In May 2018, Allen & Overy was commissioned by the Equal Opportunities Commission (EOC) to identify and analyse Hong Kong legislation and certain Government policies in which a person’s relationship status is a factor.1 1.2 A summary of the results of our analysis is contained in this report. EOC Discrimination Law Review 1.3 The EOC’s March 2016 Discrimination Law Review reviewed all existing anti-discrimination laws in Hong Kong and recommended that the Government reform those laws.2 1.4 In particular, the EOC examined the anti-discrimination laws relating to marital status under the Sex Discrimination Ordinance3 and family status under the Family Status Discrimination Ordinance.4 1.5 The EOC’s submissions highlighted that: (a) the protections against discrimination on the grounds of marital status and family status in these Ordinances only protect from discrimination persons who are married (ie opposite-sex spouses) and not couples in other forms of relationships; (b) there are many other areas of law and policy that discriminate on the grounds of marital status; and (c) there is no legal recognition of any other form of relationship other than opposite-sex marriage. 1.6 The EOC also made a number of recommendations relating to protections against discrimination on the basis of marital status and related issues under the Sex Discrimination Ordinance.5 In particular, the EOC recommended that the Government conduct comprehensive research and public consultation on the issues of discrimination and the related issue of possible legal recognition of heterosexual and homosexual cohabitation relationships in Hong Kong, including existing cohabitation relationships and same-sex marriages from overseas. 1.7 The EOC noted that any such consultation should: (a) consult on providing protection from discrimination for persons in cohabitation relationships in relation to the marital status protection under the Sex Discrimination Ordinance6 , including the possible repeal, amendment, or addition of specific exceptions; (b) consider all other potentially discriminatory legislation and policies and whether it is appropriate to reform them; and (c) consider the possible different methods of recognising other forms of relationship, including coverage of heterosexual and homosexual relationships.7 1.8 The EOC also recommended that the Government conduct research and consult on the extension of protections under the Family Status Discrimination Ordinance8 to include persons caring for immediate family members in cohabitation relationships and caring for immediate family members of former spouses or former cohabitees.9 Changing attitudes regarding relationships 1.9 Attitudes in Hong Kong towards forms of relationships other than opposite-sex marriage have changed significantly over the past few decades. 1.10 Several studies have reported an increasing acceptance of cohabitation relationships.
1.11 A 2008 report by the Department of Social Work and Social Administration at the University of Hong Kong (HKU) noted that cohabitation was increasingly accepted at the time of the report compared to previous studies. For example, 51% of respondents to the survey accepted a long‑term cohabitation relationship without the couple being legally married. The report suggested that “people in Hong Kong are ready to accept more diverse definitions of family”.10 1.12 Similarly, a survey carried out by the Family Council in 2017/18 found that fewer people opposed cohabitation over a period of seven years (2011 to 2017) and that young people “were more likely to accept” cohabitation with 49.1% of 15-34 year olds and 47% of 35-54 year olds accepting cohabitation without any intention of getting married.11 1.13 At the same time, the numbers of persons in Hong Kong who have never been married has increased significantly over the last 25 years.12 1.14 In relation to same-sex relationships, a 2018 report by the Centre for Comparative and Public Law at HKU examined changes in public opinion by repeating a previous survey. It concluded that a growing number of people in Hong Kong support the protection of lesbian, gay, bisexual, transgender, and intersex rights, including rights for same-sex couples: (a) the majority (69%) of respondents were in favour of a law providing protection against discrimination on the grounds of sexual orientation (compared to 58% in 2013); (b) nearly four-fifths (78%) of respondents agreed that same-sex couples should have at least some of the rights enjoyed by opposite-sex couples (compared to 73% in 2013); and (c) more than half (50.4%) of respondents agreed with same-sex marriage (compared to 38% in 2013).13 Challenges before the Hong Kong Courts 1.15 There are several recent and ongoing cases before the Hong Kong Courts that have challenged or are challenging the lawfulness of various laws and policies as they apply to relationships other than opposite-sex marriage. 1.16 In July 2018, the Court of Final Appeal found the Director of Immigration had acted unlawfully in deciding that the same-sex civil partner of an eligible sponsor was not entitled to apply for a dependant visa.14 In a joint judgment, the Court rejected the Director’s argument that same-sex couples cannot be compared to opposite-sex spouses for the purposes of the Director’s immigration policy and found that the difference in treatment was not justified. 1.17 In June 2019, the Court of Final Appeal determined that (a) the Secretary for the Civil Service had acted unlawfully in denying medical and dental benefits to the same-sex spouse of a civil servant and (b) the Commissioner of Inland Revenue had acted unlawfully in rejecting that civil servant’s election for joint assessment (for tax purposes) with his husband.15 In a joint judgment, the Court rejected the Secretary’s and Commissioner’s argument that the differential treatment between the civil servant and persons in opposite-sex marriages was rationally connected to the Government’s legitimate aim of protecting the institution of opposite-sex marriage in Hong Kong