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Values in Transition: The Development 

of the Gay and Lesbian Rights Movement 

in Hong Kong 



Carole J. Petersen* 



I. Introduction 



In the early 1980s, when Great Britain and the People's Re- 
public of China (PRC) negotiated the terms for returning Hong 
Kong to the PRC in 1997,^ a gay and lesbian rights movement was 
almost nonexistent in Hong Kong. Male homosexual conduct was a 
criminal offense punishable by a maximum term of life imprison- 
ment,^ and the local pohce maintained a special unit solely respon- 
sible for monitoring homosexual activity.^ The absence of any legal 
recourse left gays and lesbians vulnerable to discrimination at work, 
at school, and in the general community. Indeed, it was legal to dis- 
criminate on any ground at that time, and employers did so openly.'* 
Under this social climate, gays and lesbians maintained an extremely 



* Lecturer in Law, School of Professional and Continuing Education, University of 
Hong Kong. B.A., University of Chicago, 1981; J.D., Harvard Law School, 1984; Post- 
graduate Diploma in the Law of the People's Republic of China, University of Hong 
Kong, 1994. The author assisted in drafting the various Equal Opportunities Bills that 
this Article discusses. 

1. See Joint Declaration of the Government of the United Kingdom of Great Britain 
and Northern Ireland and the Government of the People's Republic of China on the 
Question of Hong Kong, Dec. 19, 1984, U.K.-P.R.C, 23 LL.M. 1371 [hereinafter Joint 
Declaration]. 

2. See Offences Against the Person Ordinance, Laws OF HONG KONG ch. 212 
(1981). 

3. See The Law Reform Comm'n of H.K., Report on Laws Governing 
HOMOSEXUAL Conduct 2 (1983) [hereinafter Law Reform Commission Report]. 

4. For a discussion of sex discrimination in Hong Kong and the Sex Discrimination 
Ordinance, Hong Kong's first anti-discrimination law enacted in 1995, see Carole J. Pe- 
tersen, Equality as a Human Right: The Development of Anti-Discrimination Law in 
Hong Kong, 34 COLUM. J. Transnat'L L. 335 (1996). 

337 



338 Loy. L.A. Int'l & Comp. LJ. [Vol. 19:337 

low profile in Hong Kong and were decidedly apolitical. In the 
words of one commentator, "[t]he homosexual minority is, on the 
whole, respectable, conformist in most things, and strongly pro- 
Establishment. Given the state of the law in the Colony, this is per- 
fectly understandable."^ 

In early 1997, only months before the transfer of sovereignty to 
the PRC, the atmosphere has significantly changed. Hong Kong 
now has a Bill of Rights that expressly grants individuals a right to 
privacy.^ As a result, the legislature has decriminalized most male 
homosexual conduct,^ and a small gay and lesbian rights movement 
has emerged. Hong Kong has also enacted its first anti- 
discrimination laws: the Sex Discrimination Ordinance^ and the 
Disability Discrimination Ordinance.^ In 1995, the legislature de- 
feated a broader bill prohibiting discrimination on the ground of 
sexuality;'^ however, a member of the legislature re-introduced the 
bill in 1996," and it is currently pending. In response to these legis- 
lative proposals, the Hong Kong government recently conducted a 
formal public consultation exercise on the problem of sexuality dis- 
crimination.' 

These changes, which occurred during the thirteen-year transi- 
tion period leading to Hong Kong's return to the PRC, stem largely 
from increased public demand for legal protection of human rights, 
democracy, and equality. This period of liberalization may, how- 
ever, eventually be remembered only as a brief interval in Hong 
Kong's history. When the PRC regains sovereignty over Hong 
Kong, the gay and lesbian rights movement may falter, subjecting its 
proponents not only to inequality, but also to persecution. 



5. H.J. Lethbridge, The Quare Fellow: Homosexuality and the Law in Hong Kong, 
6 H.K. L.J. 292, 321-22 (1976). 

6. See Hong Kong Bill of Rights Ordinance, LAWS OF HONG KONG ch. 383 (1991). 

7. See Crimes Ordinance, Laws OF HONG KONG ch. 200, §§ 118A-118N (1991). 

8. Sex Discrimination Ordinance, Laws OF HONG KONG ch. 480 (1995). 

9. Disability Discrimination Ordinance, LAWS OF HONG KONG ch. 487 (1995). 

10. See Equal Opportunities (Family Responsibility, Sexuality and Age) Bill, H.K. 
Gov't Gazette, June 30, 1995, Legal Supp. No. 3, at CI 660. 

11. See Equal Opportunities (Family Responsibility, Sexuality and Age) Bill, H.K. 
Gov't Gazette, June 28, 1996, Legal Supp. No. 3, at C1792. 

12. See HoNG KONG Gov't, EQUAL OPPORTUNITIES: A Study on Discrimi- 
nation ON the Ground of Sexual Orientation— A Consultation Paper app. 
Ill (1996) [hereinafter CONSULTATION PAPER]. 



1997] Gay & Lesbian Rights in Hong Kong 339 

Part II of this Article describes the laws against homosexual 
conduct prior to the transition period and analyzes the reasons that 
attempts to liberalize the law initially failed. Part III discusses the 
introduction of the Hong Kong Bill of Rights and demonstrates how 
it led to the decriminalization of homosexual conduct in 1991. Part 
IV analyzes the ongoing campaign to enact a law prohibiting dis- 
crimination on the ground of sexuality. Part V critiques the recent 
public consultation exercise on sexuality discrimination. Finally, 
Part VI briefly considers prospects for the gay and lesbian rights 
movement after 1997. 

XL Hong Kong's Laws Against Male Homosexual Conduct 

Prior to July 1991, Hong Kong law criminalized virtually all 
male homosexual conduct. A chapter entitled "Abominable Of- 
fenses" in the Offences Against the Person Ordinance'^ contained 
several provisions aimed at gay men. For example, section 51 pro- 
vided: 

Any male person who, in public or private, commits or is a 
party to the commission of, or procures or attempts to procure 
the commission by any male person of any act of gross inde- 
cency'^ with another male person shall be guilty of a misde- 
meanor triable summarily, and shall be liable to imprisonment 
for two years.' 

Other provisions did not solely criminalize homosexual behav- 
ior. Section 49 provided that "any person who is convicted of the 
abominable crime of buggery, committed with mankind or with 
any animal, shall be guilty of a felony and shall be liable to impris- 
onment for life."'^ Under Enghsh and Hong Kong law, the term 
"buggery" included both homosexual and heterosexual anal inter- 
course." Openly gay couples, however, were far more vulnerable to 



13. Offences Against the Person Ordinance, Laws OF HONG KONG ch. 212 (1981). 
The "abominable offences" have been part of Hong Kong law since 1865 when Hong 
Kong adopted the English Offences Against the Person Act of 1861. 

14. The case law defining the term "gross indecency" is sparse. Sexual contact be- 
tween the genitals of one man and the body of another is sufficient, but such contact may 
not always be required to prove the offense. See Law REFORM COMMISSION REPORT, 
supra note 3, at 58. 

15. Offences Against the Person Ordinance, Laws OF HONG Kong ch. 212, § 51. 

16. Id. § 49. 

17. See id. 



340 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:337 

suspicion and prosecution than heterosexual couples. 

