful of activists who represent the public face of their community.

The make-up of the coming Legislative Council will also be a major determinant of whether a sexual orientation discrimination ordinance will be seen any time soon.

"I don't know how much support we will have if eventually we want to initiate a new policy initiative," says Fisher. "So far only a very small group of legislators has been talking about this."

He says it requires at least 30 votes to get a bill through LegCo, "and if we don't have 30 votes it doesn't really matter what we think. And that 30 votes will very much depend on community attitudes."

Gay groups will be asking each candidate for September's Legislative Council election to state their position on sexual orientation discrimination, as well as same-sex marriage and age of consent, which is 21 for homosexuals and 16 for heterosexuals.

The key issue in any debate about gay rights in Hong Kong will quite likely be the question of recognition of same-sex couples in a committed relationship.

Figuring prominently will be the case of Roddy Shaw and his partner, Nelson Ng, who want the Inland Revenue Department to recognise their marriage in Toronto last year under Canadian law and grant them the spousal tax rebate.

Fisher knows this is a potential time bomb. Shaw and Ng fully expect to end up before the Court of Final Appeal.

"If Roddy Shaw and Nelson Ng win in court, then they will have won the war, he says. "If the court says what we are doing now is wrong, we will change our ways to comply with the law.

"But having said all that, we strongly believe the law is on our side."

That is, marriage is a lifelong commitment between one man and one woman.

"We are not saying that we are not sympathetic to the situation of same sex couples," he says. "They cannot apply for a marriage couple allowance for their dependant partner, they cannot apply for public housing on the basis of their lifelong relationship, a partner of such a union cannot sign on behalf of the other partner in case of medical emergencies.

"All this we need to look at. The question basically is: do we go for a form of same-sex marriage or do we go for another approach; that is, recognise same-sex unions and provide certain rights and benefits to them?"

Fisher says the recent cases in the United States and Canada "have rung alarm bells and we are looking at our taxation legislation and our marriage law to see if someone married abroad and bringing to Hong Kong a foreign marriage certificate whether we can still deny them the marriage couple allowance."

But, ultimately, "there is tremendous opposition," he says, citing churches and religious groups, as well as the teaching profession.

Fisher believes Hong Kong has changed over the past 10 years.

"But if you talk to people about legislation against sexual orientation, they come up with very strong moral arguments. They really, genuinely, believe we shouldn't recognise homosexuals or same-sex marriage. It is an ethical, moral, thing in this society."

Counters Chung To: "Equal rights for Tongzhi is not a moral issue. It is about treating people fairly and equally. We are not asking for special privileges. We are asking for equal treatment."

Hong Kong

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