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Response to the LegCo Home Affairs Panel's Paper on Discrimination on the Ground of Sexual Orientation

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Dear Members of the Home Affairs Panel of the Legislative Council,

I understand that the Home Affairs Panel of the Legislative Council is examining the issue of protection from discrimination on the basis of sexual orientation. It is first important to commend the serious attention attention that the Hong Kong government has demonstrated in regards to this issue--as reflected in the studies, surveys, and community consultations sponsored by the Home Affairs Panel and Home Affairs Bureau during the past five years. At the same time, as a member of the international human rights community, I am very concerned about the conclusions drawn in the recent Home Affairs Panel report on Discrimination on the Ground of Sexual Orientation. I urge the Home Affairs Panel to take all necessary steps to ensure equal protection and non-discrimination for the Tongzhi community in Hong Kong through legislative measures.
The report concluded that stereotypes and prejudices lie at the root of the problem of discrimination on the ground of sexual orientation. This is true. We differ, however, with the conclusion that self-regulation and education are the preferred response. The remedy for violations of rights is stronger protection of rights. The goal of human and civil rights standards is to protect all persons equally, without distinction or discrimination. Recognizing the need for protection against sexual orientation-based discrimination and abuse is an indispensible means by which the promise of universality can be fulfilled. The claims made on such a basis are neither to "new rights" nor to "special rights" but rather promote the extension of protections for human freedom and dignity to include the most vulnerable groups, and to publicize and prevent even the least visible and most easily concealed abuses and violations. It is in this spirit that in November 1995 the United Nations Human Rights Committee, in reviewing Hong Kong's compliance to its obligations as a signatory to the ICCPR, called on the government to adopt anti-discrimination legislation prohibiting discrimination on the ground of sexual orientation.

Presenting its interpretation of the 1996 consultation process, the report stated that an "overwhelming majority" of the 10,014 submissions received in response to the "Equal Opportunities" consultation paper was strongly opposed to legislation in respect of sexual orientation--with many in the educational and religious sectors considering this a form of "'reverse discrimination' against the rights of the majority who choose not to accept non-heterosexuality."

It is disappointing that, rather than examining the content of the submissions received, the paper condensed the views and responses of thousands of individuals and community groups into 4-5 sentences and a rough vote. Matters of respect and rights are trivialized when subjected to a popular vote. Indeed, even if a vast majority of people in a society dislike or disprove of a certain group, governments have the responsibility to take the stand that discrimination in all its forms is wrong. What the statistics in the report in fact reveal is the overwhelming strength of prejudice and bias within Hong Kong society--attitudes that, when acted upon, result in discrimination. The fact that so many respondents in the consultation process stated that they do not want the government of Hong Kong to provide protection to a particular group--an open display of resistance to providing or guaranteeing equality for all--itself provides a compelling case for the need for equal protection.

The report's claim that complaints of discrimination on the ground of sexual orientation have been "few and far between" in the past 3-4 years is also highly questionable. The struggles and difficulties reported by many in the Tongzhi community do not support this conclusion. Instead, that a government body would find only negligible discrimination toward a group that admittedly faces widespread prejudice and bias seems to reflect not the facts but the methodological bias of the government's study itself: it demonstrates a lack of sensitivity to identifying, acknowledging, and addressing such discrimination within existing government systems. As many Tongzhi community groups rightly point out, the Equal Opportunities Commission (EOC) is not expressly mandated to receive or handle cases that constitute a violation of civil rights based on sexual orientation protected under the Bill of Rights. As a result, fewer such claims reach the EOC: people do not present their cases to a body which seems not to guarantee effective action. In a society with limited social acceptance of a particular group of people, a person who wishes to make a discrimination claim must face the prospect of "going public", receiving intense scrutiny, and, in many cases, opening oneself to the possibility for further discrimination. Thus, without both explicit anti-discrimination measures in law and an express mandate by the EOC or another government body to examine and provide redress in cases of discrimination based on sexual orientation, any intention to extend legal protections to embrace widely stigmatized, vulnerable, or disadvantaged groups is meaningless.

The report claims that "not many" overseas countries adopt anti-discrimination legislation to tackle sexual discrimination based on sexual orientation. Yet this is hardly the case. The rapidly growing list of countries that recognize the importance of explicit anti-discrimination legislation for the fulfillment of international human rights standards includes not only several Western countries, but also many others throughout the world: South Africa, Costa Rice, Ecuador, Fiji, Brazil, and Israel are among them. It is especially significant that in November, after a process in which the lesbian and gay communities were consulted for the development of human rights guidelines, the government of Tokyo reportedly decided to include protection for "homosexuals" within its human rights legislation--thus becoming the first Asian municipality to set this progressive example. We urge the Panel on Home Affairs to examine these precedents as models for possible anti-discrimination protections in Hong Kong.

I encourage the Panel on Home Affairs to continue and expand its efforts to promote equal opportunities on the ground of sexual orientation through studies, publicity, and education, particularly with the active input and participation of Tongzhi community members at all steps in the process. Yet such non-legislative measures should complement, rather than substitute for, legislative enactment of equal protection on the basis of sexual orientation. Indeed, within an atmosphere of stigma and lack of social acceptance toward any given social group, codifying protection in law is essential as a statement of values, a deterrent to discrimination, and an educative tool in itself.

Thank you for your attention.

Sincerely,