Supporters of criminalizing homosexual behavior beheved that 
these laws emerged from the Chinese culture's strong aversion to 
homosexuality.'^ The actual source of these laws, however, is Eng- 
lish law — the origin of most criminal laws in Hong Kong since it be- 
came a British colony.'^ EngUsh criminal law prohibited all male 
homosexual conduct^" until the enactment of the Sexual Offences 
Act of 1967.^' The Act decriminalized homosexual acts in private 
between consenting adults, defined as persons twenty-one years of 
age or older.^^ In passing the Act, the British Parliament imple- 
mented one of the recommendations of the Departmental Commit- 
tee on Homosexual Offenses and Prostitution, commonly known as 
the Wolfenden Committee. Ten years earlier, the Wolfenden 
Committee had recommended the decriminalization of homosexual 
behavior in private between consenting adults. 

Hong Kong's legislature has generally followed England's lead 
with respect to statutory reform. In the case of the English Sexual 
Offences Act of 1967, however, there was initially very little call in 
Hong Kong to follow the English example of decriminalizing homo- 
sexual acts. This was partly due to conservative attitudes and a cor- 
responding lack of public discussion of sexual matters. Moreover, in 
the late 1960s, there were extremely few prosecutions for homosex- 
ual offenses, and the police made no real attempt to enforce the law 
against private consensual homosexual conduct. 

In the late 1970s, however, a series of events made Hong Kong 
significantly more dangerous for gay men. In 1978, a well-known 
English solicitor pled guilty to charges of buggery and gross inde- 
cency involving four fifteen-year old Chinese boys and was sen- 
tenced to three years imprisonment.^'' In 1979, while serving his sen- 
tence, the solicitor alleged in a petition for clemency that he was 



18. See Law Reform Commission Report, supra note 3, at 129. 

19. See id. at 54; Michael I. Jackson, The Criminal Law, in THE Law in HONG KONG 
1969-1989, at 178-80 (Raymond Wacks ed., 1989). 

20. Sexual Offences Act, 1956, 4 & 5 Eliz. 2, ch. 69, §§ 12(1), 13 (Eng.). 

21. Sexual Offences Act, 1967, ch. 60, § 1 (Eng.). 

22. The Act applied only to England and Wales and did not extend to other British ter- 
ritories, such as Hong Kong. Id. § 11(5). 

23. See HOME OFFICE, SCOTTISH HOME DEP'T, REPORT OF THE COMMITTEE ON 

HOMOSEXUAL Offences and Prostitution, 1957, Cmnd. 247, at 115. 

24. See Law Reform Commission Report, supra note 3, at 2. 



1997] Gay & Lesbian Rights in Hong Kong 341 

discriminated against and subjected to selective enforcement of the 
law. He also threatened to name many "high-placed" gay men.^^ 

As a result of these allegations and evidence discovered during 
the course of the solicitor's prosecution, the government established 
a Special Investigation Unit (SIU) within the Criminal Investigation 
Department of the Royal Hong Kong PoHce Force. The SIU was 
responsible for investigating homosexual activities, particulariy male 
prostitution and the procurement and exploitation of minors.^^ This 
effort, known as "Operation Rockcorry," led to the arrest of several 
individuals, several of whom were charged and tried in court. ^ 

In a letter to the Commissioner of Police, the Hong Kong At- 
torney General stated that "the primary target [of Operation Rock- 
corry] should be those who profit from homosexuality through pro- 
curing"^* and "[t]he second targets should be homosexuals who 
abuse young boys [eighteen years of age and younger] or other per- 
sons under . . . other disabihty."^^ The Attorney General failed, 
however, to articulate a policy of not prosecuting non-procured ho- 
mosexual activity between consenting adults. He cautioned against 
actively searching for evidence of such conduct, but stated that the 
"third targets should be homosexuals against whom credible evi- 
dence emerges during other investigations."^*^ He also noted that a 
complaint of homosexual activity from a member of the public could 
not be ignored, but "must be acted upon in the normal way." ' 

This policy change particularly threatened gay male lawyers or 
those employed in other jobs related to law enforcement. With re- 
spect to these individuals, the Attorney General instructed the 
Commissioner of Police as follows: 

An exception to the above guidance in relation to consenting 
adults should be made in the case of credible 'leads' against ei- 
ther members of the Judiciary or of the Attorney General's 
Chambers or of other lawyers in active practice in the Courts or 
of the Police. Assuming such leads to be credible, then these 



25. See id. at 25. 

26. See id. at 2. 

27. See id. 

28. Id. annexure 28 at A214. 

29. Id. annexure 28 at A214-15. 

30. Id. annexure 28 at A215. 

31. Id. 



342 Loy. L.A. Int'l & Comp. LJ. [Vol. 19:337 

should be followed up, because it is unacceptable to have those 
charged with the enforcement of the law themselves to be de- 
liberately breaking it.^^ 

Thus, even a barrister in private practice was vulnerable to prosecu- 
tion if the police received a "credible lead" of his homosexual activ- 
ity. 

Fearing a witch hunt, a number of academics, lawyers, and so- 
cial workers began criticizing the SIU and the laws that it sought to 
enforce." In mid-1979, 424 individuals petitioned the government to 
decriminalize homosexual conduct between consenting adults. "* 

The issue received further publicity in January 1980 when John 
MacLennan, a Scottish Inspector with the Royal Hong Kong Police, 
mysteriously died. The SIU had investigated MacLennan, and his 
arrest for "acts of gross indecency" with male prostitutes was immi- 
nent. When the police arrived at his home to arrest him, however, 
they found him dead from five gunshot wounds, all but one in the 
area of the heart. Although the police found a suicide note, others 
alleged that MacLennan had been "set up" and then murdered be- 
cause he possessed a list of government officials and prominent 
community members who were gay.^^ Consequently, the govern- 
ment appointed Sir Ti Liang Yang, Justice of the Court of Appeal, 
to conduct an inquiry into the matter.^^ After a 134-day investiga- 
tion, Sir Yang found that MacLennan had committed suicide be- 
cause he feared his arrest.^^ Nonetheless, the pubhc debate over the 
circumstances of MacLennan's death continued for several years.^^ 

Amidst this controversy, the government created the Law Re- 
form Commission of Hong Kong (Law Reform Commission). As 
one of its initial topics for consideration, the Law Reform Commis- 



32. Id. 

33. See, e.g.. Ami- Homosexuality Laws Blasted as 'Wicked', S. CHINA MORNING 
POST, July 14, 1979; Is This the Witch-hum of the Cemury?, S. CHINA MORNING POST, 
Mar. 20, 1980. 

34. Law Reform Commission Report, supra note 3, at 2. 

35. See T.L. Yang, A SUMMARY OF THE REPORT OF THE Commission of Inquiry 
INTO Inspector MacLennan's Case 5 (1981). 

36. See id. at 3-16. 

37. See id. at 15. 

38. See Mariana Wan, Shots That Changed the Law, S. CHINA MORNING POST, Jan. 
20, 1991, Spectrum, at 5; Shane Green, MacLennan: Doubt Still Casts a Shadow, S. 
China Morning Post, Jan. 13, 1990, Review, at 1. 



