The lack of sexual orientation anti-discrimination legislation in Hong Kong: breach of international and domestic legal obligations

Abstract

Despite Hong Kong's decriminalisation of homosexuality in 1991, inequities in the law vis-à-vis sexual minority individuals have remained. In any case, the decriminalisation cannot obscure the unrelenting discrimination these minority individuals suffer. A Private Member's Bill targeted at sexual orientation anti-discrimination was but put to death in 1996 by an inherently flawed consultation exercise. During deliberations within the Subcommittee to Study Discrimination on the Ground of Sexual Orientation established by the Hong Kong Legislature's Home Affairs Panel in 2000, arguments advanced in the consultation exercise against homosexuality were reiterated. In this article, these arguments will be scrutinised with reference to comparative jurisprudence and analyses of academic and empirical literature. Hong Kong's breach of international as well as domestic laws on account of its lack of sexual orientation anti-discrimination legislation will also be assessed.

Acknowledgments

This article is the product of a much-tried adolescence. Without the support and encouragement of certain individuals this article could not have been written and I am very much indebted to Jon Austin, Principal of Imperial College of Toronto, for his infinite support during and after my studies there; to Robin Corcos, Professor Andrew Byrnes, Sylvia Acevedo, and Robert Morgan for their patience and encouragement which helped me tremendously in dealing with my personal issues, which certainly included my acknowledgment of my own sexuality, during my undergraduate law studies at The University of Hong Kong. I count myself as very fortunate indeed in being able to acquaint and befriend Robin Corcos (again), Sarah Gardiner, Detlev Pusch, and Paul Serfaty, as well as Aisling O'Sullivan and Felizmina Lutucuta, who extend to me their enduring friendships and accept me for who I am.

I am grateful also to Robyn Emerton of The University of Hong Kong for her helpful comments on an earlier draft and, in particular, for referring me to Wayne Morgan and Kristen Walker's inspirational article ‘Tolerance and Homosex: A Policy of Control and Containment’. Last but not least, thanks are due to Sarah Elvins at Taylor & Francis for her patience in the preparations for the publication of this article.

On account of a security breach at The University of Hong Kong, it is hereby stated categorically that this article as it appears herein represents the only authentic version of this article, and that any other work which in any significant way and without proper attribution resembles the same will be considered a product of plagiarism and be pursued accordingly.

Notes

United Kingdom: House of Commons Parliamentary Debates (Hansard). Vol.238 (1993–94/ 21 February 1994), per Tony Blair MP (as he then was), Col.100; quoted in Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights Law (London: Cassell, 1997), p.250.

See Charter of the United Nations, signed at the conclusion of the United Nations Conference on International Organisation held in San Francisco on 26 June 1945; entry into force: 24 October 1945.

For an account of Hitler's purge against sexual minorities, see Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals (New York: H. Holt, 1986).

For a comprehensive account of the persecution sexual minorities have faced since the Second World War, see Nicole LaViolette and Sandra Whitworth, ‘No Safe Haven: Sexuality as a Universal Human Right and Gay and Lesbian Activism in International Politics’, Millennium: Journal of International Studies, Vol.23 (1994), p.563.

Adopted and proclaimed by United Nations General Assembly Resolution 217A(III) of 10 December 1948.

Adopted and opened for signature, ratification and accession by United Nations General Assembly Resolution 2200A(XXI) of 16 December 1966; entry into force: 23 March 1976.

Adopted and opened for signature, ratification and accession by United Nations General Assembly Resolution 2200A(XXI) of 16 December 1966; entry into force: 3 January 1976.

Signed and proclaimed by Presidents of the European Parliament, of the Council of the European Union, and of the European Commission at the European Council meeting in Nice on 7 December 2000. Art.21 of the Charter states that ‘[a]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

E.g., Convention on the Elimination of All Forms of Discrimination Against Women, adopted and opened for signature, ratification and accession by United Nations General Assembly Resolution 34/180 of 18 December 1979; entry into force: 3 September 1981; Declaration on the Elimination of All Forms of Discrimination Against Women, proclaimed by United Nations General Assembly Resolution 2263(XXII) of 7 November 1967.

E.g., International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature and ratification by United Nations General Assembly Resolution 2106(XX) of 21 December 1965; entry into force: 4 January 1969; United Nations Declaration on the Elimination of All Forms of Racial Discrimination, proclaimed by United Nations General Assembly Resolution 1904 (XVIII) of 20 November 1963; Declaration on Race and Racial Prejudice, adopted and proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organization at its 20^th Session on 27 November 1978.

E.g., Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by United Nations General Assembly Resolution 36/55 of 25 November 1981.

Wayne Morgan and Kristen Walker, ‘Tolerance and Homosex: A Policy of Control and Containment’, Melbourne University Law Review, Vol.20 (1995), p.202 at p.206.

Amnesty International officially and explicitly affirmed in 1979 that persons imprisoned for advocating sexual orientation rights be included as prisoners of conscience; such inclusion was expanded in 1991 to those imprisoned solely for their sexual minority identity, whether real or presumed, and for their private practice of consensual same-sex sexual activities; see Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (London: Author, 1997), p.63.

The findings of the survey were published in Apple Daily, a local Chinese newspaper, at A6 (27 November 2000): ‘Homosexuals and Prostitutes Most Discriminated Against’.

Anna Chapman, ‘Sexuality and Workplace Oppression’, Melbourne University Law Review, Vol.20 (1995), p.311 at p.342. The author, for a detailed analysis of how law intervenes in the evolution of cultural perceptions, cites, at fn.155, Wayne Morgan, ‘Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations’, Melbourne University Law Review, Vol.19 (1994), p.740.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 10 January 2001’: LC Paper No.CB(2)790/00–01, para.4.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 10 January 2001’: LC Paper No.CB(2)790/00–01, para.3.

