The Courts, Public Opinion and the Rights of Lesbian, Gay, Bisexual and Transgender Persons: A Hong Kong Perspective

Abstract

In recent years, courts in many jurisdictions have considered the relevance of societal consensus when judicially reviewing policies that affect the rights of sexual orientation and gender identity minorities. This article focuses on three landmark cases concerning transgender marriage and the rights of same-sex couples in Hong Kong, where the apex court has produced relatively progressive rights jurisprudence. A study of these decisions offers comparative insights about the role of public opinion when judges resolve potentially controversial claims involving the rights of lesbian, gay, bisexual and transgender (LGBT) persons. It examines the lower courts’ reliance on, and the Court of Final Appeal’s ultimate rejection of, consensus as a factor when justifying limitations on fundamental rights. At the same time, this analysis suggests that a more nuanced approach — entailing both resistance and responsiveness to public opinion — may be warranted. The Hong Kong jurisprudence sets the stage for developing alternative understandings of consensus which could enhance judicial contributions toward broader discussions in support of LGBT rights protection.