A recent Hong Kong Court of Final Appeal selection has held that denying a equal-intercourse couple get entry to to spousal advantages and joint evaluation of tax turned into oblique discrimination.
The Court of Final Appeal (‘CFA’), Hong Kong’s maximum courtroom, has ruled that it’s far unjustified indirect discrimination to refuse a male authorities employee access to spousal advantages for his husband and deny the couple the potential to choose for joint assessment of salaries tax.
This selection became issued a yr after the identical court docket gave its landmark ruling within the case of QT v Director of Immigration, which allowed identical-sex companions to apply for dependant visas.
What came about?
Leung Chun Kwong (Angus) began operating as an immigration officer with the Hong Kong government in 2003. He married his companion, Scott Adams, in 2014 in New Zealand, where identical-intercourse marriage is prison.
After getting married, Angus showed to his agency that his marital reputation had changed and that his husband, Scott, need to therefore be entitled to revel in the clinical and dental benefits which might be prolonged to a civil servant’s partner. He had formerly notified them of his aim to get married. The government informed him (each earlier than and after his wedding) that his identical-intercourse marriage with Scott became no longer a marriage inside the meaning of Hong Kong regulation, and therefore he become no longer entitled to spousal blessings.
Angus additionally attempted to record his profits tax return on line and go with to have his tax together assessed. However, he became unable to go into Scott’s name as they both had the equal prefix, ‘Mr’. Angus raised the problem with the Inland Revenue Department, and that they advised Angus that although the Inland Revenue definition of ‘marriage’ does not expressly exclude same-sex couples, it does make reference to a wedding among a ‘guy’ and a ‘spouse’, where husband approach a married man, and spouse manner a married girl. Consequently, parties in a identical-sex marriage can not be husband and spouse.
Angus challenged both the Benefits Decision and Tax Decision and after a series of appeals and pass-appeals, the case came earlier than the CFA. Angus claimed that the government had breached each the Basic Law and the Hong Kong Bill of Rights (which binds the government and public authorities and affords that all Hong Kong residents are same earlier than the regulation and that the regulation prohibits discrimination on any ground).
Outcome of the case
The government general that denying spousal blessings to a equal-sex married couple and now not letting them choose joint tax assessment constitutes indirect discrimination towards same-sex couples on the floor in their sexual orientation, as they can not get married lawfully underneath Hong Kong marriage laws, however simplest if this is not justified. In other words, the government’s argument rested on them being able to set up that the one of a kind remedy of equal-sex couples turned into justifiable in these conditions. They generic that in the event that they were unable to try this, it might constitute illegal oblique discrimination.
The CFA considered the subsequent questions in determining whether or not such differential remedy became justified.
Did the exceptional treatment of same-sex couples pursue a valid goal?
Before thinking about the legitimate aim, the Court rejected the competition that the:
‘prevailing perspectives of the community on marriage 婚姻介紹所 are applicable to identifying a legitimate intention and justification of differential remedy.’
The valid intention recommend with the aid of the government changed into, in essence, shielding (or now not undermining) the concept and/or organization of marriage, and the unique repute of marriage, defined because the voluntary union for life of 1 guy and one girl to the exclusion of all others (‘Legitimate Aim’).
Was the treatment rationally related to the Legitimate Aim?
The authorities’s case faced awesome issue over the query of ways giving equal-intercourse couples the right to spousal blessings and permission to select joint assessment of salaries tax for would affect the institution of marriage.
The government’s role become that the Benefits Decision and the Tax Decision were rationally related to protective the Legitimate Aim. They relied upon the sooner judgment in the Court of Appeal that it’d undermine the distinctiveness of the status of marriage in society if identical-intercourse couples ought to proportion in blessings or privileges that have lengthy been completely associated with or loved by way of married couples.