A homosexual civil servant in Hong Kong has won a legal battle with his employer which means his husband will be entitled to the same benefits as heterosexual colleagues’ spouses.
Leung Chun-kwong, a senior immigration officer at the Civil Service Bureau, had legally married his partner Scott Adams in New Zealand in 2014.
He launched a legal challenge the following year against the secretary for the civil service and the commissioner of the Inland Revenue Department, who were reluctant to recognise the union when it came to employee benefits, as the law in Hong Kong does not recognise same-sex marriages.
The Civil Service Bureau claimed that it was denying the benefits, such as certain medical or dental treatment entitlements, to same-sex couples in order to protect “the integrity of the institution of marriage”. But the Court of First Instance ruled in Chun-kwong’s favour.
In his judgement, Justice Anderson Chow said the question that arose was whether it was “justifiable to accord differential treatment in respect of the ‘spousal’ benefits under the CSRs (Civil Service Regulations) based on sexual orientation”.
He said he was not persuaded that the reasons given by Lisa Wong, on behalf of the secretary, provided sufficient justification for the differential treatment.
“There is, so far as I can see, nothing illegal or unlawful for the Secretary to accord the same spousal benefits to homosexual couples who are legally married under foreign laws,” said Chow. “Neither can I see anything inherently wrong or impermissible, from a legal point of view, for the Secretary to have regard to, or indirectly recognise, an overseas same-sex marriage which is legally valid under the law of the place at which the marriage is contracted or celebrated.”
Chun-kwong was not successful in his case against the Inland Revenue, however. But the judgement could impact how other employers handle same-sex relationships, where the union has taken place overseas.
“The decision marks the rare judicial recognition of lesbian, gay, bisexual, and transgender rights in the city,” said solicitor Mark Daly, of Daly & Associates, which handled the case. “It is a small step forward and we call on the government as the city’s biggest employer to act as a role model.”
Julia Yeo, partner at Squire Patton Boggs Singapore, said that from an employment perspective, “the case is instructive on how equal opportunities and equal treatment should be understood”.
“This is clearly a landmark court ruling on the right of LGBT employees to be given the same benefits as heterosexual employees,” said Yeo.
“Differential treatment is not discrimination per se if there is a valid justification for it. In the case of Leung, the Court found no valid justification for depriving same sex partners of spousal benefits as that would not encourage heterosexual unions to gain advantage of the spousal benefits,” she added.
Yeo said that following the ruling, the question employers and HR professionals needed to ask was whether any eligibility criteria for employee benefits could be viewed as direct or indirect discrimination if there is no defensible or justifiable reason for that eligibility criteria. “Does the criteria further the goals/values of the company? And is the eligibility criteria in line with what the company may legitimately promote, for example,” said Yeo.
“It will be worthwhile for private employers to similarly review their compensation and benefit policies,” she recommended. “As for the Hong Kong government, which is the biggest employer on the island, this decision will have far-reaching implications since the potential number of employees mounting similar challenges on any discriminatory employment practices is correspondingly higher.”
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