Roddy Shaw and Nelson Ng are having a spot of bureaucratic bother. Though they’re considered legally married in Canada, the Hong Kong SAR government insists they cannot possibly be married because they are not man and woman. Quite obviously they are two men.
Shaw and Ng have been closely watching international developments as they prepare for the next round of their two-year bureaucratic battle with the Inland Revenue Department to secure access to the spousal tax allowance.
In Taiwan, the government is expected on 10 December to introduce sweeping human rights legislation that will, among other things, accord full recognition of same-sex couples.
Shaw, 36, and his 31-year-old partner of five years Ng believe they have at least a case under international human rights, covered by Hong Kong’s Bill of Rights. Also, Article 37 of the Basic Law mini-constitution introduced in 1997 states: The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.
We expect to begin our case in the next few months, said Shaw, who recently completed his master of laws in international human rights at Hong Kong University and heads Civil Rights for Sexual Diversities, a non-governmental advocacy group.
The marriage of Shaw and Ng has been closely followed by the Hong Kong media, in particular the Chinese language press, which has of late shifted towards a more positive coverage of gays and lesbians. However, the religious right still gets considerable play, noteworthy because Christians number less than 600,000 of Hong Kong’s seven million predominantly Taoist population.
Hong Kong’s secretary for justice, Elsie Leung, said the SAR does not recognise the marriage in Canada of Shaw and Ng. She does not rule out a change in that position in the future, however, and should the courts find this to be in violation of human rights, the government may consider a suitable response.
A spokesperson for Patrick Ho, the secretary for home affairs, said: Since marriage is an issue that involves social-moral values and family ethics, it should be left for the community to judge.
Our society upholds monogamous marriage and our legislation only reflects the consensus reached by the community on the issue, the spokesperson said.
The Hong Kong administration has long held that the predominantly Chinese society is not ready to accept homosexuals, and education rather than legislation is necessary to change attitudes. This argument has been used since 1994, when the first of many attempts to include sexual orientation in laws against discrimination was defeated.
Amnesty International is critical of the SAR government’s performance over the past six years since the former British colony reverted to the sovereignty of China, not least on the issue of discrimination.
Using the -˜public opinion’ argument against legislation just doesn’t wash; you can’t use the majority’s opinion in order to avoid doing anything about discrimination against a minority, said Amnesty’s Hong Kong representative, Liz Whitelam.
Developments in Taiwan would suggest any perceived opposition to equal rights for homosexuals, including in terms of marriage, cannot be attributed to the fact that Hong Kong is a largely Chinese society.
The Human Rights Basic Law is expected to go before Taiwan’s Legislative Yuan on 10 December. If passed, it will extend full and equal rights to homosexuals, including the right to form a family.
Gay activists in Taipei say President Chen Shui-ban, with his Democratic Progressive Party (DPP) facing defeat next year by the conservative Kuomintang (KMT), has been promising the law since his election in 2000.
They are withholding celebration until the human rights law is actually passed.
If our government can really introduce this law it will make this country very special in Asia, said Hsu Yu-shen, whose marriage to Uruguayan partner Gray Harriman and their wedding banquet in 1996 gained international attention.
The 42-year-old writer said with the end of martial law in Taiwan in July 1987, the whole of society changed.
Hong Kong may also be changing. A survey conducted in March last year by the Polytechnic University found strong support for equal rights for gays and lesbians. Of 521 respondents across a wide age range, 70 percent agreed that homosexuals and heterosexuals should have equal rights in terms of building a family.
One event earlier this year put Hong Kong’s attitudes to same-sex relationships into sharp focus -“ the death of Canto-pop and film star Leslie Cheung. There was an outpouring of grief, but also a flood of sympathy for his partner of 18 years, Daffy Tong. The Cheung family acknowledged Tong by listing his name on the funeral notice in the place reserved for surviving husband or wife.
The public is far more accepting of same-sex relationships than the politicians give them credit for, said Shaw.
From a legal standpoint, there is currently no clear policy or expressed intention on the part of the Hong Kong government to address the needs of cohabitant couples, whether gay or heterosexual, says Dr Bart Rwezaura, senior lecturer in the Faculty of Law at the University of Hong Kong.
If Hong Kong is going to do anything, first of all Britain will be looked upon as a kind of model from the common law point of view and, secondly, in Hong Kong itself there has to be active political pressure to keep the issue on the agenda, Rwezaura said.
The Blair government’s inclusion of its civil partnership legislation in the Queen’s Speech, and the decision by the Conservative Party to allow a free vote on the issue, will not go unnoticed in Hong Kong.
But Shaw doesn’t like the British model, insisting gays and lesbians should have access to the same marriage as heterosexuals. Why should we have to ride on a separate bus to everyone else, even if both buses are heading in the same direction?
Fellow activist Chung To, of the education and equal rights charity Chi Heng Foundation, conceded that recognition of same-sex couples doesn’t need to be called marriage, but he too rejects a separate but equal system for lesbians and gays.
In some countries with strong religious traditions, pragmatic activists are willing to settle for domestic partnership or civil union for the time being. However, the creation of a separate system will only open the way for more discrimination in the future, he said.
Chung To doubts there will be any rush down the aisle by Hong Kong’s gays and lesbians if marriage is made available, and the British government doesn’t think its legislation will cause any queues.
Not being able to get married because the law prohibits you from doing so is very different from having the right to marry and choosing not to do so, said To.
Sydney journalist Tim Cribb is a Hong Kong-based foreign correspondent covering gay news in Asia.