Treaty of Nanking of 1842, in Clive Parry (ed.), The Consolidated Treaty Series, Vol.93, p.465; reproduced in Andrew Byrnes and Johannes Chan (eds.), Public Law and Human Rights: A Hong Kong Sourcebook (Hong Kong: Butterworths, 1993), pp.5–7.

25 Henr. VIII c.6. According to H. Montgomery Hyde, The Other Love: An Historical and Contemporary Survey of Homosexuality in Britain (London: Heinemann, 1970), p.40, the statute was repealed in 1553, by 1 Mar. c.1; but reinstated intact in 1563, by 5 Eliz. I c.17. Mandatory death penalty was replaced by life imprisonment under s.61 of the Offences Against the Person Act 1861 as maximum penalty for the offence of homosexual buggery.

Offences Against the Person Ordinance 1865, s.50.

See Donald West and Richard Green (eds.), Sociolegal Control of Homosexuality: A Multi-Nation Comparison (New York: Plenum Press, 1997), p.198.

Great Britain Committee on Homosexual Offences and Prostitution, Report of the Committee on Homosexual Offences and Prostitution (London: Her Majesty's Stationery Office, 1957), Cmnd.247.

Great Britain Committee on Homosexual Offences and Prostitution, Report of the Committee on Homosexual Offences and Prostitution (London: Her Majesty's Stationery Office, 1957), Cmnd.247. para.61.

Sexual Offences Act 1967 (c.60), s.1(1).

For example, Canada decriminalised homosexuality in 1969 by virtue of s.7 of the Criminal Law Amendment Act 1968–69, Statutes of Canada 1968–69, c.38. The then Prime Minister Pierre Trudeau was quoted in John Yogis, Randall Duplak and J. Royden Trainor, Sexual Orientation and Canadian Law: An Assessment of the Law Affecting Lesbian and Gay Persons (Toronto: Emond Montgomery Publications, 1996), p.2, as declaring that ‘the criminal law has no place in the bedrooms of the nation’.

As maintained by Carole J. Petersen in ‘Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong’, Loyola of Los Angeles International and Comparative Law Review, Vol.19 (1997), p.337 at p.340, the absence in Hong Kong of legal reform on homosexuality, even after the decriminalisation of the same subject in England had taken place, was attributable to the conservative attitudes in Hong Kong and the attendant lack of public discussion and consultation on the matter.

R. v. Hornby and Peaple [1946] 2 All ER 487, per Justice Lynskey, p.488.

For a complete account of the MacLennan Affairs, see Sir T.L. Yang, Report of the Commission of Inquiry into Inspector MacLennan's Case (Hong Kong: Government Printer, 1981).

Law Reform Commission of Hong Kong, Report on Laws Governing Homosexual Conduct (Topic 2) (Hong Kong: Author, 1983).

Law Reform Commission of Hong Kong, Report on Laws Governing Homosexual Conduct (Topic 2) (Hong Kong: Author, 1983). para.12.11.

Petersen (note 26) p.344; see also Hong Kong: Official Report of the Proceedings of the Legislative Council (Hansard), (1991/ 10 July 1991), P.3, per Legislative Councillor Selina Chow Liang Shuk-Yee, p.2739.

See, e.g., Michael S. Duke, The Iron House: A Memoir of the Chinese Democracy Movement and the Tiananmen Massacre (Laton, Utah: Peregrine Smith Books, 1990); Chu-Yuan Cheng, Behind the Tiananmen Massacre: Social, Political, and Economic Ferment in China (Boulder, Colo.: Westview Press, 1990); Peter Li, Steven Mark, and Marjorie H. Li, Culture and Politics in China: An Anatomy of Tiananmen Square (New Brunswick, N.J.: Transaction, 1991); James D. Seymour, The International Reaction to the 1989 Crackdown in China (New York: East Asian Institute, Columbia University, 1990).

Norman J. Miners, The Government and Politics of Hong Kong (5^th ed.) (Hong Kong: Oxford University Press, 1991), p.27.

For events surrounding the transfer of sovereignty in 1997, see, e.g., Chris Patten, East and West: The Last Governor of Hong Kong on Power, Freedom and the Future (London: Pan, 1999); Joel S.K. Poon (ed.), The Making of Special Administrative Region 1982–1997 (Hong Kong: Hong Kong Economic Times, 1997).

It is worth noting that the ICCPR will continue to be in force in Hong Kong by virtue of Art.39 of the Basic Law of the Hong Kong Special Administrative Region even if the Government of the People's Republic of China or of Hong Kong repeals the Hong Kong Bill of Rights Ordinance (Cap.383).

Hong Kong Bill of Rights Ordinance, Art.14.

Hong Kong (Hansard), (1990/ 11 July 1990), P.2, p.1964.

Hong Kong (Hansard), (1990/ 11 July 1990), per Attorney General of Hong Kong Jeremy Mathews, p.1971.

Hong Kong (Hansard) (note 31), p.2738.

Crimes (Amendment) Ordinance 1991.

Crimes Ordinance (Cap.200), s.118C.

Crimes Ordinance (Cap.200), s.118F; see, in particular, sub-s.(2) thereof which states that ‘[a]n act which would otherwise be treated for the purposes of this section as being done in private shall not be so treated if done (a) when more than 2 persons take part or are present, or (b) in a lavatory or bathhouse to which the public have or are permitted to have access, whether on payment or otherwise.’

For a detailed discussion of the various inequities in the criminal law of Hong Kong with respect to sexual minorities, see Phil C. W. Chan, ‘The Gay Age of Consent in Hong Kong’, in Criminal Law Forum, Vol.15:3 (2004), forthcoming.

Hong Kong Government, Homosexual Offences: Should the Law Be Changed? – A Consultation Paper (Hong Kong: Government Printer, 1988).

Hong Kong Government, Homosexual Offences: Should the Law Be Changed? – A Consultation Paper (Hong Kong: Government Printer, 1988). para.43.

