In 1994, Anna Wu, an appointed legislator, introduced an Equal Opportunities Bill (EOB) which sought to prohibit discrimination on a wide range of grounds, including race, sex, disability, age and sexuality. As a compromise, the government agreed to introduce narrower legislation, which became the Sex Discrimination Ordinance and the Disability Discrimination Ordinance. It then successfully lobbied against the other grounds in the EOB, arguing that the community needed time to adjust to this new area of law before broadening its coverage (Petersen 2006: 252). The Hong Kong government subsequently issued a consultation paper, Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation, in 1996. Lesbian and gay NGOs, such as the Ten Per Cent Club and Horizons formed a working group on the bill. At the end of the consultation 10,000 letters of support went to the government, but 80,000 were also received in opposition, the result of campaigns by religious groups.
An Equal Opportunities Commission was established in 1996. Today it administers four ordinances, dealing with sex, disability, family status and race. There are forums for consultation and discussion between civil society and government officials. The forums are on ethnic minorities, human rights, public affairs and sexual minorities.
When Stephen Fisher was appointed Deputy Secretary for Home Affairs in 2004, he took some positive steps. He met with members of the LGBT community and advocacy groups. He then set up the Gender Identity and Sexual Orientation Unit (GISOU) in the Constitutional and Mainland Affairs Bureau to handle discrimination complaints filed by LGBT people. Although the unit does not have the power to adjudicate on any complaints, it assesses instances of discrimination. In cases against public bodies, it facilitates dialogue and possible policy change with the relevant department or bureau.
Fisher also set up a Sexual Minorities Forum with members from LGBT, human rights and civil society organisations. The Forum invited government officials to appear and explain their policies. Subjects discussed in the Forum included immigration issues for same-sex couples, sex-reassignment surgery arrangements, access to social services by the LGBT community as well as sex education and human rights education. Most controversially, in 2005 Fisher initiated a survey on public attitudes towards homosexuality, in an attempt to gauge public acceptance of homosexuality and of any measures to eliminate discrimination, including legislation (Shaw 2007: 29—30).
LGBT organisations opposed the government’s decision to include the New Creation Association as a member of the Sexual Minorities Forum, for it advocates counselling and therapy to convert homosexuals to heterosexuals. In protest, local LGBT organisations first boycotted the Forum, and then, in March, 2013, officially withdrew. The Forum, at that point, had not held a meeting for two years. In June, 2013, the government ended the Sexual Minorities Forum, establishing a new Advisory Group on Eliminating Discrimination against Sexual Minorities (Potts 2013b; Collett 2013a, 2013b, 2013c).
The issue of a possible law against discrimination has continued. A very active campaign was mounted by conservative Christian groups in 2005 against any ordinance on sexual orientation discrimination. According to the South China Morning Post, the Hong Kong government received more than 50,000 letters after a campaign by the Society of Truth and Light. Other conservative Christian groups, the Sex Culture Society and the Hong Kong Alliance for Family, placed full-page advertisements in papers opposing the law (Chi Heng Foundation 2005). The chair of the Equal Opportunities Commission in 2012 called for a consultation process on an anti-discrimination law. Such a consultation was rejected by the chief minister in 2012, and again in 2013 (Collett 2013a, 2013c). On 9 November 2012, the Hong Kong Legislative Council voted on a motion to hold a public consultation on a possible anti-discrimination law dealing with sexual orientation. A majority of the geographical constituency members of the Legislative Council voted in favour of the motion (21 to 8), but members representing functional constituencies voted against (17 to 10). To pass, the motion required a majority of both groups (Tan 2012a, 2012b).
The United Nations Human Rights Committee (in 1999) and the United Nations Committee on Economic, Social and Cultural Rights (in 2001 and 2005) have chided Hong Kong for failing to enact a sexual orientation anti-discrimination law and their criticisms received considerable press coverage in Hong Kong (Lau and Stotzer 2011). A coalition of LGBT organisations submitted a report to the UN Human Rights Committee in 2013, as part of the Committee’s periodic review of Hong Kong’s compliance with the International Covenant on Civil and Political Rights. Among other issues, the report dealt with the lack of a non-discrimination ordinance, and the fact that the Code of Practice of the SAR government’s Gender Identity and Sexual Orientation Unit, aimed at private sector employment, was purely voluntary (Leach 2013b).
Japan
The Japanese High Court in 1997 held that the gay organisation OCCUR had an equal right to use a youth hostel operated by the Board of Education of the Tokyo Metropolitan
Government. The hostel, Fuchu seinen no ie, was regularly used by various groups for conferences and meetings. Tokyo had a policy of sex segregated accommodation, with heterosexuals in mind. The decision proceeded on two grounds. Articles 21 and 26 of the Constitution guaranteed freedom of assembly and association and the right to an equal education. Based on these provisions the gay group had the right to use the hostel. Additionally, a local autonomy act limited the government’s ability to deny access to public facilities (Japan Times 1997; ICJ 2011: 102).
OCCUR had been established in 1986 and began the court case in 1991, taking the action very seriously as a way to publicise sexual orientation issues (Hall n. d.). It is the earliest known example in Asia of the strategic use of the courts by a gay group. Extensive evidence was presented with the goal of educating the judges and the public. OCCUR did not expect to win, recognising the conservative character of the Japanese judicial system. The openly gay elected president of the San Francisco School Board, Tom Ammiano, came to Tokyo to testify in support of OCCUR (OCCUR 1993). He testified about programs to combat the high dropout rates of gay and lesbian students due to harassment, and a study indicating higher suicide rates for gay youth (Yoshida 1993). Dr. Yamamoto Naohide, with many years of research and practical experience in the field of sex education, testified for OCCUR, filing a written brief and testifying in person at the request of the court. Plaintiff Yanagihashi Akitoshi, himself a law graduate, recounted OCCUR’s successful use of other youth conference centres. The District Court ruled in favour of OCCUR in 1994. The city appealed the decision. The High Court ruled in OCCUR’s favour in 1997. OCCUR had nearly 100 supporters attending the various sessions to show the courts ‘the diversity of the gay community and to combat any stereotyped negative image’ (Gay Times 1996; Summerhawk et al. 1998: 206-11).
In 1999 Japan enacted the Basic Law for a Gender-Equal Society, which required local governments to develop laws and policies promoting equality. The national law did not mention sexual orientation, but a small number of local governments added it (Taniguchi 2006). The reference to ‘sexual orientation’ in the law of the small city of Miyakonojo ended with the amalgamation of the city with three other neighbouring towns, a loss that triggered some international protests. In 2013, the Yodogawa ward in Osaka District passed a resolution stating it respected the human rights of LGBT people, and would conduct staff training of personnel on LGBT issues (GayStarNews 2013).
The national government has included ‘people in a difficult situation because of sexual orientation or living with gender identity disorder’ in the latest Basic Plan for Gender Equality, and ‘sexual minorities’ are mentioned in the latest Suicide Prevention Measures. Funds are also provided for a 14-hour LGBT hotline (Yamashita 2012). There have been a few court decisions on discrimination on the grounds of sexual orientation and gender identity.