Leung V Secretary for Justice : Privacy, Equality and the Hypersexualised Homosexual Stereotype

In this paper the author critiques the recent decision of the Hong Kong Court of First Instance in Leung v Secretary for Justice (2005), in which four provisions regulating particular forms of sexual conduct (including, most famously, the act of "buggery") were struck down as being in violation of the applicant's constitutional equality and privacy rights as a homosexual man. In the author's view, it is unfortunate that the Court opted to employ an equality analysis in declaring one of the four provisions (section 118C of the Crimes Ordinance) to be unconstitutional when the constitutional right to privacy alone would have sufficed. This is so as the nature of the equality analysis that was used in regard to this section (which prohibited buggery for both same-sex and heterosexual couples) served to implicitly endorse the view that homosexual individuals (men in particular) are abnormally preoccupied with sexual relations such that legislative restrictions on buggery represented an intolerable and unconstitutional attack on their identity as gay men. The judicial promotion of such a "hypersexualised" stereotype serves to impede rather than enhance the full and equal participation of homosexual persons in society. Though some might object to the application of privacy rights in such contexts, these objections ought to be discounted on the basis that they tend to be based on an outmoded conception of the right to privacy. It is hoped that these considerations will be taken into account by the Court of Appeal in its forthcoming review of the Leung decision