Hong Kong Government, Homosexual Offences: Should the Law Be Changed? – A Consultation Paper (Hong Kong: Government Printer, 1988). para.5.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 8 October 2001’: LC Paper No.CB(2)516/01-02, para.6.

[1973] AC 435

[1973] AC 435, per Lord Reid, pp.458–59.

Hong Kong (Hansard) (note 31), per Legislative Councillor Selina Chow Liang Shuk-Yee, p.2741.

Mike Hepworth, Blackmail: Publicity and Secrecy in Everyday Life (London: Routledge, 1975), p.72.

Crimes Ordinance, s.124.

Laud Humphreys, Out of the Closets: The Sociology of Homosexual Liberation (Englewood Cliffs, N.J.: Prentice-Hall, 1972), p.22.

Subcommittee (note 47) para.9.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 29 November 2001’: LC Paper No.CB(2)2723/01-02, para.27.

Subcommittee (note 47) para.15.

See Criminal Justice and Public Order Act 1994 (c.33), s.145, which reduced the gay age of consent from 21 to 18.

See Sexual Offences (Amendment) Act 2000 (c.44), s.1, which further reduced the gay age of consent from 18 to 16. It is of note that this Amendment was prompted by a complaint from a British citizen to the European Commission of Human Rights. For a complete account of the complaint, see Sutherland v. United Kingdom (1997) 24 EHRR CD22.

Sexual Offences Act 1956 (c.69), s.6.

Sexual Offences Act 2003 (c.42), s.140 and Sch.7.

David Blunkett's statement was quoted in Alan Travis and Clare Dyer, ‘Tougher Rape Laws in Sex Crime Revamp’, in The Guardian (20 November 2002), at http://society.guardian.co.uk/crimeandpunishment/story/0,8150,843670,00.html, last accessed at 15 December 2004.

(1981) 4 EHRR 149

(1981) 4 EHRR 149, p.168.

Judd Marmor, ‘Clinical Aspects of Male Homosexuality’, in Judd Marmor (ed.), Homosexual Behavior: A Modern Reappraisal (New York: Basic Books, 1980), pp.267–79 at p.268.

Morgan and Walker (note 12) p.206.

Morgan and Walker (note 12), p.207.

Hong Kong Bill of Rights Ordinance, Art.22.

(1989) 56 DLR (4^th) 1.

(1989) 56 DLR (4^th) 1, per Justice McIntyre, p.18. See also the decision of the European Court of Human Rights in the Belgian Linguistic Case (No.2) (1968) 1 EHRR 252 at p.284 where the Court emphatically enunciated that ‘… the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Art.14 is likewise violated when it is clearly established that there is no reasonable [relationship] of proportionality between the means employed and the aim sought to be realised.’

Hong Kong Bill of Rights Ordinance, s.7. Indeed, it can be argued that the government has persistently discriminated against gays and lesbians by, for example, not extending medical benefits to civil servants' gay or lesbian partners. Moreover, as noted above, the differential gay age of consent already constitutes discrimination by the government itself. Finally, the government's refusal to enact a Sexual Orientation Discrimination Ordinance, despite the prevalence of discrimination and harassment in the community against sexual minorities, amounts, as this analysis seeks to demonstrate, to discrimination by the government itself.

Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart, 1998), p.77.

See, e.g., John Flowerdew, The Final Years of British Hong Kong: The Discourse of Colonial Withdrawal (Basingstoke, UK: Macmillan, 1998).

Equal Opportunities Bill 1994, Legal Supplement No.3 to the Hong Kong Government Gazette, 1 July 1994, C991-C1275.

Equal Opportunities Bill 1994, Legal Supplement No.3 to the Hong Kong Government Gazette, 1 July 1994, C1012.

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

L. C. Chau, ‘Labour and the Labour Market’, in H. C. Y. Ho and L. C. Chau (eds.), The Economic System of Hong Kong (Hong Kong: Asian Research Services, 1988), pp.169–89 at p.169.

Sex Discrimination Bill 1994, Legal Supplement No.3 to the Hong Kong Government Gazette, 14 October 1994, C1381-C1535.

Disability Discrimination Bill 1995, Legal Supplement No.3 to the Hong Kong Government Gazette, 21 April 1995, C965-C1103.

The two Bills were enacted and became the Sex Discrimination Ordinance (Cap.480) and the Disability Discrimination Ordinance (Cap.487) respectively.

Petersen (note 26) p.356.

Sex Discrimination Ordinance, s.63. Nevertheless, the EOC has been at risk of demotion due to its consistent successes in fighting discrimination by the government, notwithstanding the recognition conferred upon the Commission by the United Nations Committee on Economic, Social and Cultural Rights (note 273) para.7: ‘The Committee notes with satisfaction that the Equal Opportunities Commission established in 1996 is effectively carrying out its mandate without interference from the Government of [Hong Kong].’

Equal Opportunities (Family Responsibility, Sexuality and Age) Bill 1995, Legal Supplement No.3 to the Hong Kong Government Gazette, 30 June 1995, C1659-C1767.

Home Affairs Bureau, Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation: A Consultative Paper (Hong Kong: Government Printer, 1996).

Nevertheless, there indeed enacted in 1997 a law that prohibits discrimination on the ground of family status, i.e., Family Status Discrimination Ordinance (Cap.527).

Petersen (note 26) p.358.

Consultative Paper (note 83) para.7.

Petersen (note 26) p.358.

(1998) 156 DLR (4^th) 385

(1998) 156 DLR (4^th), per Justice Iacobucci, p.434.

Consultative Paper (note 83) para.49.

Consultative Paper (note 83), para.54.

Consultative Paper (note 83), Appendix III – Questionnaires, p.3, where it stated: ‘We [i.e., Survey Research Hongkong Ltd.] are conducting an opinion survey on behalf of the Hong Kong Government.’

