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The government must take the lead on same-sex marriage and LGBT rights

2018/9/13 — 17:27

林鄭月娥

林鄭月娥

編按:終審法院今年 7 月就入境處拒向英籍女同志 QT 發受養人簽證一案頒下判詞,裁定入境處終極敗訴,特首林鄭月娥稱案件只是一個入境政策的問題,並強調目前社會尚欠「廣泛共識」就性小眾平權展開立法工作。政治學者杜方思(Jean-François Dupré)撰文反駁指,凝聚共識、摒除偏見,正是政府不可逃避的責任。

This summer has witnessed advances and setbacks on LGBT rights in Hong Kong.

In July, a ruling on the “QT case” by the Court of Final Appeal upheld that the government’s refusal to issue spousal visas to same-sex partners was indeed unlawfully discriminatory. Chief Executive Carrie Lam, however, was quick to spoil the party, dismissing the QT ruling as strictly “a question of immigration policy”, and stressing the need for a “broad consensus” in order for the government to act on LGBT rights, despite the fact that a substantial proportion of Hong Kong’s population supports anti-discrimination measures.

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These events took place against the backdrop of continuing heterosexism in Hong Kong politics and society. For instance, educational books favourable to LGBT interests were recently found to have disappeared from the shelves of public libraries, while the Court of Appeal overturned a ruling that would have made same-sex civil servant couples eligible for spousal benefits.

It is quite ironic that the government should use alleged lack of consensus as an excuse to brush off issues of LGBT rights, while remaining determined to push for measures that are clearly unpopular (if not downright provocative) and regressive, like the National Anthem Law.

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The view that a broad societal or political consensus needs to be reached in order for the government to promote LGBT rights is misleading. In fact, contrary to state nationalism or other forms of chauvinism, the protection and expansion of minority rights is precisely one of those issues where the government should take the lead in building a consensus, rather than finding excuses for inaction.

In principle, there is little difference between recognizing sexual diversity and recognizing racial or ethnocultural diversity. Most of us appreciate that ethnocultural recognition and anti-racial-discrimination laws can force racists into accepting — or at least tolerating — the people they would otherwise discriminate against on the basis of their racial or ethnocultural origins. These laws and policies work by educating people and by imposing sanctions on offenders, with the assumption that, with the government setting an example and upholding the moral high ground, prejudice will dissipate over time.

The same goes for the recognition of sexual diversity.

A common strategy among opponents of same-sex marriage has been to argue for a traditional definition of marriage: “Marriage is (and has always been) between a man and a woman, end of the debate.” But what is the inherent value of tradition here? How is campaigning in favour of a gender-based traditional definition of marriage in a heterosexist society different from advocating a race-based traditional definition of marriage in a segregationist society? Throughout history, tradition has enshrined all sorts of questionable, sometimes objectionable, practices. Resorting to tradition is merely circular thinking, as perpetuating a wrong doesn’t make a right. As a justification for maintaining a discriminatory practice, tradition has no value in and of itself.

Similarly, some — including elected legislators — oppose same-sex marriage on the purported ground of protecting “family values”. This is quite contradictory, as what many same-sex couples are asking, in a sense, is precisely to be recognized as families! Why would anyone supporting family values reject the expansion of family definitions and deny same-sex couples access to family status, if not out of prejudice?  

Some opponents of same-sex marriage — once again including elected legislators — have gone so far as to employ a discourse of rights, arguing that LGBT recognition infringes on their own rights and freedoms of religion, beliefs and speech. According to this perspective, legislating in favour of LGBT rights would basically infringe on people’s freedom of speech by preventing them from engaging in hate speech against LGBT people. By using such deceitful logic, anti-LGBT advocates are turning the very ideas of freedoms and rights on their head.

Recognition is anchored in a positive belief in dignity, diversity and mutual respect. At the same time, many of the various rights and freedoms we enjoy are typically negative as their primary purpose is to prevent discrimination on the basis of race, sexual orientation, religion, beliefs, etc. Contrary to what some religious fundamentalists may claim, allowing same-sex marriage does not take anything away from religious people, even if they may not like the idea of same-sex marriage. On the other hand, denying same-sex couples access to the institution of marriage does take something very concrete away from these couples, not the least their dignity. 

Essentially, same-sex marriage and the recognition of LGBT rights, identities and interests more generally, is about granting equal rights and dignity to sexual minorities. And this requires our governments to reform our institutions — including marriage — so as to render them more inclusive and accessible. There is simply no justification for maintaining a gender-based definition of marriage. 

Heterosexism, sexism, genderism, racism, and many of the other -isms, all share the same toxic logic of groundless exclusion. There shouldn’t be a need for a societal consensus to lead the government on these issues. Quite on the contrary. It is the government’s duty to lead and forge these consensuses.

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