Homosexuals not covered by sex discrimination law
By Sheeta Leung & Christy Chan
Christy Chan Joseph Cho hopes the commision could deal with discrimination based on sexual orientation. To promote equal opportunities and eliminate discrimination, the Equal Opportunities Commission
was set up in 1996. It is an independent statutory body responsible for implementing the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance.Anyone who feels aggrieved by unlawful discriminatory acts or harassment can seek assistance from the Equal Opportunities Commission. It handles complaints according to Hong Kong’s anti-discrimination laws.
Miss Mariana Law Po-chu is the senior equal opportunities officer at the Equal Opportunities Commission.
"We conduct investigations into every complaint lodged with us. We verify whether the cases involve any discriminatory act within the purview of the ordinances," said Miss Law.
After investigation, valid cases proceed to conciliation.
Conciliation aims at providing a common ground for different parties to understand each other’s positions. It helps to eliminate misunderstanding based on incorrect assertions. Conciliation is a voluntary process that either party can stop at any time.
Miss Law said, "Conciliation is the most efficient and preferable way to settle disputes between complainants and respondents. It does not require media exposure and is less formal than a court trial."
In 2001, 262 cases went to conciliation and 176 cases were successfully settled.
If conciliation is not successful, complainants can apply for legal assistance from the Equal Opportunities Commission. Its Legal and Complaints Committee will consider the case and refer it to the District Court if necessary.
According to Miss Law, the Equal Opportunities Commission can work on discrimination cases with complainants only.
"It is often that we notice a discrimination case, but we cannot act on it since there is no complaint," said she.
In 1995, some Richland Garden residents strongly opposed construction of Kowloon Bay Integrated Treatment Centre, which provides rehabilitation service for AIDS patients. They draped banners with slogans such as "AIDS: keep away" over the garden.
The centre opened in June 1999. The residents staged protests calling for the closure of the centre. They abused and hindered the staff of the center.
"At the beginning, there were no patients who spoke out against such abuses. We sent staff to research the long-standing protest. Our officers found the victims and encouraged them to file complaints. We acted on the case after 10 victims were willing to take a stand," said Miss Law.
"In this case, we took an active action, but even our power is bound by the law," said she.
The power of the Equal Opportunities Commission is constrained to suing for discriminatory acts or harassment according to the ordinances. For those complaints that are beyond legal protection, they can only keep records of cases and refer them to other government departments.
For example, there is no regulation on handling discrimination against homosexuality
Timothy Lee Ting Yu, a male homosexual, was rejected by the Hong Kong Red Cross Blood Transfusion Service when he tried to donate blood. He complained to the Equal Opportunities Commission.
Anna Wu Hung Yuk, head of the Equal Opportunities Commission, confirmed that the issue was discriminatory in nature.
However, the commission cannot charge people for discrimination against homosexuals because it is not mentioned in the Sex Discrimination Ordinance.
Joseph Cho Man Kit is a committee member of the Hong Kong Ten Percent Club. He said, "In a broad sense, discrimination against sexual orientation is a kind of sexual discrimination.
"However, without a precedent case, this interpretation is not established in Hong Kong. The Equal Opportunity Commission is down-powered. They are too much bounded by law," said he.
The Equal Opportunities Commission cannot create policies against homosexual discrimination because it is out of their area of ordinance enforcement.
"Discrimination against homosexuality usually appears in an indirect form of neglecting to provide the same rights enjoyed by heterosexuals," said Mr. Cho.
"It is in fact derived form an institutional problem," added he.
"For example, in Hong Kong, only a marriage between heterosexuals can validate an application for welfare services such as public housing.
"A man is in fact discriminated against when he is deprived of the right to receive welfare just because of the sexual status of his companionship," he said.
Homosexual organizations try to educate the public about discrimination against homosexuals, but they lack both money and manpower to do that.
In fact, the aim of the Homosexual Community Joint Meeting is more efficient resource utilization.
Homosexual organizations, like other bodies, can apply for funding from government. However, the amount is limited and barely helps.Mr. Cho said, "the education of the public is a great difficulty to us due to the lack of resources."
"Through joining forces, we try to organize large-scale activities like a homosexual pride day to arouse public awareness and discussion on the homosexuality issue," he added.
Because of the problems of limited resources and the lack of social education, homosexual organizations have few opportunities to educate the youth.
"Of our requests to present talks to secondary school students in 1995, we received only three replies, which rejected our request, and no response from the rest yet.
"We agree that education is important, yet we encounter much hindrance," said Mr. Cho.
"We ceased to contact schools in the past two years."
Although he conceded that the joint efforts of homosexual groups have much improved in the past few years, their situation should not be described as "good" at all.
In fact, there are few people in the homosexual community making any effort on these issues.
"The pressure of social attitudes toward homosexuality prevents homosexuals from speaking for themselves.
"In February, the police launched a drug eradication action in a gay bar.
"They were insulted by the police, but their fear of standing up for themselves in front of the public erased their accusation against the police," said Mr. Cho.
"We believe that if the Equal Opportunities Commission were empowered to fight discrimination against homosexuality, the commission would be more effective.
"For example, the commission could organize talks in secondary schools in their name, which would be more acceptable than our groups.
"They have more resources so they could at least print pamphlets," said he.
Miss Law of the Equal Opportunity Commission said the commission attempts to educate the public about the concept of universal equal opportunities.
She confirmed, however, that there were limitations on the work they can do.
"It is difficult for us to promote anti-discrimination for homosexuals since this is out of our legal ordinance," said Miss Law.
When homosexual groups approach the Equal Opportunities Commission for help, the commission replies that it will transfer the cases to the appropriate government departments.
A common procedure of the commission is to keep a record of such cases and then reveal the figures and make suggestions to the government in the Legco meetings.
"At the moment, that's all we can do within our jurisdiction," Concluded Miss Law.
Mr. Cho hopes that the commission's authority will one day be extended to deal with discrimination against sexual orientation.
However, knowing that the commission puts racial discrimination first, he predicts that it will take at least five years for their concerns to be brought to the Legislative Council.
