Same-Sex Rights – Nearly 120 years after Hong Kong made sodomy punishable with a possible life sentence, a recent court ruling marks another step towards the complete decriminalization of same-sex relationships.
In 2007 Hong Kong abandoned its British sodomy law. On the other hand, for over a decade, several remaining provisions of his Crime Ordinance have continued to detect homosexual relationships between men, either through disproportionate sentencing or by specifically criminalizing sexual acts between men. In 2017, Yeung Chu Wing filed a lawsuit to challenge the constitutionality of seven discriminatory provisions.
On May 30, the Hong Kong Supreme Court dropped the four offenses that specifically applied to sex between men and removed discriminatory aspects from three other provisions. With this decision, the court consolidated the decriminalization process by removing the penal code’s remaining discriminatory provisions.
These efforts are part of the global trend towards abolishing the colonial era’s discriminatory laws that press same-sex relations. Way back 2018, courts in India and Trinidad and Tobago both ruled that criminalizing same-sex relationships is unconstitutional. This year, Botswana decriminalized same-sex relationships, but Kenya was a setback, where the court enforced similar discriminatory laws.
Hong Kong’s secretary of justice did not challenge the four deleted provisions. But she asked the Supreme Court to keep the remaining three conditions by making them non-discriminatory.
The four unchallenged provisions criminalized “inducing others” to engage in anal intercourse, “gross indecency” with or by a boy under 16, “gross indecency” between men otherwise in private, as well as “procuring gross indecency” between men. All four were declared unconstitutional by the Supreme Court. The court was aware that sexual offenses against minors fall under other provisions, which are non-sexist and non-discriminatory.
The court in detail why the four provisions were unconstitutional. Judge Thomas Au eloquently based his analysis on the fundamental principle of equality, invoking Article 25 of the Hong Kong Basic Law and Article 22 of the Hong Kong Charter of Rights. He considered that these four provisions punished sexual relations between men, while there were no comparable crimes between women or men and women. The court ruled that the gender-targeted difference in treatment between men was discriminatory and contrary to equal protection.
The other three provisions were challenged because they imposed differential sentences or age-of-consent that disproportionately punishes sexual relations between men.
For example, one of the provisions sanctioned “gross indecency in the mentally handicapped” only between men. In dealing with this provision, the court held that all the words “a man” are interpreted as “a person” for this provision. Using these corrective interpretation techniques, the court either made the three conditions gender-neutral or assimilated the age of consent, making them conform to the constitution.
Hong Kong’s Court of Final Appeal repealed the city’s sodomy law in the 2007 case Secretary for Justice v. Yau Yuk Lung, reasoning that the law only criminalized sex between men and was unconstitutional. As well as the same principle in applying the doctrine of non-discrimination, this judgment extends equal protection through the demolition or judicial interpretation of the Crime Ordinance’s remaining discriminatory provisions. They were thus completing the decriminalization process. in Hong Kong.
The criminalization of same-sex relationships contradicts the fundamental principles of equality and non-discrimination in international law. The repeal of laws that sanction consensual relationships between persons of the same sex from legal codes is an essential step toward eliminating discrimination based on gender identity and sexual orientation.
Recent decriminalization measures demonstrate the critical role that the judiciary can play in protecting the rights of minorities, especially in communities with repressive and unjust laws. Although they reside in their different jurisdictions with different social and cultural norms, a growing number of courts agree that everyone should be afforded human dignity, autonomy, and equality.
