August 4, 2015, by Editor
Legal protection against discrimination of LGBTI people: A tale of three cities in China
Written by Yiu Tung Suen.
Lesbian, gay, bisexual, transgender and intersex (LGBTI) people are gradually transforming from the ‘others’ in society – who were medically defined as ‘ill’ and legally defined as ‘criminal’ – to citizens whose rights to cultural, social and economic participation are increasingly recognized.
The rights of LGBTI people have developed at different rates, in different forms, and met with different levels of acceptance and resistance in different parts of the world. Legal reforms in different jurisdictions have included decriminalization of same-sex sexual practice, equalization of age of consent between heterosexuals and homosexuals, providing legal protection against discrimination of sexual minority, and legal recognition of same-sex relationships, in the forms of civil union or same-sex marriage.
Internationally, Yogyakarta Principles is a set of principles on the application of international human rights law in relation to sexual orientation and gender identity that was outlined by a panel of international experts and published by the United Nations in 2006. ‘The Rights to Equality and Non-discrimination’ was highlighted as a key principle to be adhered to. Discrimination on the basis of sexual orientation or gender identity was defined in this way:
… [it] includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms…
In the Chinese context, legal protection against discrimination of LGBTI people is virtually non-existent (except in Macau as I will illustrate below), and its development trajectory is also very different in different parts of the country. Let me talk about some recent developments in Shenzhen, Macau and Hong Kong – a tale of three very different cities.
The Chinese Labour Law protects workers against discrimination on the basis of a person’s ethnicity, gender or religion, but not sexual orientation. In Shenzhen, a Chinese court heard what is believed to be China’s first lawsuit over gay workplace discrimination. Mr Mu Yi (pseudonym used in the case) was filmed arguing with another gay man on a Shenzhen street in October 2014. The video was posted online and went viral, with netizens posting a huge number of parodies based on the film. Mr Yi was given the name “little red hat” because of the colour of the hat he was wearing. It was claimed that a week later, Mr Yi was fired from his job as a designer, but his employer argued that his dismissal was not on the ground of sexual orientation. Mr Yi sued in November 2014. The first hearing was in January 2015 and the second hearing was in June 2015.
If Mr Yi happened to live in Macau, he would face quite a different legal environment. Article 25 of the Basic Law of Macau states that ‘All Macao residents shall be equal before the law, and shall be free from discrimination, irrespective of their nationality descent, race, sex, language, religion, political persuasion or ideological belief, educational level, economic status or social conditions’ –sexual orientation was not a part of such a list of grounds on which discrimination is explicitly prohibited. However, discrimination against sexual orientation is prohibited in the fields of labour relations (article 6/2 of Law No. 7/2008 Labour Relations Law), protection of personal data (article 7/1,2 of Act 8/2005 Personal Data Protection Act) and ombudsman (article 31-A of Law 10/2000, as amended by Law 4/2012).
In Hong Kong, there has been no specific legislation against discrimination on the ground of sexual orientation, gender identity and intersex status in Hong Kong, although according to the Leung TC William Roy v. Secretary for Justice (2005) case, government sponsored discrimination on the ground of sexual orientation is prohibited.
In 1993, former legislator Anna Wu Hung-yuk proposed an Equal Opportunities Bill through a private member’s bill to outlaw discrimination on a variety of grounds, including sex, disability, age, race, and sexual orientation. However, when the equal opportunities law was enacted in 1995, sexual orientation was not included in the passage of the bill. Hong Kong eventually passed the Sex Discrimination Ordinance and Disability Discrimination Ordinance in 1995, the Family Status Discrimination Ordinance in 1997 and the Race Discrimination Ordinance in 2008, but not a sexual orientation discrimination ordinance.
The debate over legislating against discrimination on the ground of sexual orientation has once again become heated in the past few years, particularly in the year 2012-2013, when the legislative councilor Ray Chan Chi-chuen and a few well-known celebrities publicly declared their sexual orientation. However, the opposition has also raised their concerns. For example, in January 2013 The Evangelical Free Church of China Yan Fook Church organized the ‘Inclusive Love Praying Concert’ at Tamar Park, to voice their disapproval of legislation through singing and praying. The organizers estimated that 50,000 people joined the rally, whereas the police put the turnout at 5,000.
In 2012, the Legislative Council debated on whether the Government should conduct a public consultation on legislating against discrimination on the ground of sexual orientation with the motion proposed by Legislator Cyd Ho. Finally, the original motion and other amendments were defeated in the Legislative Council.
Although the Hong Kong government has introduced the ‘Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation’ (1996–1997) to employers, it is only an instructive guideline and not legally binding. The Equal Opportunities Commission (EOC) applies the Disability Discrimination Ordinance to certain complaints based on individuals’ transgender status, but such medicalization of transgender issues is criticized as insensitive to the subjective views of transgender people, who see their transgender status more as an identity rather than disability.
Commissioned by the Equal Opportunities Commission, the Gender Research Centre of the Hong Kong Institute of Asia Pacific Studies is conducting the ‘Feasibility study on legislating against discrimination on the grounds of sexual orientation, gender identity and intersex status in Hong Kong’. The multi-disciplinary research team at the Chinese University of Hong Kong consists of faculty members from 7 departments of the Chinese University of Hong Kong, including Sociology, Cultural Studies, Law, Psychology, Public Health, Education, and Social Work. The study aims to systematically identify the extent and forms of discrimination experienced by people with different sexual orientation, gender identity (SOGI) and intersex status, including lesbian, gay, bisexual, transgender and intersex people (LGBTI) in Hong Kong. The study also seeks to explore the feasibility of legislating against discrimination on the grounds of sexual orientation, gender identity and intersex status, taking into account the perspectives of sexual minorities and other stakeholders in the society.
Given all these developments above, it will be interesting to see how the tale of legal protection against discrimination of LGBTI people in these different cities develops.