1997] Gay & Lesbian Rights in Hong Kong 343 

sion chose the laws against homosexual acts/^ The Law Reform 
Commission created an eight-member subcommittee headed by Sir 
Yang. The subcommittee's "terms of reference" included: medical 
views of homosexuality; laws on homosexual conduct in other coun- 
tries, particularly those with a Chinese population; incidences of 
homosexual offenses and "exploitation" of homosexuality, such as 
blackmail; and means of obtaining the views of the general public 
and interested parties, including ways in which gay men could safely 
give evidence to the Law Reform Commission/" 

The subcommittee solicited the views of the public at large, 
numerous organizations, and members of the District Boards, ar- 
guably the only representative bodies in the Hong Kong govern- 
ment at that time/' The District Boards predominantly disfavored 
amending the laws because decriminalization "would offend the 
moral sense of the majority of the Chinese population of Hong 
Kong[,] . . . would imply that the government encourages such ac- 
tivities[,] . . . might have an] undesirable . . . effect on the younger 
generation[,] and might lead to family disorganization and social 
disintegration."^^ Public opinion polls indicated that these views 
were representative of the Hong Kong Chinese. For example, in 
one survey, seventy percent of Chinese respondents supported the 
maintenance of homosexual offenses, and most respondents cited 
"Chinese morals" as their reason.'*^ 

Nonetheless, in 1983, after a three-year investigation, the Law 
Reform Commission published a lengthy report recommending de- 
criminalization of homosexual acts between consenting adults. The 
Law Reform Commission based its recommendations on its findings 
as follows: there are no "victims" of private consensual sex between 
two adult men; the law should not unnecessarily interfere in private 
lives; anti-homosexuality laws are difficult to enforce and unlikely to 
deter homosexual conduct; and such laws caused gay men substan- 
tial anxiety because they made gay men vulnerable to blackmail and 



39. See Law Reform Commission Report, supra note 3, at 3. 

40. 5ee /<i. annexure 1(11) at A3. 

41. See id. 

42. Id. annexure 11(11) at All 5. 

43. See COMMERCIAL Radio Opinion Survey Serv., Public Opinion Survey 
(1980), reprinted in LAW REFORM COMMISSION REPORT, supra note 3, annexure 21 at 
A179, A185. 



344 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:337 



44 



Other forms of abuse and exploitation. 

The Law Reform Commission acknowledged that decriminaliz- 
ing homosexual acts without public acceptance might be viewed as 
the "imposition of an alien concept by an expatriate government on 
Chinese people;""^ however, the Law Reform Commission rejected 
this argument, reasoning that much of the public's views appeared to 
be based upon "a lack of knowledge of the true facts. ""^ In particu- 
lar, the Law Reform Commission cited the inaccuracy of the view 
that homosexuality is a Western disease "alien" to Hong Kong and 
noted that homosexuality has always existed in Chinese societies "in 
equal measure" to other races."*^ 

Despite these arguments, public opinion prevailed, and the 
Hong Kong government chose not to implement the Law Reform 
Commission's recommendations. At the time, neither the govern- 
ment nor the legislature were formally accountable to the Hong 
Kong people because the British government appointed the Gover- 
nor and the Legislative Council consisted entirely of government 
officials and other appointed members. Nonetheless, the colonial 
government was unwilling to defy public opinion on such a sensitive 
issue. 

in. The Hong Kong Bill of Rights and Decriminalization 
OF Homosexual Conduct 

Approximately two years after the publication of the Law Re- 
form Commission's report on homosexual offenses. Hong Kong en- 
tered a new era. In May 1985, Great Britain and the PRC ratified 
the Joint Declaration of the Government of the United Kingdom of 
Great Britain and Northern Ireland and the Government of the 
People's Republic of China on the Question of Hong Kong (Joint 
Declaration),"^ agreeing that Great Britain would return Hong Kong 
to the PRC in 1997.^^ The Joint Declaration created great concern 
in Hong Kong because most people would have preferred that Hong 



44. See id. at 120-22, 128-37. 

45. Id. at 130. 

46. Id 

47. Id. 

48. Joint Declaration, supra note 1. 

49. See id paras. 1-2, at 1371. 



1997] Gay & Lesbian Rights in Hong Kong 345 



50 



Kong remain a British-dependent territory. 

In order to allay people's concerns about Hong Kong's return 
to the PRC, the Joint Declaration promised that the Special Admin- 
istrative Region of Hong Kong would enjoy a "high degree of 
autonomy" from the PRC's national government" and would retain, 
for at least fifty years, the same legal and economic systems, rights 
and freedoms, and basic way of life that existed prior to 1997/ The 
Basic Law of the Hong Kong Special Administrative Region of the 
People's Republic of China (Basic Law)," which will serve as Hong 
Kong's quasi-constitution after 1997, repeats these statements.^'* 

Nonetheless, many people in Hong Kong feared that the PRC 
would not adhere to the Joint Declaration and Basic Law. Moreo- 
ver, people expected that even Hong Kong's existing legal system 
would be subject to abuse after 1997 because it gave the Hong Kong 
government enormous powers.^' In the summer of 1989, when one 
milHon Hong Kong residents marched to protest the massacre in 
Beijing's Tiananmen Square, public confidence in the future of 
Hong Kong sank "to an all-time low."^^ 

In an attempt to rebuild confidence, the Hong Kong govern- 
ment announced the introduction of domestic human rights legisla- 
tion. A draft of the bill was released for public consultation in 
March 1990, and the Bill of Rights Bill was formally introduced into 
the Legislative Council in July 1990. After further public consulta- 
tion and amendments, the Bill of Rights was enacted in July 1991.'^ 

In drafting the Bill of Rights, the Hong Kong government used 



50. A 1982 survey reported that 70% of respondents preferred that Hong Kong main- 
tain the status quo and an additional 15% preferred that Hong Kong become a British 
"trust territory." See JOSEPH Y.S. CHENG, HONG KONG IN SEARCH OF A FUTURE 85 
(1984). Only 4% preferred that Hong Kong be returned to China. See id. 

51. See Joint Declaration, supra note 1, para. 3(2), at 1371. 

52. See id. para. 3(5), at 1372. 

53. Basic Law of the Hong Kong Special Administrative Region of the People's Re- 
public of China (1990), reprinted in 29 I.L.M. 1519 (1990) [hereinafter Basic Law]. 

54. See id. arts. 2, 4-5, reprinted in 29 LL.M. 1519, 1521 (1990). 

55. For a discussion of controls on freedom of expression and assembly under Hong 
Kong colonial law, see Yash Ghai, Freedom of Expression, in HUMAN RIGHTS IN HONG 
KONG 369 (Raymond Wacks ed., 1992); Roda Mushkat, Peaceful Assembly, in HUMAN 
Rights in Hong Kong, supra, at 410. 

56. Norman Miners, The Government and Politics of Hong Kong 27 (5th 
ed., 1991). 

57. Hong Kong Bill of Rights Ordinance, Laws OF HONG KONG ch. 383 (1991 ). 



346 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:337 

as its model the International Covenant on Civil and Political Rights 
(ICCPR)/^ which had applied to Hong Kong since May 20, 1976, the 
date of the United Kingdom's ratification of the ICCPR.^^ The main 
reason for relying on the ICCPR was the Chinese government's 
agreement that "the provisions of the [ICCPR] . . . shall remain in 
force and shall be implemented through the laws of the Hong Kong 
Special Administrative Region. "'° The Hong Kong government 
hoped that China would have difficulty objecting to a Bill of Rights 
that essentially repeated agreed-upon rights. 

A major issue during the consultation on the draft Bill of Rights 
was the extent to which the Bill of Rights could preempt existing 
law. Section 3 addressed this issue in providing: "(1) All pre- 
existing legislation that admits of a construction consistent with 
this Ordinance shall be given such a construction. (2) All pre- 
existing legislation that does not admit of a construction consistent 
with this Ordinance is, to the extent of the inconsistency, re- 
pealed."^' Thus, section 3 obligated courts to interpret preexisting 
legislation in a manner consistent with the Bill of Rights, and if this 
proved impossible, to declare the offending provision invalid.^^ 

Making subsequent legislation subject to the Bill of Rights, 
however, was more difficult. Under the Colonial Laws Validity Act 
of 1865,^^ a British Parliament act that applies to Hong Kong, only a 
representative colonial legislature has the power to enact a law that 
affects its own constitution.^"* As the Hong Kong law-making bodies 



58. International Covenant on Civil and Political Rights, opened for signature Dec. 
19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 

59. See id. 

60. Basic Law, supra note 53, art. 39, reprinted in 29 I.L.M. 1519, 1526 (1990). This 
language appeared in article 38 of the April 1988 draft and article 39 of the February 1989 
draft. See The Hong Kong Basic Law: Blueprint for "Stability and Pros- 
perity" Under Chinese Sovereignty? 73, 150, 176 (Ming K. Chan & David J. Clark 
eds., 1991). 