See Fang-Fu Ruan and Yung-Mei Tsai, ‘Male Homosexuality in Contemporary Mainland China’, in Wayne R. Dynes and Stephen Donaldson (eds.), Asian Homosexuality (New York: Garland, 1992), p.189; in Archives of Sexual Behavior, Vol.17:2 (1988), p.189. See also Bret Hinsch, Passions of the Cut Sleeve: The Male Homosexual Tradition in China (Berkeley, Cal.: University of California Press, 1990), pp.162–71.

Sean M. Burke, ‘Evaluation of the Hong Kong Government's Consultation Paper Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation’ (1996), at http://www.qrd.org/qrd/www/world/asia/hongkong/lgb-consultation-paper-reaction.html, last accessed at 15 December 2004.

Sean M. Burke, ‘Evaluation of the Hong Kong Government's Consultation Paper Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation’ (1996), at http://www.qrd.org/qrd/www/world/asia/hongkong/lgb-consultation-paper-reaction.html, last accessed at 15 December 2004.

Consultative Paper (note 83) paras.12–31.

Evan Wolfson, ‘Civil Rights, Human Rights, Gay Rights: Minorities and the Humanity of the Different’, Harvard Journal of Law & Public Policy, Vol.14 (1991), p.21 at p.39.

Consultative Paper (note 83) para.33.

Consultative Paper (note 83) para.34.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 20 August 2001’: LC Paper No.CB(2)515/01-02, para.19.

Richard A. Posner, Sex and Reason (Cambridge, Massachusetts: Harvard University Press, 1992), p.237.

Consultative Paper (note 83) para.33.

See, e.g., Art.22 of the UDHR which provides that ‘[e]veryone, as a member of society, has the right to social security and is entitled to realization … of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (emphasis added)

Robert Wintemute, ‘Lesbian and Gay Inequality 2000: The Potential of the Human Rights Act 1998 and the Need for an Equality Act 2002’, European Human Rights Law Review, [2000], p.603 at p.608.

Urvashi Vaid, Virtual Equality: The Mainstreaming of Gay & Lesbian Liberation (New York: Anchor, 1995), p.194.

John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).

John Finnis, ‘Law, Morality, and “Sexual Orientation”’, Notre Dame Law Review, Vol.69 (1994), p.1049 at p.1064.

Stephen Macedo, ‘Homosexuality and the Conservative Mind’, Georgetown Law Journal, Vol.84 (1995), p.261 at p.277.

The San Francisco Spokesman (3 November 1932), ‘Prejudice Against Homosexuals’; in Mark Blasius and Shane Phelan (eds.), We Are Everywhere: A Historical Sourcebook of Gay and Lesbian Politics (New York; London: Routledge, 1997), pp.229–30 at p.229.

Wolfson (note 97) p.33.

John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p.226.

T. W. Reinig, ‘Sin, Stigma & Society: A Critique of Morality and Values in Democratic Law and Policy’, Buffalo Law Review, Vol.38 (1990), p.859 at p.878; quoted in Bruce MacDougall, ‘Silence in the Classroom: Limits on Homosexual Expression and Visibility in Education and the Privileging of Homophobic Religious Ideology’, Saskatchewan Law Review, Vol.61 (1998), p.41 at pp.84–85.

Consultative Paper (note 83) para.107.

Subcommittee (note 100) para.7.

[1989] 1 SCR 1296

[1989] 1 SCR 1296 ., per Justice Wilson, p.1328.

Dagenais (note 118), per Chief Justice Lamer, p.877.

[1994] 3 SCR 835

[1994] 3 SCR 835, per Chief Justice Lamer, p.877.

Martin Kantor, Homophobia: Description, Development, and Dynamics of Gay Bashing (Westport, Conn.: Praeger, 1998), p.150.

116 S Ct 1620 (1996)

116 S Ct 1620 (1996), per Justice Kennedy, p.1627.

Wolfson (note 97) p.34.

Consultative Paper (note 83) para.34.

Consultative Paper (note 83) para.34.

Anoop Nayak and Mary Jane Kehily, ‘Playing It Straight: Masculinities, Homophobias and Schooling’, Journal of Gender Studies, Vol.5:2 (1996), p.211 at p.225.

See, below, Legislation versus Education.

Petersen (note 26) p.360.

Petersen (note 26), p.361.

(1995) 124 DLR (4^th) 609

(1995) 124 DLR (4^th), per Justice Iacobucci, p.676.

(1995) 124 DLR (4^th), per Justice L'Heureux-Dubé, p.650.

For an excellent discussion of gay and lesbian relationships, see Letitia Anne Peplau, ‘Lesbian and Gay Relationships’, in Linda D. Garnets and Douglas C. Kimmel (eds.), Psychological Perspectives on Lesbian and Gay Male Experiences (New York: Columbia University Press, 1993), pp.395–419.

Macedo (note 108) p.264.

Department of Health, Press Release (31 August 2004): ‘AIDS Situation in Second Quarter 2004’, at http://www.info.gov.hk/aids/english/press/2004/040831.htm, last accessed at 15 December 2004.

Subcommittee (note 47) para.50.

Crimes Ordinance, s.118D.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 19 April 2001’: LC Paper No.CB(2)2188/00-01, para.21.

Carol Warren, ‘Homosexuality and Stigma’, in Marmor (note 64) pp.123–41 at p.124.

Consultative Paper (note 83) para.35.

Consultative Paper (note 83) para.36.

Subcommittee (note 100).

Finnis (note 107) p.1068.

Finnis (note 107) p.1067.

Finnis (note 107) p.1055.

Andrew Koppelman, ‘Is Marriage Inherently Heterosexual?’, American Journal of Jurisprudence, Vol.42 (1997), p.51 at p.95.

Finnis (note 107) p.1055.

Carlos A. Ball, ‘Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism’, Georgetown Law Journal, Vol.85 (1997), p.1871 at pp.1912–13.

Koppelman (note 146) p.62.

