Uphill battle for gay rights
Regina Ip says there is no substance in the argument that marriage as the union of “one man and one woman” is a Chinese tradition given the long history of the concubine system that has allowed men to have more than one wife
On November 21, after a delay of five months, Raymond Chan Chichuen, Hong Kong’s first openly gay legislator, finally managed to move a motion in the Legislative Council to urge the government to “study the formulation of policies for homosexual couples to enter into a union so that they can enjoy equal rights as heterosexual couples”.
The fact that the motion is non-binding did not stop fellow legislator Priscilla Leung Mei-fun from moving an amendment to urge the government to respect “the family values which Chinese societies cherish” and “refrain from shaking the existing marriage institution as a show of respect for the mainstream values in Hong Kong society”.
The debate reopened longstanding divisions in our society between the younger, more liberal, Western-educated generation who support equal rights and the older, more conservative camp opposed to equal rights on religious grounds, or concerns that equal rights would erode the “sacred” institution of marriage as the union of “a man and a woman”.
There is no substance in the argument that marriage as the union of “one man and one woman” is a Chinese tradition. Traditional Chinese society viewed women as the property of men, and allowed men to have more than one wife and concubine.
In deference to this Chinese tradition, the government did not abolish the concubine system until the enactment of the
Marriage Reform Ordinance in 1970. After the ordinance came into force, in October 1971, the status of concubinage and “kim tiu” marriage (a Chinese custom which permitted the sole male heir to have more than one wife to carry on the male lines of his uncles) was abolished. Thereafter, a couple could only validly marry under the Marriage Ordinance, which defines marriage as “the voluntary union for life of a man and a woman to the exclusion of all others”.
The concubine system is so entrenched and widespread in Chinese societies that until recent years, “concubine villages” could be found in Chinese settlements in many parts of Southeast Asia. Even in modern Hong Kong, a few tycoons are known to have famous concubines, and children by their concubines, who enjoy high social status and often grace social pages which celebrate their glamorous lifestyle.
In Hong Kong today, as in other modern societies, fewer couples stay married for life or get married for the purpose of continuing the family line. Many couples are so fond of raising pets instead of children that Chief Executive Carrie Lam Cheng Yuet-ngor had to devote one paragraph in her policy address to enhancing animal welfare. That the Judeo-Christian concept of marriage is evolving or crumbling is because of complex forces shaping modern societies and cannot be blamed on the quest for equal rights for same-sex couples.
Nor is there any scientific evidence supporting allegations by anti-gay groups that homosexual orientation is a sickness or an aberration that needs to be cured. Although no consensus can be reached among scientists about the exact reasons for such orientations, most lesbian, gay or bisexual people “experience little or no sense of choice about their sexual orientation”.
Although the government has been coy about taking even small steps forward in recognising the equal rights of gay couples and transgender people, the Court of Final Appeal, acting as usual as the beacon of liberalism and custodian of human rights, has been far more progressive in recognising the equal rights of the LGBT community.
While making it clear it does not wish to arrogate to itself the power to change laws, which should rest with the legislature after thorough community-wide debates and consultation, the Court of Final Appeal has been making judgments in favour of equal rights.
In the case of W versus the Registrar of Marriages, the court ruled in favour of W’s right to validly marry because she had undergone irreversible sex reassignment surgery. To deny her the right to validly marry would be a violation of her fundamental right to marriage protected under the Basic Law.
In QT versus Director of Immigration, the court ruled in favour of issuing a dependent visa to the same-sex civil partner of SS, a British national working in the city. The court ruled in favour of SS because the denial of a dependent visa to her same-sex partner amounted to indirect discrimination based on sexual orientation.
Raymond Chan’s motion was narrowly passed in the geographical section of the legislature – with support from myself and two other liberal-minded legislators from the pro-establishment camp – but overwhelmingly defeated by legislators in the functional constituencies.
The situation in Hong Kong mirrors that in Taiwan, where the court ruled in favour of legalising same-sex marriage, but the proposition was defeated by a wide margin in a referendum last month.
However, as gay couples continue to seek equal rights through applications for judicial review – for equal civil service benefits in one case and for equal access to public housing in another – our Court of Final Appeal is likely to continue to rule in favour of upholding equal rights, while the conservative bastions of our community will persist in airing their senseless condemnations and the government in hiding behind legislative divisions.
A few tycoons are known to have famous concubines … who enjoy high social status