61 . Hong Kong Bill of Rights Ordinance, Laws OF HONG KONG ch. 383, § 3. 

62. As a result of the Court of Appeal's decision in Tarn Hing-yee v. Wu Tai-wai, 
[1992] 1 H.K.L.R. 185 (Ct. App.), however, the Bill of Rights does not affect legislation 
concerning disputes between private parties. For a criticism of this decision, see Andrew 
Byrnes & Johannes Chan, Editorial, The Court of Appeal's Decision in Tarn Hing-yee v. 
Wu Tai-wai, BILL Rts. BULL., Dec. 1991, at 1-4. 

63. Colonial Laws Validity Act, 1865, 28 & 29 Vict., ch. 63 (Eng.). 

64. See id. § 5. 



1997] Gay & Lesbian Rights in Hong Kong 347 

clearly were not representative," they could not restrict their own 
powers by enacting a Bill of Rights that purported to be superior to 
future legislation. Ultimately, the British government amended the 
Letters Patent — Hong Kong's colonial constitution that empowers 
the Hong Kong legislature until July 1, 1997 — to provide: "No law 
of Hong Kong shall be made... that restricts the rights and freedoms 
enjoyed in Hong Kong in a manner that is inconsistent with [the 
ICCPR]."'^ By referring to the ICCPR rather than the Bill of 
Rights, the British and Hong Kong governments hoped to provide a 
certain continuity beyond 1997. 

Thus, for the first time, people in Hong Kong were given the 
right to challenge laws that violated their basic human rights. For 
gay men, the most significant right at that time was the right to 
privacy, which article 14 expressly protected: "(1) No one shall be 
subjected to arbitrary or unlawful interference with his privacy, 
family, home or correspondence, nor to unlawful attacks on his 
honour and reputation. (2) Everyone has the right to the protec- 
tion of the law against such interference or attacks. "^^ This lan- 
guage is identical to article 17 of the ICCPR.^^ 

If a Hong Kong court had been called upon to interpret the 
language in a challenge to the laws against homosexual conduct, 
the court would have sought guidance from international decisions 
interpreting similar provisions.^^ When the Bill of Rights was pro- 



65. Under the Letters Patent, the colonial Constitution of Hong Kong, the legislature 
is the "Governor, by and with the advice and consent of the Legislative Council." HONG 
Kong Letters Patent 1917 to 1993 art. VII(l). The British government appoints the 
Governor, and in July 1991, the Legislative Council was constituted as follows: 11 ap- 
pointed "officials" (officers in the government), 20 appointed non-governmental mem- 
bers, 14 members elected by "functional constituencies" (elitist business and professional 
groups), and 12 indirectly elected members. See MINERS, supra note 56, at 116 tbl. 5. 

66. Hong Kong Letters Patent 1917 to 1993 art. VII(5). This amendment en- 
tered into force on June 8, 1991 — the same day that the Bill of Rights Ordinance entered 
into force. See HoNG KONG Gov't, An Introduction to Hong Kong Bill of 
Rights Ordinance 2 (1995). 

67. Hong Kong Bill of Rights Ordinance, Laws of Hong Kong ch. 383, art. 14 
(1991). 

68. Compare id. with ICCPR, supra note 58, art. 17. 

69. See R v. Sin Yau Ming, [1992] 1 H.K.P.L.R. 88, 107-08 (Ct. App.) (stating that it is 
proper for courts interpreting the Bill of Rights to derive guidance from decisions in 
common law jurisdictions with constitutionally entrenched bills of rights and from deci- 
sions of the European Court of Human Rights, the European Human Rights Commission, 
and the United Nations Human Rights Committee). 



348 Loy. L.A. Int'l & Comp. LJ. [Vol. 19:337 

posed, the leading international decision regarding the right to pri- 
vacy and homosexual offenses was the 1982 Dudgeon Case, in 
which the European Court of Human Rights held that Northern 
Ireland's laws breached article 8 of the European Convention for 
the Protection of Human Rights and Fundamental Freedoms 
(ECPHRFF)^^ for consenting males over 21 years of age/^ Article 
8 of the ECPHRFF is similar, though not identical, to article 14 of 
the Hong Kong Bill of Rights. It provides: 

(1) Everyone has the right to respect for his private and family 
life, his home and his correspondence. 

(2) There shall be no interference by public authority with the 
exercise on this right except such as is in accordance with the 
law and is necessary in a democratic society in the interests of 

- national security, public safety or the economic well-being of 
the country, for the prevention of disorder or crime, for the 
protection of health or morals, or for the protection of the 
• rights and freedoms of others.^' 

The Dudgeon Case would have been particularly relevant to 
Hong Kong because Northern Ireland's law against homosexual 
conduct was almost identical to Hong Kong's law, having also been 
derived from English law prior to the Sexual Offences Act of 
1967.^^ Moreover, attempts to reform Northern Ireland's law 
failed for many of the same reasons that efforts to reform Hong 
Kong's law failed — public opposition and the desire to appear 
sensitive to local opinion.^^ In 1972, the Northern Ireland Parlia- 
ment was prorogued, and the country was subjected to "direct 
rule" from Westminster.'^ The United Kingdom argued in the 
Dudgeon Case that the imposition of direct rule meant that it had 
a special responsibility to take full account of the wishes of the 
Northern Ireland people before decriminalizing homosexual acts.^ 



70. Dudgeon v. United Kingdom, 40 EUR. Cr. H.R. (ser. B) (1982). 

71. European Convention for the Protection of Human Rights and Fundamental 
Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECPHRFF]. 

72. See Dudgeon, 40 EUR. Ct. H.R. (ser. B) at 41. 

73. ECPHRFF, supra note 71, art. 8, at 229. 

74. See Dudgeon, 40 EUR. Ct. H.R. (ser. B) at 15-16. 

75. See id. at 17-21. 

76. See id. at 17. 

77. See id. at 28. 



1997] Gay & Lesbian Rights in Hong Kong 349 

The European Court of Human Rights noted these argu- 
ments, but ultimately held that the United Kingdom failed to jus- 
tify its interference with Dudgeon's private life. The court relied 
in part on the fact that, in recent years, the authorities had gener- 
ally refrained from applying the laws to homosexual acts in private 
between consenting adults. Yet, there was no evidence adduced to 
show that this refrain had been injurious to moral standards in 
Northern Ireland.^^ Ultimately, the court held that there was a 
breach of article 8 of the ECPHRFF.'' 

If gay men had ever used the Bill of Rights to challenge Hong 
Kong's laws against homosexual conduct, the Dudgeon Case would 
have provided strong persuasive authority. Fortunately, the Hong 
Kong government recognized this fact, took a proactive approach, 
and used the Bill of Rights to successfully amend the laws and de- 
criminalize homosexual conduct; thus, no such challenge was re- 
quired. 