2003 Ont. C.A. LEXIS 271 (10 June 2003)

(1866) 1 L.R. P. & D. 130

(1866) 1 L.R. P. & D. p.133.

Halpern (note 150) para.71.

Halpern (note 150) para.94.

William N. Eskridge, Jr., ‘A History of Same-Sex Marriage’, Virginia Law Review, Vol.79 (1993), p.1419 at p.1434.

Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p.206.

(1993) 100 DLR (4^th) 658

(1993) 100 DLR (4^th), per Justice L'Heureux-Dubé, p.712.

Macedo (note 108) p.286.

Laud Humphreys and Brian Miller, ‘Identities in the Emerging Gay Culture’, in Marmor (note 64) pp.142–56 at p.153.

Consultative Paper (note 83) para.103.

(1999) Application No.33290/96

(1999) Application No.33290/96, para.36.

William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (New York: The Free Press, 1996), pp.112–13. The author cites, at fn.66, as supporting authority Susan Golombok et al., ‘Children in Lesbian and Single Parent Households: Psychosexual and Psychiatric Appraisal’, Journal of Child Psychology and Psychiatry, Vol.24 (1983), p.551; David J. Kleber et al., ‘The Impact of Parental Homosexuality in Child Custody Cases: A Review of the Literature’, Bulletin of the American Academy of Psychology and Law, Vol.14 (1986), p.81; Charlotte J. Patterson, ‘Children of Lesbians and Single-Parent Households: Psychosexual and Psychiatric Appraisals’, Child Development, Vol.63 (1992), p.1025.

Subcommittee (note 100) para.40.

For a detailed discussion of whether homosexuality is a choice, see Phil C. W. Chan, ‘No, It Is Not Just a Phase: An Adolescent's Right to Sexual Minority Identity under the United Nations Convention on the Rights of the Child’, in The International Journal of Human Rights, Vol.10:2 (2006), forthcoming.

Consultative Paper (note 83) para.38.

Consultative Paper (note 83), para.39.

Consultative Paper (note 83), para.39.

Consultative Paper (note 83), para.39.

Consultative Paper (note 83), para.108.

Subcommittee (note 100) para.37, per Leung Sheung-Lam of Sterling Light Alliance Church; Choi Chi-Sum of The Society for Truth and Light; and Daniel Ho of Kau Yan Church.

Egan (note 130), per Justice Cory, p.675.

J. Michael Bailey and Richard C. Pillard, ‘A Genetic Study of Male Sexual Orientation’, Archives of General Psychiatry, Vol.48 (1991), p.1089.

J. Michael Bailey and Richard C. Pillard, ‘A Genetic Study of Male Sexual Orientation’, Archives of General Psychiatry, Vol.48 (1991), p.1092.

Posner (note 101) pp.296–97.

Egan (note 130), per Justice La Forest, p.619.

Jonathan Katz, Gay American History: Lesbians and Gay Men in the U.S.A.: A Documentary (New York: Harper & Row, 1985), p.132.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-I (Washington, DC: Author, 1952), p.38; quoted in Ronald Bayer, Homosexuality and American Psychiatry: The Politics of Diagnosis (Princeton, N.J.: Princeton University Press, 1987), p.40. Both of these sources are quoted in Koppelman (note 146) p.78 at fn.113.

The circularity is pointed out by Koppelman who states, ibid. at fn.114, that ‘… the psychiatric conception of homosexuality as a disease has never escaped this question-begging character. Normative arguments against homosexuality that are parasitic on the disease view are therefore circular, since the disease view is itself parasitic on unstated normative premises.’

Ralph Slovenko, ‘Homosexuality and the Law: From Condemnation to Celebration’, in Marmor (note 64) pp.194–218 at p.195.

See American Psychiatric Association, ‘Position Statement on Homosexuality and Civil Rights’, American Journal of Psychiatry, Vol.131:4 (1973), p.497.

Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 5 July 2001’: LC Paper No.CB(2)2189/00-01, para.20.

American Psychiatric Association, ‘Position Statement on Psychiatric Treatment and Sexual Orientation’, adopted by the Board of Trustees of the American Psychiatric Association on 11 December 1998, at http://www.psych.org/psych_pract/copptherapyaddendum83100.cfm, last accessed at 15 December 2004. See also American Psychological Association, ‘Resolution on Appropriate Therapeutic Responses to Sexual Orientation’, adopted by the Council of Representatives of the American Psychological Association on 14 August 1997, at http://www.apa.org/pi/sexual.html, last accessed at 15 December 2004.

Subcommittee (note 183) para.25.

See Richard R. Troiden, ‘The Formation of Homosexual Identities’, Journal of Homosexuality, Vol.17:1/2 (1989), p.43; excerpted in Garnets & Kimmel (note 133) pp.191–217 at p.196.

24 EHRR CD22

24 EHRR CD31.

Posner (note 101) p.302.

Nayak and Kehily (note 126) p.224.

Debbie Epstein and Richard Johnson, ‘On the Straight and Narrow: The Heterosexual Presumption, Homophobias and Schools’, in Debbie Epstein (ed.), Challenging Lesbian and Gay Inequalities in Education (Buckingham: Open University Press, 1994), pp.197–230 at p.223.

Carol Lee, The Ostrich Position: Sex Schooling, Mystification (London: Unwin, 1986), p.34; quoted in Nayak and Kehily (note 126) p.223.

Nayak and Kehily, ibid., p.220.

See P. Gibson, ‘Gay Male and Lesbian Youth Suicide’, in M. Feinleib (ed.), Prevention and Intervention in Youth Suicide (Department of Health and Human Services, Report to the Secretary's Task Force on Youth Suicide, Vol.3 (Washington, DC: Author, 1989), pp.110–42; cited in Curtis D. Proctor and Victor K. Groze, ‘Risk Factors for Suicide among Gay, Lesbian, and Bisexual Youths’, Social Work, Vol.39:5 (1994), p.504 at p.505. Nevertheless, according to the latter authors, at p.504, Gibson's findings were renounced by Congress of the United States as contrary to the Department's ‘calling’. The authors opine, ibid., that ‘[s]uch a refusal to acknowledge the difficulties of gay, lesbian, and bisexual youths leaves very few sanctioned avenues for investigation of suicide risk factors.’

