Hongkonger claims stance violates her rights and is breach of Basic Law and Bill of Rights, but lawyer sounds note of caution saying failing to win could do serious harm to LGBT cause in city
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In an unprecedented legal bid in the city, the woman, known only as Mk, has argued that the stance impinges on her rights to privacy and equality, amounting to a breach of the Basic Law, the city’s mini constitution, and the Bill of Rights.
The application for a judicial review, which focuses specifically on civil partnerships and not same-sex marriage, was filed in a confidential court document in June, but details did not emerge until Friday during a preliminary hearing at the High Court.
The far-reaching implications of the case were apparent during the brief 30-minute hearing, as government lawyers said the litigation would involve input from all 13 government departments, and asked the court to grant them more time.
At present Hong Kong only recognises heterosexual marriage, and Mr Justice Anderson Chow Ka-ming indicated he expected the case to be heard in the first half of next year,
“We want legal status for everyone, regardless of their sexual orientation,” said lawyer Ng Gene-bond, who represents Mk.
he new challenge comes on the heels of the case of QT, a female expat who successfully challenged the Immigration Department in July, leading to the Court of Final Appeal ordering government to recognise same-sex marriages or civil unions entered into overseas for the purpose of granting dependent visas.
Another case, lodged by gay senior immigration officer Angus Leung Chun-kwong who argued that the Civil Service Bureau should give his husband spousal benefits, and the Inland Revenue should let him do a joint tax assessment, is pending a decision from the top court.
The city’s only openly gay lawmaker Raymond Chan Chi-chuen called the present challenge a significant one.
“It is a direct challenge to the whole system,” he said. “The government has no way to escape from studying all levels of policies [on treating same-sex partners] in the process.”
Joanne Leung Wing-yan, the chairperson of the city’s Transgender Resource Centre, also welcomed the move.
While she said some members of the city’s LGBT community are concerned such a direct challenge will fail, it was the right time to spark discussion on civil unions following the positive outcome of the QT case, and the pending decision over Angus Leung.
There was a word of caution, however, from lawyer Michael Vidler, who has litigated most of the LGBTI cases in Hong Kong, and represented QT.
He said the strategy that had been successfully adopted in Europe, the United States and in Hong Kong up to now, had been to advance incrementally and build up sufficient precedent to ensure success for a direct challenge.
He was concerned this case was premature.
“If this challenge fails it would set a bad precedent that will take many, many years to overcome.