Hong Kong achieved decriminalization in two stages. First, in 
the summer of 1990 after the proposal of the Bill of Rights, but prior 
to its enactment, the Legislative Council debated the question of de- 
criminalizing homosexual conduct between consenting adults. The 
government had not yet drafted an amendment to the law because it 
wanted to first ascertain the extent of legislative support. Several 
members of the Legislative Council opposed the debate, preferring 
to allow the courts to resolve the issue of decriminalization after the 
enactment of the Bill of Rights. Nonetheless, the government per- 
sisted, and the Legislative Council held a debate on July 11, 1990.^° 

The Chief Secretary, the next highest government official to the 
Governor, began the debate with a strongly worded speech in favor 
of decriminalization. He cited the Law Reform Commission's ar- 
guments and claimed that the laws against homosexual conduct 
would soon "be open to challenge under the [proposed] Bill of 
Rights."^' In further support of decriminalization, the Attorney 
General argued that the laws conflicted with the ICCPR: "It hardly 
needs saying that the laws of Hong Kong are required, in accor- 



78. See id. at 40. 

79. See id. at 4\. 

80. See OFFICIAL REPORT OF PROCEEDINGS, HONG KONG LEGISLATIVE COUNCIL 
1949 (July 11, 1990). 

81. Id. at 1969. 



350 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:337 

dance with our international obligations, to be consistent with those 
obligations."^^ The government solidified the Bill of Rights argu- 
ment with its threat to intensify its enforcement of the laws if they 
were not reformed. The Chief Secretary borrowed the words of an 
eminent French statesman Jean Baptiste Co Hert in stating: 

"If you enact a law and do not enforce it, you are condoning 
what you condemn." A vote against the motion before this 
Council will be a vote against condoning and in favour of en- 
forcement. And henceforth the Government would be obliged 
to seek out and prosecute all, both high and low, who infringe 
against this law, despite all the problems I have mentioned.*^ 

If the government had followed through on this threat, it would have 
instigated a "witch hunt" far worse than Operation Rockcorry, em- 
barrassed the Legislative Council, and invited a challenge under ar- 
ticle 14 of the Bill of Rights. Thus, the government made it ex- 
tremely difficult for the Legislative Council to vote against its 
motion. 

Twenty-three members of the Legislative Council also spoke on 
the motion. Some members were willing to support decriminaliza- 
tion on the merits. Others disapproved of homosexual conduct, but 
felt obhgated to support the motion in view of the Bill of Rights' 
imminent enactment. These members explained their vote for de- 
criminalization as a necessary consequence of the strong public sup- 
port for the Bill of Rights. 

Inevitably, the motion passed by a comfortable margin of 
thirty-one to thirteen with six abstentions. The government viewed 
this vote as its mandate and proceeded to draft the Crimes 
(Amendment) Bill.*'* The Bill decriminialized male homosexual 
conduct in private between two consenting adults, defined as per- 
sons twenty-one years of age or older.*^ It was enacted in July 1991, 



82. Id. at 1971. 

83. Id. at 1966. 

84. Crimes (Amendment) Bill (1991), H.K. GOV'T GAZETTE, Mar. 22, 1991, Legal 
Supp. No. 3,atC215. 

85. Section 26 repealed sections 49 through 53 of the Offences Against the Person 
Ordinance. See id. § 26, H.K. Gov't Gazette, Mar. 22, 1991, Legal Supp. No. 3, at 
C228. Section 3 added various offenses to the Crimes Ordinance, such as nonconsensual 
buggery, homosexual buggery by or with a man under the age of 21, and "non-private" 
homosexual conduct, which included homosexual conduct by more than two participants. 
See id § 3, H.K. Gov't Gazette, Mar. 22, 1991, Legal Supp. No. 3, at C218-C221. The 



1997] Gay & Lesbian Rights in Hong Kong 351 

shortly after the Bill of Rights.'' 

IV. The Campaign for Legislation Prohibiting Sexuality 

Discrimination 

Decriminalization certainly made Hong Kong a safer place for 
gay men, but it did little to address the problem of discrimination. 
Most gay men and lesbians still found it necessary to conceal their 
sexuahty because those who "came out" risked employment termi- 
nations, apartment evictions, and general avoidance by the commu- 
nity. 

The Hong Kong government's failure to legislate against dis- 
crimination was not simply due to a lack of sympathy for gays and 
lesbians. The government had long opposed any legislation pro- 
scribing discrimination and maintained many laws and policies that 
blatantly discriminated against women.*' In the absence of any legal 
sanctions. Hong Kong employers openly discriminated on the 
grounds of sex, age, and race. Job advertisements, such as "male 
engineer" or "female European receptionist under [thirty years of 
age]," appeared regularly in the newspapers.'* 

The women's movement had unsuccessfully lobbied for legis- 
lation prohibiting sex discrimination for many years. When the Bill 
of Rights was first proposed, women actively participated in the con- 
sultation process, hoping to use it as a weapon against discrimina- 
tion. In fact, although the Bill of Rights proclaims the right to 
equality, it actually has had httle direct impact upon the equality 
movement.'^ Nonetheless, the Bill of Rights consultation process 
allowed women to educate legislators and the public about the ex- 
tent of sex discrimination in Hong Kong. The Bill of Rights also in- 
creased the credibility of the women's movement as equality at least 
became recognized as a protected right. 

In preparation for 1997, Hong Kong changed the composition 



current law, which continues to regulate homosexual conduct more strictly than hetero- 
sexual conduct, can be found in the Crimes Ordinance, Laws OF HONG KONG ch. 200, §§ 
118A-118N(1991). 

86. Crimes (Amendment) Ordinance, Ord. No. 90 (1991), H.K. Gov't Gazette, 
July 12, 1991, Legal Supp. No. 1, at A573. 

87. See Petersen, supra note 4, at 339-46 (emphasis added). 

88. See id. at 347-48. 

89. See id. at 356-59 (giving reasons why the Bill of Rights failed to have a greater 
impact on the equality movement). 



^ 



> ,■*■.- • ■'■'i 



Canada-Hong Kong Resource Cevitre 

I Sp«dint Cmccni. Rm III* ToroMo. CMt«<to • M)S I Al 



352 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:337 

and role of the Legislative Council. These changes were very sig- 
nificant developments for the equality movement. In September 
1991, Hong Kong held its first direct elections for eighteen Legisla- 
tive Council seats. Women's organizations formed a coalition that 
asked candidates to declare their positions on discrimination. As a 
result, many legislators revealed their support for women's rights 
and criticized the government's failure to legislate against discrimi- 

90 

nation. 

The equality movement also found a few allies among ap- 
pointed members of the Legislative Council. When Chris Patten 
became Governor, he made several "hberal" appointments to the 
Legislative Council. Two of the appointees, Anna Wu and Christine 
Loh, became strong advocates for equahty rights. Devoted to 
achieving equality, Wu's primary legislative goal was to introduce a 
comprehensive anti-discrimination bill. She drafted two bills: (1) 
the Equal Opportunities Bilf and (2) the Human Rights and Equal 
Opportunities Commission Bill (Commission Bill).^^ The Equal 
Opportunities Bill prohibited discrimination on various grounds, 
including sex, marital status, pregnancy, family responsibility, dis- 
ability, sexuality, race, age, political and rehgious conviction, and 
"spent conviction." ^^ The Equal Opportunities Bill proscribed such 
discrimination in employment, education, housing, and the admini- 
stration of laws and government programs.^"* The Commission Bill 
created an independent public body to promote and enforce the 
Equal Opportunities Bill and other internationally recognized hu- 



90. For example, in December 1992, the Legislative Council directly contradicted 
government policy by voting unanimously in favor of a motion urging the Hong Kong 
government to request the British government to extend the United Nations Covenant on 
the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted 
1249 U.N.T.S. 13, to Hong Kong. Emily Lau, a directly elected legislator who had 
pledged to support women's rights, proposed the motion debate. For a discussion of the 
motion debate, see Petersen, supra note 4, at 363-66. 