Dr. John Tse is also author of Youth Suicide: Facts, Prevention and Crisis Management (text in Chinese) (Hong Kong: The Chinese University Press, 2000).

Dated 6 June 2002.

All relevant statistics are provided by Against Child Abuse, a non-governmental organisation in Hong Kong, in its Annual Report (2001/02), p.35, at http://www.aca.org.hk/ap2002/p32.pdf, last accessed at 15 June 2003.

In 2002, Pope John Paul II summoned the 13 Cardinals of the United States to the Holy See to tackle the rampant sexual abuse within the Church in the United States; see Agencies in Vatican City, ‘Cardinals Summoned by Pope over Sex Abuse’, in South China Morning Post (17 April 2002), p.13. Unfortunately, the Vatican meetings resulted only in an ambiguous remedy which would fail to prevent paedophile priests from priesthood and its attendant practice and thus proximity to children and adolescents, and they failed outright to establish a zero-tolerance policy that would necessarily contribute to wiping out all sexual abuse within the Church; see Reuters in Vatican City, ‘Paedophile Priests Remedy a Sham, Say Victims’, in South China Morning Post (26 April 2002), p.10. Following enormous dissatisfaction with and criticism of the absence of a zero-tolerance policy, Cardinal Anthony Bevilacqua of Philadelphia, representing all United States Cardinals, now maintained that a zero-tolerance policy would be presented at the national bishops' meeting in Dallas, Texas, in June 2002, and that the Holy See would then establish it as a binding national policy upon adoption; see The New York Times in Philadelphia, ‘All Paedophiles Will be Sacked, US Cardinals Now Say’, in South China Morning Post (28 April 2002), p.7. In this respect, Hong Kong was in no better position. The South China Morning Post revealed in its 2 May 2002 issue that ‘[t]hree Catholic priests in Hong Kong have been found guilty at internal church hearings of sexually abusing children in their care … but none of the cases [were] handed to police.’ See Kevin Sinclair, ‘HK Priests in Child Sex Scandal’, in South China Morning Post (2 May 2002), p.1. In the same issue, Sinclair commented that ‘[t]he Hong Kong diocese's action in dealing with the matter as if it was only of internal concern is most disquieting.’ According to Sinclair, Cardinal John Baptist Wu, then Head of the Catholic Church in Hong Kong, failed to offer any explanations; see Kevin Sinclair, ‘Doubts Fuelled by a Wall of Silence’, p.3. The police launched an investigation immediately; see Kevin Sinclair and Ella Lee, ‘Police Probe Child Sex Abuse by HK Priests’, in South China Morning Post (3 May 2002), p.1. On 6 June 2002, the Hong Kong Catholic Diocese decided to set up a 20-member body to look into complaints relating to sexual abuse that had been occurring within the Church; see Ella Lee and Antoine So, ‘Church Group to Probe Sex Abuse’, in South China Morning Post (6 June 2002), p.3. According to this news report, a 42-year-old former Catholic priest was arrested on 4 May 2002 for alleged indecent assault against a then 15-year-old boy. Subsequently, this former priest was convicted in January 2003 of two charges of indecent assault; one charge of gross indecency; and one charge of attempted buggery and sentenced in February 2003 for a jail term of four and a half years, which conviction was hailed in the community; see Magdalen Chow, ‘Ex-Priest Found Guilty of Molesting Altar Boy’, in South China Morning Post (28 January 2003), p.5; and Magdalen Chow, ‘Ex-Priest Handed 4.5 Years' Jail for Sex Abuse of Boy’, in South China Morning Post (18 February 2003), p.5. Unfortunately, Bishop Joseph Zen, Head of the Catholic Church, maintained, defiantly, that Cardinal Wu, since deceased, had handled this former priest's matter properly and his non-disclosure to the police thereof for more than a decade was not inappropriate; see Stella Lee, ‘Cardinal Wu Dealt With Child Sex Case Properly, Says Zen’, in South China Morning Post (22 February 2003), p.4.

Posner (note 101) pp.298–99.

Consultative Paper (note 83) para.39.

John C. Gonsiorek, ‘Mental Health Issues of Gay and Lesbian Adolescents’, Journal of Adolescent Health Care, Vol.9 (1988), p.114; excerpted in Garnets and Kimmel (note 133) pp.469–85 at p.482.

Bruce Voeller, ‘Society and the Gay Movement’, in Marmor (note 64) pp.232–52 at pp.241–42.

Consultative Paper (note 83) para.86.

Consultative Paper (note 83) para.122.

Consultative Paper (note 83) para.122.

Civil Service Bureau, ‘The Current Policy Relating to Medical and Dental Benefits to Civil Servants’: Paper No.CB(2)2374/00-01(01), para.5.

Egan (note 130), per Justice L'Heureux-Dubé, p.645.

Amy J. Zuckerman and George F. Simons, Sexual Orientation in the Workplace: Gay Men, Lesbians, Bisexuals & Heterosexuals Working Together (Thousand Oaks, Cal.: Sage, 1996), p.41.

Indeed, as Rhoda E. Howard-Hassmann in ‘Gay Rights and the Right to a Family: Conflicts Between Liberal and Illiberal Belief Systems’, Human Rights Quarterly, Vol.23 (2001), p.73 at p.76, maintains, ‘[i]t is easier to reject gay rights when gays are the mysterious “other”, apart from the society that you live and work in, than when they are your own child, friend, or coworker. Psychological studies confirm that those who are exposed to gays and lesbians are more likely to favor gay rights (or less likely to be “homophobic”) than those who are not so exposed.’ The author cites in support of her proposition W. Schneider and I. A. Lewis, ‘The Straight Story on Homosexuality and Gay Rights’, Public Opinion, Vol.7 (1994), p.17; L. M. Lance, ‘The Effects of Interaction with Gay Persons on Attitudes toward Homosexuality’, Human Relations, Vol.40 (1987), p.329.

