First they came for the socialists, and I didn’t speak out because I wasn’t a socialist.
Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.
Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew.
Then they came for me, and there was no one left to speak for me.
The recent rejection of the motion to urge the government to conduct public consultation on sexual orientation discrimination proposed by Cyd Ho (何秀蘭) raises some interesting certain questions about the society we live in and the legislators which represent us.
Most people would agree, for example, that it is unfair to discriminate against a blind person for being blind or a woman for being female; that it is unfair to punish a person for something they did not choose or that is a fundamental part of who they are. Most would also agree that it may be necessary to protect these people from unjust treatment, to ensure that the majority can be protected from the majority against the small element of evil that is always present.
And in our society most would agree and that such protection would logically fall into a legal framework, in other words some kind of anti-discrimination legislation.
Most would also agree that the application of such legislation should be universal. If there is legislation in place to ensure the protection of the blind, then there should similarly be legislation in place for the deaf. Most, when asked to think it through, would agree that protecting one minority and not another makes no sense, that both should be protected, or neither.
So there we have it, three basic principles most would agree makes our society just and fair:
- that some groups may need to be defended because of something they did not choose;
- that a legal framework is a primary mechanism for a government to provide that protection; and
- that the application should be universal.
But if the protection of the disabled minority or women is logical, then why isn’t the protection of the Lesbian, Gay, Bisexual and Transgendered (“LGBT”) community similarly logical?
The simple answer is that it is, and that it should be.
Let us be very clear, being gay is not a choice. Indeed, for many gays and lesbians, life might be a lot simpler without the need to face issues of acceptance, tolerance and discrimination.
It is precisely this logic that probably led Cyd Ho to propose and Regina Ip (葉劉淑儀) to support legislation. It is precisely this logic that led to the motion being passed in the geographical constituency, but regrettably, failed in the functional constituency.
Even if we accept that it is logical to enact anti-discrimination legislation for the LGBT community, as we have for the disabled, for women, and for ethnic minorities, what difference will doing so make? If we live in a society where it is still okay, despite the law, to discriminate against the LGBT community, regardless of how illogical that may be, will putting legislation in place actually make any difference?
The answer is probably and unfortunately no, or at least not as much as one would hope.
Simply by enacting legislation, it is not automatically ensured that people’s rights are guaranteed. While legislation may provide a legal framework in which to pursue those who actively discriminate in the work place, it is probably not going to dissuade people from giving ‘funny looks’ in the street, or from crossing over the road.
Furthermore, will enacting legislation actually prevent active discrimination? To do so the law would need to be enforced, and people would need to be willing to report breaches of the law. However, in a relatively conservative city like Hong Kong, the reality of the situation is that, unfortunately, they are unlikely to.
If there is not the will in the police or the judiciary to enforce the law, then there is more than likely going to be less of a desire to enforce the law in society and in the workplace itself. While the legislation may be in place, without it being enforced it is as good as useless.
The chance of this becoming a reality, that legislation is enacted but never enforced, can be reduced by a careful and watchful eye being placed on the police and judiciary. This is true of all civil liberties and the work of civil liberty groups should ensure that it never occurs.
Similarly, if there is not a will in the general population, be that by a gay or straight person, to report discriminatory activities, then again the legislation is as good as useless. Until there comes a time when it is not only okay for a someone to be gay, but it is okay for their parents, family and friends to know they are gay, then any anti-discriminatory legislation will never be as effective as it could be.
It is this that brings us to the heart of the matter. Until such a time that the majority of society is willing to accept and protect the rights of the LGBT community against a minority who may be vocal in their opposition, then true equality, fairness and enforcement of any anti-discrimination legislation to protect against small evils will not be truly achievable.
It is the recent actions of the likes of Ray Chan (陳志全), Anthony Wong (黃耀明) and Denise Ho (何韻詩) along with the hundreds and thousands of brave and mostly unknown individuals who marched at the 4th annual pride parade. And perhaps most importantly every mother, father, sister, brother, aunt, uncle, friend and even grandmother, who is accepting, understanding and loving which is going to build the framework for our ultimate success.
Perhaps what every one of you reading this should bear in mind is that whether you know it or not, whether you want to accept it or not, and whether you like it or not; you will have met a member of the LGBT community at some point, they are your friends, they are your relatives, they are people you know, like, trust and care about. Just because they are gay does not mean they are any different from you or I. They are just as deserving of a level playing field that is free of discrimination as anybody else.
Everyone has a gay friend; you might just not know it yet…
Francis Chiang (PCLL 2013, Faculty of Law, University of Hong Kong)
Vice President, QSA, 2012-2013