91. Equal Opportunities Bill (1994), H.K. GOV'T GAZETTE, July 1, 1994, Legal Supp. 
No. 3,atC991. 

92. Draft Human Rights and Equal Opportunities Commission Bill (1994), reprinted 
in Hong Kong Bill of Rights: 1991-1994 and Beyond 85 (George Edwards & An- 
drew Byrnes eds., 1995). 

93. Equal Opportunities Bill §§ 10-205 (1994), H.K. GOV'T GAZETTE, July 1, 1994, 
Legal Supp. No. 3, at C1026-C1218. 

94. See id. 



1997] Gay & Lesbian Rights in Hong Kong 353 



95 



man rights. 

By personally drafting these bills, Wu made history. In the 
Hong Kong legal system, the government usually proposes and 
drafts bills, and the Legislative Council studies and votes on them 
and proposes amendments. Although the Legislative Council's 
Standing Orders permit the introduction of "private members' 
bills," this provision had only been used for bills to regulate the af- 
fairs of a charity or other private institution.^^ In 1991, Martin Lee 
became the first non-governmental member to introduce to the 
Legislative Council a short pubhc bill to amend the Electoral Provi- 
sions Ordinance.^^ Wu's Equal Opportunities Bill, however, was the 
"first private member's bill covering an entire area of law."^^ 

In addition to other obstacles, Wu faced an important constitu- 
tional constraint. A Legislative Council member must obtain the 
Governor's express permission before introducing any bill "the ob- 
ject or effect of which may be to dispose of or charge any part of 
Our revenue arising within the colony. "^^ Wu's Commission Bill 
necessarily required the expenditure of funds for the creation of a 
new public body. Ultimately, the Governor exercised his constitu- 
tional power to prevent Wu from introducing the Commission Bill 
into the Legislative Council. '°° Wu prevented the Governor from 
blocking the Equal Opportunities Bill, however, by making it sepa- 
rate and enforceable through existing courts. 

Wu used Australian legislation as her model for the Equal Op- 
portunities Bill. She chose Austrahan law over Enghsh law, which is 
often followed in Hong Kong, because Australian law is more recent 
and prohibits more types of discrimination. During the drafting 
process, Wu met with numerous organizations, including women's 
organizations, gay rights groups, and disability rights groups, in or- 
der to make the proposed legislation suitable for Hong Kong. When 



95. Draft Human Rights and Equal Opportunities Commission Bill §§ 62-101 (1994), 
reprinted in HONG KONG BILL OF RIGHTS: 1991-1994 AND BEYOND 123-34 (George 
Edwards & Andrew Byrnes eds., 1995). 

96. 5eeMlNERS, 5u/?ra note56, at 121. 

97. See Kathleen Cheek-Milby, A Legislature Comes of Age: Hong 
Kong's Search for Influence and Identity 243 (1995). 

98. Id. 

99. HONG KONG ROYAL INSTRUCTIONS 1917 TO 1993 cl. XXIV, 1 2(c). 

100. See Exco Rejects Wu's Rights Commission, E. EXPRESS (Hong Kong), June 22, 
1994, at 1. 



354 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:337 

she completed drafting the Equal Opportunities Bill in March 1994, 
Wu conducted a formal public consultation. She subsequently in- 
troduced the bill into the Legislative Council in July 1994. A Bills 
Committee was formed in August 1994 to study the bill and met 
regularly for most of the 1994-1995 legislative session.^"' 

The Bills Committee's task became more complicated in Octo- 
ber 1994 when the government suddenly introduced its own bill 
prohibiting sex discrimination'^^ and announced that it would also 
soon introduce a bill prohibiting disability discrimination. Fear of 
the actual enactment of Wu's comprehensive bill motivated the gov- 
ernment's complete reversal of its opposition to anti-discrimination 
legislation. Another impetus for the government's decision was the 
clear demonstration of support for legislation prohibiting sex dis- 
crimination in the Green Paper public consultation exercise'"^ that 
resulted from a Legislative Council motion debate. Disability rights 
activists had also recently gained a great deal of public sympathy as 
a result of several well-publicized incidents of severe discrimination 
against the mentally disabled. In light of this public support for anti- 
discrimination legislation and Wu's pending Equal Opportunities 
Bill, the government realized that its opposition to all discrimination 
legislation was no longer tenable. Although it adamantly opposed 
Wu's broader bill, the government hoped to "hold the line" by offer- 
ing legislation concerning the two groups with the most public sup- 
port — women and the disabled. The government argued that Wu's 
bill was too radical and that a slow "step-by-step" approach was 
more appropriate. 

The government's strategy for deahng with discrimination 
sharply contrasted with Wu's. Wu was committed to comprehensive 
legislation and did not consider leaving out from her bill any area of 
discrimination that might be too controversial. She believed that the 
principle of "equality" created a duty to legislate protection for all 



101. The Bills Committee held a total of 34 meetings, met with 34 delegations, and re- 
ceived numerous written submissions. See DRAFT PROCEEDINGS, HONG KONG 
Legislative Council 317 (July 28, 1995) (address of Dr. Leong Che-hung, Chairman of 
Bills Committee to Study the Equal Opportunities Bill) [hereinafter Leong Address]. 

102. See Sex Discrimination Bill (1994), H.K. GOV'T GAZETTE, Oct. 14, 1994, Legal 
Supp. No. 3, atC1382. 

103. HONG KONG Gov't, Green Paper on Equal Opportunities for Women 
AND Men (1993). The Government offered to issue the Green Paper in order to delay a 
response to the Legislative Council's call for the ratification of CEDAW. 



1997] Gay & Lesbian Rights in Hong Kong 355 

victims of discrimination, not only for those with sufficient pohtical 
power to demand protection. 

The government's Sex Discrimination Bill,'°^ modeled after 
Great Britain's Sex Discrimination Act, was weaker than the corre- 
sponding provisions of Wu's Equal Opportunities Bill because it 
provided for delayed enforcement and contained many exemptions. 
Nevertheless, the Sex Discrimination Bill had one significant advan- 
tage over Wu's bill: it created an Equal Opportunities Commission. 
Wu had previously also legislated for a commission, but the gov- 
ernment rejected her Commission Bill. Although the government's 
proposed commission would not address general human rights con- 
cerns, it would assist in conciliating complaints brought under the 
Sex Discrimination Bill, conduct research into sex discrimination, 
and promote equality. '°^ 

Recognizing the strong appeal of an Equal Opportunities 
Commission, Wu allowed the Legislative Council to vote on the 
government's Sex Discrimination Bill first. She then concentrated 
on amending the government's bill to remove many of the exemp- 
tions and expand the functions of the Equal Opportunities Com- 
mission."'^ In private negotiations, Wu persuaded the government to 
accept some of her amendments. ^°^ The Bills Committee endorsed 
her other amendments, and the Democratic Party, which held the 
majority of the directly elected seats, supported them; however, the 
government vigorously lobbied legislators, particularly the ap- 
pointed members and the conservative representatives of 
"functional constituencies," to vote against the amendments. '°^ Ul- 
timately, the Legislative Council voted in favor of only three of 
Wu's amendments. '°^ 

The defeat of the majority of Wu's contentious amendments 
did not bode well for the remaining provisions of her Equal Oppor- 
tunities Bill, which came up for a vote one month later. Once again. 