Herbert Smith, ‘Equal Opportunities Policy’, at http://www.hsrecruitment.net, last accessed at 15 December 2004.

See Quinton Chan, ‘Some Are Less Equal than Others’, in South China Morning Post (5 February 2001), p.15.

The EOC is indeed under a legal duty to cause all complaints brought before it to be settled by conciliation where possible. It is only when conciliation fails that the EOC is permitted to resort to litigation; see Sex Discrimination Ordinance, ss.64(1)(d) and 84(3)(b); Disability Discrimination Ordinance, ss.62(1)(d) and 80(3)(b); and Family Status Discrimination Ordinance, ss.44(1)(c) and 62(3)(b).

The EOC is empowered to function and launch formal investigations under ss.64 and 70 of the Sex Discrimination Ordinance; under ss.62 and 66 of the Disability Discrimination Ordinance; and under ss.44 and 48 of the Family Status Discrimination Ordinance. It follows that, without a Sexual Orientation Discrimination Ordinance and the corresponding provisions therein, the EOC is not capable of handling complaints that are based on sexual orientation grounds.

Home Affairs Bureau, ‘Administration's Response to the Comments Made by Certain Groups and Members at the Meeting of the Panel on Home Affairs on 12 December 2000’: Paper No.CB(2)981/00-01(01), para.17.

Home Affairs Bureau, ‘Administration's Response to the Comments Made by Certain Groups and Members at the Meeting of the Panel on Home Affairs on 12 December 2000’: Paper No.CB(2)981/00-01(01), para.17.

Consultative Paper (note 83) para.122.

Egan (note 130), per Justice L'Heureux-Dubé, p.633.

See Cliff Buddle, ‘Firm Grounds Lacking for Race Law Delay’, in South China Morning Post (9 August 2002), Legal Focus, p.16.

Consultative Paper (note 83) para.51.

Consultative Paper (note 83) paras.59–60.

319 US 624 (1943)

The First Amendment reads that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’

Barnette (note 221), per Justice Jackson, pp.637–38.

Macedo (note 108) p.262.

United Nations Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination, CERD/C/59/Misc.16/Rev.3 (9 August 2001), para.17.

Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965), p.17.

See Plant (note 3).

Hong Kong (Hansard) (note 31), per Legislative Councillor Leung Wai-Tung, p.2747.

Macedo (note 108) p.299.

Vriend (note 88), per Justice Iacobucci, p.448.

Education and Manpower Bureau, ‘Implementation of Concepts and Values of Non-Discrimination on the Ground of Sexual Orientation in Schools’: Paper No.CB(2)509/01-02(01), para.2.

Subcommittee (note 55) para.18.

Subcommittee (note 47) para.32.

The University of Hong Kong (note 235) para.8.

The University of Hong Kong, ‘Policy Relating to Sexual Harassment’, at http://www.hku.hk/staffing/abouthku/sexual.html, last accessed at 15 December 2004.

The University of Hong Kong, ‘Policy Relating to Sexual Harassment’, at http://www.hku.hk/staffing/abouthku/sexual.html, last accessed at 15 December 2004, para.1.

The University of Hong Kong, ‘Policy Relating to Sexual Harassment’, at http://www.hku.hk/staffing/abouthku/sexual.html, last accessed at 15 December 2004, para.1, Procedures for the Consideration of Complaints of Sexual Harassment – B. Harassment on the Ground of Sexual Orientation.

The University of Hong Kong, ‘Policy Relating to Sexual Harassment’, at http://www.hku.hk/staffing/abouthku/sexual.html, last accessed at 15 December 2004, para.1, Procedures for the Consideration of Complaints of Sexual Harassment, para.9.

Dated 18 April 2002.

Consultative Paper (note 83).

Home Affairs Bureau, ‘Submission to the Home Affairs Panel of the Legislative Council's Paper on Discrimination on the Ground of Sexual Orientation’: Paper No.CB(2)207/00-01(01), para.16.

Worse still, Kwok in a personal remark asserted that the harassed person would not be so harassed if they did not act in such a way as might indicate that they might be gay or if they did not disclose their sexual orientation to others. Such blatant shift of blame from the offender to the victim was plainly ludicrous. It is every student's (and individual's) right, if he or she so desires, to disclose in the process of identity formation his or her sexual orientation without meanwhile being subjected to discrimination and harassment. One's sexual orientation is intimate to one's life and accordingly only injustice would ensue if depriving sexual minorities of their right to share their lives with others which heterosexuals take for granted. It was furthermore disappointing for Kwok, of such high standing as Equal Opportunity Officer of HKU who had previously served for more than two years as Senior Equal Opportunity Officer of the EOC, to make this remark apt to reinforce such stereotypes as ‘gay/effeminate’ and ‘lesbian/butch’. As Gonsiorek (note 201) p.473 observes, ‘[d]uring adolescence, individuals are more polarized in their sex roles than at any other time in their lives. Males experience intense peer pressure to be “tough” and “macho”, and females to be passive and compliant. Although social sex roles are not intrinsically related to sexual orientation, the distinction is poorly understood by most adolescents, as well as by most adults.’ (emphasis added)

See Harriet Samuels, ‘Sexual Harassment in Employment: Asian Values and the Law in Hong Kong’, Hong Kong Law Journal, Vol.30 (2000), p.432 at pp.433–35.

Leon Salzman, ‘Latent Homosexuality’, in Marmor (note 64) pp.312–24 at p.312.

Sex Discrimination Ordinance, s.2(5)(a).

