Grenville Cross pointed out in his article, “Same-sex bill’s fate in hands of elected legislators,” (China Daily, July 22) that the constitutional freedom of marriage guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance is confined to opposite-sex marriage, that equality rights under both instruments do not compel recognition of a foreign same-sex marriage, and that this fact has been reaffirmed by five judges in the Hong Kong Court of Final Appeal (CFA).
I would stress that in this matter we should simply call a spade a spade. We are of course obligated to comply with the Bill of Rights. Accordingly, the CFA concluded that the current practice of the law could have infringed the right to private life and dignity of same-sex couples given (i) the real difficulties they face in the ordinary course of their private lives, and (ii) their exposure to the publicity, stress, uncertainty, and expense of litigation in judicial review proceedings. The question now is how we should proceed from here.
Sex between two consenting adults is an entirely private matter. As long as it does not infringe the law there is no place for public discourse over this private matter between any two persons. However, marriage and sexuality are altogether another matter.
Even in the United States, the subject of LGBTQ is extremely controversial. Elon Musk was reported as having said, in reference to his son Xavier, who changed sex to become female and acquired the name Vivian, that “My son is dead, killed by the woke-mind virus.” The “woke-mind virus” herein refers to the political movement to recognize that one’s sex is not just male or female, and that it can comprise lesbian, gay, bisexual, transgender, queer or questioning, and even additional categories.
Under the “woke” movement, parents are not even supposed to tell their children that they are boys or girls. So children should be “allowed” to find their sexual orientation and exercise their freedom to decide their sexuality. But we should recall the lesson told by psychologist Barry Schwartz, whose 2004 book The Paradox of Choice — Why More Is Less debunked the common assumption of economists that having more choices is always potentially welfare-enhancing. According to these economists, people’s welfare “cannot be reduced by expanding the opportunity set”. Any choice that is welfare-reducing can and will be ignored.
Unfortunately, human beings do not have perfect information. When there are many choices, they can become overwhelmed by the excessive number. They worry that they might make the wrong choice and need to explore the implications of each choice. This is emotionally stressful. We are not helping our children when we tell them: You will choose your sexual inclination and decide your sexuality when you grow up. This is “asking” and not “allowing” children to ponder something that is beyond them. It’s definitely and immensely welfare-reducing. Humankind has gone through millennia without having to face this choice, without much of a problem. Why should we impose this predicament on our kids?
When we change the law, every change must be welfare-enhancing in the sense that it must serve the public interest. We do not want to create unnecessary anxiety in children. If a child is born with two X chromosomes (XX), she is a girl. If a child is born with one X and one Y chromosome (XY), he is a boy. We do not need to ask them about their sexual inclinations. The problem with the “woke virus” is that we must not create problems when there are no problems. We should always call a spade a spade. Having said this, if in time a child finds he/she has a sexual inclination that is different to that implied by his or her chromosomes, we should accommodate their decision to change sex. When a person senses that he/she is bisexual and engages in a colorful sex life, it is a private matter beyond public discourse.
When we change the law, every change must be welfare-enhancing in the sense that it must serve the public interest. We do not want to create unnecessary anxiety in children. If a child is born with two X chromosomes (XX), she is a girl. If a child is born with one X and one Y chromosome (XY), he is a boy. We do not need to ask them about their sexual inclinations
When two people decide to live together, it is entirely their choice. If they see each other as life partners, the CFA proposes that they should have legal protection as life partners. Whether or not they engage in sex is up to them. That is not a legal matter, as long as sex is based on mutual consent.
Marriage in Hong Kong is defined as marriage between a male and a female, and there is no need to change the definition. While historically, some cultures viewed marital sex as a right of the husband, many societies now criminalize marital rape. The absence of consent, regardless of the marital status of the individuals involved, is what defines rape.
Thus, respect and mutual consent are always necessary for any activity that involves both partners in a marriage or a same-sex partnership. To the extent that they have chosen to be life partners, the law should respect their partnership, recognize the partnership, and treat them as equal partners of the same household. If they want to adopt a child, suitability should be assessed based on economic and psychological preparedness. If they have adopted children, they should be entitled to apply for public housing designed for couples with children.
If someone decides to go through sex change surgery that has been approved by law, he or she will have legal access to use a toilet in line with post-operation sex.
The author is an honorary research fellow at Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University, and an adjunct professor at the Academy for Applied Policy Studies and Education Futures, the Education University of Hong Kong.
The views do not necessarily reflect those of China Daily.