104. Sex Discrimination Bill (1994), H.K. GOV'T GAZETTE, Oct. 14, 1994, Legal Supp. 
No. 3, at C1382. 

105. See id. §§ 56-57, 62-65, 76, H.K. GOV'T GAZETTE, Oct. 14, 1994, Legal Supp. No. 
3, at C1456-60, C1468-72, C1486. 

106. See Petersen, supra note 4, at 380-81. 

107. See id. at 381. 

108. See id. at 382-83. 

109. See id. 



356 Loy. L.A. Int'l & Comp. L.J. [Vol 19:337 

the government lobbied hard against the bill. The government sent 
friendly legislators a confidential letter raising numerous 
"questions" concerning the potential impact of her bill. Several 
questions focused on the provisions prohibiting sexuality discrimi- 
nation and clearly appealed to homophobic fears. 

In an effort to counter the government's lobbying, Wu offered 
to make several last minute amendments to the Equal Opportunities 
Bill."° She also divided her bill into three separate pieces of legisla- 
tion. The first bill covered discrimination on the grounds of age, 
family status, and sexuality.' '^ She believed that this bill had the best 
chance of passing because there had been many public complaints of 
discrimination in these areas. The second bill covered race discrimi- 
nation,' '^ and the third bill covered discrimination based on religious 
and political conviction, trade union membership, and spent convic- 

,• 113 

tion. 

Although Wu's bills did not have a great chance of being en- 
acted at this point, they sufficiently worried the government into 
making one further concession. It promised to conduct, early in the 
next legislative term, formal public consultation on the areas of dis- 
crimination that Wu's first restructured bill covered: age, family re- 
sponsibility, and sexuality. 

Ahhough the Democratic Party and the majority of the Bills 
Committee members supported Wu, the Legislative Council ulti- 
mately defeated all three of her bills. Legislators who voted against 
Wu's bills claimed that they endorsed the value of equality, but 
would not vote for a comprehensive bill until Hong Kong had more 
experience with anti-discrimination legislation. The legislature thus 
embraced the government's "step-by-step" approach to discrimina- 
tion. 

The campaign for legislation prohibiting sexuality and other 
discrimination is by no means over. The Legislative Council that de- 
feated Wu's Equal Opportunities Bill contained four "official" 



110. See Leong Address, supra note 101, at 320. 

111. Equal Opportunities (Family Responsibility, Sexuality and Age) Bill, H.K. GOV'T 
Gazette, June 30, 1995, Legal Supp. No. 3, at CI 660. 

112. Equal Opportunities (Race) Bill, H.K. Gov't GAZETTE, June 30, 1995, Legal 
Supp. No. 3, at CI 770. 

113. Equal Opportunities (Religious or Political Conviction, Trade Union Activities 
and Spent Conviction) Bill, H.K. Gov't GAZETTE, June 30, 1995, Legal Supp. No. 3, at 
CI 834. 



1997] Gay & Lesbian Rights in Hong Kong 357 

members, who were guaranteed to vote with the government, and 
eighteen appointed members, the majority of whom were loyal to 
the government and tended to vote conservatively/^'* In accordance 
with the plan to gradually increase democracy in Hong Kong, how- 
ever, all members of the existing Legislative Council were elected in 
September 1995 in either direct elections or from functional con- 
stituencies, which have now been widened to include all working 
people in Hong Kong. Thus, the government has lost its "official" 
votes and the votes of a number of loyal appointed members. 

Although Wu chose not to run for re-election in September 
1995 and decided instead to return to the full-time practice of law, 
she has been appointed to the newly created Equal Opportunities 
Commission and is still active in the campaign for equality rights. 
Moreover, several legislators are pursuing her proposals. On June 
28, 1996, as a result of these efforts, the Equal Opportunities Bill 
concerning family responsibility, sexuality, and age was formally in- 
troduced into the legislature.'^' Presently, the bill awaits assignment 
to a Bills Committee. If the bill is assigned reasonably quickly, it 
should be voted on during this legislative session. Otherwise, the 
bill is likely to die because the PRC has announced that it will dis- 
solve the Legislative Council in July 1997 and replace it with an ap- 
pointed "provisional" legislature. 

Assuming that the bill comes up for a vote, the age and family 
status provisions have a very good chance of enactment. Despite 
strong opposition from the business community and the government 
to legislation prohibiting age discrimination, there is a great deal of 
public support for it.^'^ Many women complain that age discrimina- 
tion is a more serious problem than sex discrimination because even 
traditionally "female" jobs are no longer available to women when 
they reach thirty-five or forty years of age.^'^ Furthermore, the gov- 
ernment now supports the noncontroversial legislation prohibiting 
family status discrimination. Thus, the real battle will focus on the 
question of sexuality discrimination. Unfortunately, the recent pub- 



114. See Petersen, supra note 4, at 362 n.83. 

115. Equal Opportunities (Family Responsibility, Sexuality and Age) Bill, H.K. Gov't 
Gazette, June 28, 1996, Legal Supp. No. 3, at C1792. 

116. See Petersen, supra note 4, at 348 & n.37. 

117. See id. at 348 & n.38. 



358 Loy. L.A. Int'l & Comp. LJ. [Vol. 19:337 

lie consultation exercise on the issue suggests the difficulty of enact- 
ing such legislation. 

V. The Public Consultation Exercise on Sexuality 
Discrimination 

Following the defeat of Wu's Equal Opportunities Bills, many 
organizations pressured the government to fulfill its promise to for- 
mally consult the public on age, family status, and sexuality dis- 
crimination. The government chose to first consult the public on the 
issue of sexuality discrimination. Knowing that gays and lesbians 
had less public sympathy than victims of age or family status dis- 
crimination, the government counted on the results of the consulta- 
tion exercise to provide support for its "step-by-step" approach to 
anti-discrimination legislation. 

The government conducted the consultation exercise in a man- 
ner that seemed designed to soHcit a negative pubhc response. Be- 
fore releasing the formal Consultation Paper, it commissioned a 
telephone survey on public attitudes toward homosexuahty.^^^ Many 
of the questions were leading and potentially prompted respondents 
to express more prejudice than they actually held. For example, the 
survey asked whether respondents would "go swimming with" ho- 
mosexuals or bisexuals.^^^ The average Hong Kong person probably 
had never given any thought to whether the people who swim at her 
favorite beach or pool are gay or straight. For an uninformed re- 
spondent, the question suggested a danger in swimming with homo- 
sexuals. The telephone survey also asked whether respondents 
would patronize a hotel that admitted homosexuals and whether re- 
spondents thought that it was "acceptable" for a homosexual or bi- 
sexual to teach in a primary or secondary school or to occupy an im- 
portant pubhc service position. ^^° 

The government included the results of this survey as an ap- 
pendix to the formal Consultation Paper and regularly referred to it 
in the main body of the paper. For example, the Consultation Paper 
stated that "public acceptance of homosexuality and bisexuality is 



118. A copy of the telephone survey and its results have been published in the gov- 
ernment's consultation paper on sexuality. CONSULTATION PAPER, supra note 12, app. 
III. 

119. See t<i. app. Ill at app. Ill at 4. 

120. See id. app. Ill at app. Ill at 5-6. 



1997] Gay & Lesbian Rights in Hong Kong 359 

on the low side"'^' and that the pubhc had strong "reservations 
about interacting with homosexuals/bisexuals" in situations of sig- 
nificant personal contact, such as subletting a room or hiring a do- 
mestic helper/^^ The government acknowledged, however, that the 
majority of respondents did not object to working or studying with 
gays and lesbians/" More importantly, the Consultation Paper re- 
ported that most people did not think that legislation prohibiting 
sexuality discrimination would be effective.''"* Although the Consul- 
tation Paper was intended to "consult" the pubhc on the question of 
legislation prohibiting sexuality discrimination, it essentially an- 
swered the question in advance by informing the public that the 
"average" Hong Kong person did not accept homosexuals and did 
not favor anti-discrimination legislation. 