It is sometimes argued that even the concept of sexual orientation itself is ambiguous. Regardless, as according to Ritu Khullar, ‘Vriend: Remedial Issues for Unremedied Discrimination’, National Journal of Constitutional Law, Vol.7 (1997), p.232 at pp.237–38, which was quoted in Vriend (note 88), per Justice Iacobucci, p.443: ‘If there is any ambiguity in the term “sexual orientation”, it is no greater than that encompassed by terms such as “race”, “ethnic origin” or “religion”, all of which are undefined prohibited grounds of discrimination in the Charter which have not posed any undue difficulty for the courts or legislatures to understand and apply.’ Justice Iacobucci in Vriend, ibid., emphatically endorsed Khullar's view.

Subcommittee (note 100) para.25.

Peter M. Cicchino, Bruce R. Deming, and Katherine M. Nicholson, ‘Sex, Lies and Civil Rights: A Critical History of the Massachusetts Gay Civil Rights Bill’, in Didi Herman and Carl Stychin (eds.), Legal Inversions: Lesbians, Gay Men, and the Politics of Law (Philadelphia: Temple University Press, 1995), pp.141–61 at p.157.

Home Affairs Bureau, Equal Opportunities: Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation (Hong Kong: Government Printer, 1998).

Home Affairs Bureau, Equal Opportunities: Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation (Hong Kong: Government Printer, 1998), Part A, Section 1, para.1.1.

Home Affairs Bureau, Equal Opportunities: Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation (Hong Kong: Government Printer, 1998), Part B, Section 3.

Home Affairs Bureau, Equal Opportunities: Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation (Hong Kong: Government Printer, 1998), Part C.

Home Affairs Bureau, Equal Opportunities: Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation (Hong Kong: Government Printer, 1998), Part D.

Home Affairs Bureau, Equal Opportunities: Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation (Hong Kong: Government Printer, 1998), Part C, Section 8.

Zuckerman and Simons (note 208) p.43.

Wintemute (note 104) p.625.

Vriend (note 88), per Justice Cory, pp.427–28.

Home Affairs Bureau, Sexual Orientation: Equal Opportunities (pamphlet) (Hong Kong: Government Printer, 1998).

Code of Practice (note 249) Part A, Section 1, para.1.1.

Adopted by the General Conference of the ILO at its 48^th Session on 9 July 1964; entry into force: 15 July 1966.

Basic Law of the Hong Kong Special Administrative Region, Art.39.

1(3) IHRR 97 (1994)

Art.26 of the ICCPR provides that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status.’

Toonen (note 262); see, in particular, Individual Opinion by Mr Bertil Wennergren, pp.106–7.

ICCPR, Art.2(1).

ICCPR, Art.2(2).

ICCPR, Art.2(3)(a).

Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), pp.72–91 at pp.77–78.

United Nations Human Rights Committee, Concluding Observations of the Human Rights Committee on the Hong Kong Special Administrative Region: Hong Kong (China), CCPR/C/79/Add.117 (4 November 1999), para.15.

United Nations Human Rights Committee, Concluding Observations of the Human Rights Committee on the Hong Kong Special Administrative Region: Hong Kong (China), CCPR/C/79/Add.117 (4 November 1999), para.15.

Art.2(2) of the ICESCR provides that ‘[t]he States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

Yvonne Klerk, ‘Working Paper on Article 2(2) and Article 3 of the International Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly, Vol.9 (1987), p.250 at p.260.

United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights (Hong Kong): China, E/C.12/1/Add.58 (21 May 2001), para.15(c).

United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights (Hong Kong): China, E/C.12/1/Add.58 (21 May 2001), para.31.

United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights (Hong Kong): China, E/C.12/1/Add.58 (21 May 2001), para.27.

ILO Employment Policy Convention, Art.1(1).

ILO Employment Policy Convention, Art. 2(c).

Basic Law of the Hong Kong Special Administrative Region, Art.25.

Dianne Pothier, ‘The Sounds of Silence: Charter Application When the Legislature Declines to Speak’, Constitutional Forum, Vol.7 (1996), p.113 at p.115.

Vriend (note 88), per Justice Cory, p.414.

Vriend (note 88), per Justice Cory, per Justice Iacobucci, p.436.

Vriend (note 88), per Justice Cory, per Justice Iacobucci, p.436.

539 US ___ (2003) (26 June 2003), at www.supremecourtus.gov/opinions/02pdf/02-102.pdf, last accessed at 15 December 2004.

Section 1 of the Fourteenth Amendment reads that ‘[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’

Lawrence (note 283), per Justice Kennedy, p.18.

Lawrence (note 283), per Justice Kennedy, p.14.

478 US 186 (1986)

349 US 294 (1955)

The Economist (29 March 2003), ‘The End is Nigh’, pp.35–36.

[1992] 1 HKCLR 127

[1992] 1 HKCLR 127, per Vice-President Silke, p.141.

[1992] 1 HKCLR 127, per Vice-President Silke, p.141.

[1992] 1 HKCLR 127, per Vice-President Silke, p.141.

The Hong Kong Government in the Consultative Paper relied on certain local and overseas studies which suggested that the ratio of sexual minorities in the community was between 6 and 10 per cent of the total population which would amount to between 420,000 and 700,000 individuals in Hong Kong; see Consultative Paper (note 83) para.12.

See Apple Daily (note 14).

Wintemute (note 104) p.624.

Subcommittee (note 16) para.3.

(1986) 26 DLR (4^th) 200

(1986) 26 DLR (4^th), per Chief Justice Dickson, p.225.

Carole J. Petersen, ‘Implementing Equality: An Analysis of Two Recent Decisions under Hong Kong's Anti-Discrimination Laws’, Hong Kong Law Journal, Vol.29 (1999), p.178 at p.180.

Art.1 of the UDHR provides that ‘[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

Kevin Reuther, ‘Queer Rights Are Human Rights: Thoughts from the Back of a Cab’, Harvard Human Rights Journal, Vol.8 (1995), p.265 at p.268.