The government also used the Consultation Paper to repeat 
several blatantly homophobic statements. The Consultation Paper 
stated, for example, that certain unnamed "[rjepresentatives of 
some educational bodies . . . expressed concern that the promiscuous 
behaviour of homosexuals may have an adverse effect on the overall 
moral standards of society. "'^^ The government did not explain, 
however, why these anonymous speakers were qualified to give such 
an opinion. The government also reported that these 
"representatives" thought that "it would be dangerous to expose 
young people in their formative years to the concept of homosexual- 
ity as there is a chance that young people's sexual orientation will be 
unduly influenced. "'^^ 

The government's use of the phrase "representatives of educa- 
tional bodies" imphes that these persons' views are representative of 
the educational or academic sectors of Hong Kong. In fact, there 
was no special survey of teachers and educators on the subject, but 
only informal meetings between government officials and certain in- 
terested individuals and groups. '^^ By not expressly endorsing these 



121. Id. at 13. 

122. Id. 

123. See id. 

124. See id. aild. 

125. /rf. at8. 

126. Mat 9. 

127. The Consultation Paper lists certain organizations and individuals who met with 
government officials, but the government was careful not to attribute the negative state- 
ments to any particular organization or individual. See id. app. I. 



360 Loy. LA. Int'l & Comp. LJ. [Vol. 19:337 

views, the government cleverly avoided being accused of prejudice. 
By repeating them without dispute or disclosure of the lack of sup- 
porting evidence, however, the government tacitly agreed with these 
views and gave them credibility. Thus, instead of "consulting" the 
public on the problem of sexuality discrimination, the government 
offered justifications for it. 

This approach was far worse than the one taken in the 1993 
Green Paper on sex discrimination. That consultative document 
strongly supported the government's position that sex discrimination 
was not a significant problem and should not be addressed with leg- 
islation.'^^ Unlike the Consultation Paper, however, the government 
clearly stated in the 1993 Green Paper that it supported the principle 
of sexual equality, and it did not repeat or provide credibility to 
sexist statements of the principle's opponents. 

At the conclusion of the consultation period, the government 
announced that the exercise results revealed the general pubhc's 
opposition to legislation prohibiting sexuality discrimination.'^^ Al- 
though the written statements submitted on sexuality discrimination 
were about evenly divided,'^° eighty-five percent of the responses on 
preprinted opinion forms opposed sexuality legislation.'^' Thus, the 
government declined to introduce a bill on the subject. By that 
time, however, the second private member's bill on sexuaHty, age, 
and family status discrimination had already been drafted. The gov- 
ernment will certainly use the results of the consultation exercise to 
argue against the bill's enactment. 

Clearly, the government now views the question of whether to 
adopt anti-discrimination legislation almost entirely as a political 
matter, deserving attention only under strong public pressure. By 
not acknowledging the importance of, and the dire need for, elimi- 
nating sexuality discrimination, the government completely rejected 
Wu's vision of law that would protect all victims of discrimination, 
including minority groups that lack political power. 



128. For a critique of the consultation paper on sex discrimination, see Carole J. Pe- 
tersen, The Green Paper on Equal Opportunities for Women and Men: An Exercise in 
Consultation or Evasion?, 24 H.K. L.J. 8, 11-13 (1994). 

129. See HOME Affairs Branch, Hong Kong Gov't, Legislative Council 
Brief— Equal Opportunities: Family Status and Sexual Orientation (1996). 

130. Eighty-one written submissions indicated support for legislation prohibiting 
sexuality discrimination, and 84 indicated opposition to such legislation. See id. at 2. 

131. See id. at 1. 



1997] Gay & Lesbian Rights in Hong Kong 361 

The negative tone of the government's paper may have had ht- 
tle effect on the results of the consultation exercise. In general, sup- 
porters of legislation prohibiting sexuahty discrimination would be 
capable of identifying the bias reflected in the Consultation Paper. 
However, this official document, which carries a certain amount of 
credibility, will be sitting on Hong Kong library shelves for many 
years. It is unfortunate that the government did not present a more 
principled, or at least a more neutral or objective, position. 

Despite these criticisms, the consultation exercise was a positive 
step for the Hong Kong gay and lesbian rights movement. The Con- 
sultation Paper disseminated some valuable information and served 
as a rallying point for activists seeking to persuade other gays and 
lesbians to become more visible and supportive of the movement. 
Petitions and copies of the Consultation Paper were distributed at 
gay bars and other meeting places where many signatures were ob- 
tained. In addition, the very fact that a formal consultation exercise 
was conducted on the subject should help to "mainstream" the issue 
of gay rights and give it some degree of credibility in the general 
community. A large number of social workers, women's groups, 
and human rights organizations submitted statements criticizing the 
government's survey and Consultation Paper and supporting legis- 
lation prohibiting sexuality discrimination. These submissions dem- 
onstrate that the gay rights movement is not completely isolated. 
Rather, it has allied itself with Hong Kong's broader equality and 
human rights movement. The written submissions also appear to 
have persuaded the Hong Kong government to be more supportive 
of gays and lesbians. In September 1996, the government issued a 
short brochure condemning sexuality discrimination and challenging 
many negative "myths" about homosexuality.'^^ While falling short 
of recommending legislation to prohibit sexuality discrimination, 
this brochure constituted a significant and positive change in gov- 
ernment policy toward the gay rights movement. 

VI. Conclusion: The Future of the Gay Rights Movement 

After 1997 

The legal and political developments associated with 1997 have 
unquestionably improved the status of gays and lesbians in Hong 

132. See HOME AFFAIRS BRANCH, HONG KONG GOV'T, EQUAL OPPORTUNITIES: 

Sexual Orientation (1996). 



362 Loy. L.A. Int'l & Comp. LJ. [Vol. 19:337 

Kong. Decriminalization of homosexual conduct alone was a sig- 
nificant achievement, and the anti-discrimination movement has 
made more progress than anyone could have predicted in 1984. 

The approach of July 1, 1997, however, threatens to halt the 
human rights movement and eradicate the rights achieved thus far. 
The PRC has already announced that it will weaken the Bill of 
Rights and reinstate the original versions of certain laws that were 
amended to conform with it. Fortunately, the PRC has not shown 
any inclination to reinstate laws against homosexual conduct. It is 
focusing more on laws that restrict civil liberties in general. The 
PRC should not have a reason to repeal any pre- 1997 anti- 
discrimination legislation; however, if the pending bill prohibiting 
sexuality discrimination is not enacted in this legislative session, it is 
highly unlikely that such a bill will be enacted for several years after 
1997. 

Members of the equality movement, including gay and lesbian 
activists who tend to ally themselves with the broader human rights 
movement and pro-democracy legislators, may find the Chinese 
government closely monitoring and restricting their activities after 
1997. While these concerns affect all members of the equality 
movement, gay and lesbian activists are more at risk. First, by 
choosing to join the movement, they have drawn attention to their 
sexuality and thereby risk discrimination that they may have 
avoided, which is not the case for most other victims of discrimina- 
tion, such as women, who cannot conceal the basis for the discrimi- 
nation. Moreover, the PRC is known to persecute homosexuals.' 
Thus, it may treat gay and lesbian activists more harshly than other 
members of the anti-discrimination movement. We can only hope 
that the achievements of the past five years will not be undone in 
1997 and that the gay and lesbian rights movement will continue to 
gain strength and acceptance in the Hong Kong community. 



133. see bret hinsch, passions of the cut sleeve: the male homosexual 
Tradition in China 162-66 (1990).