Hong Kong
Secretary for Justice & ORS v. Chan Wah & ORS, (December 22, 2000)
Court of Final Appeal
Keywords: Discrimination-Gender/Sex
Brief Summary: The dispute centered on election procedures in two villages which prevented non-indigenous people from voting or holding office. The procedures also discriminated against male spouses in that a non-indigenous woman married to an indigenous man could vote, but the converse was not true. The court dismissed the appeals but set forth a list of criteria which electoral proceedings had to meet in order to accord with the Hong Kong Bill of Rights.
CEDAW: Referenced Only. CEDAW is not mentioned explicitly in the text, but is listed under documents referred to.
Ray Chen v. IBM China, (December 15, 2000)
Court
Keywords: Sexual Harassment; Other
Brief Summary: Petitioner, Ray Chen, was employed by IBM on a probationary basis. His employment was terminated by IBM claiming unsatisfactory performance. Chen filed a sexual harassment claim (after notice of his termination was given) with the EOC against a female superior at IBM. The present proceedings concern IBM's failure to pay Chen for over one year. Chen alleges that such failure is "victimization" under Hong Kong's SDO.
CEDAW: The question of law in this case centered on whether Chen, and others similarly situated, could claim protection under domestic law after the technical period of employment had terminated. Despite the fact that petitioner Chen was a man, the Court relied heavily on CEDAW Articles 11 and 13 in interpreting domestic Hong Kong law. Giving CEDAW due accord, the court held, "having regard to the general terms of CEDAW, and it purpose and intent, I am satisfied that its effect on the interpretation of the SDO is such that the SDO should be interpreted in such a way as to protect a woman from discrimination by an employer, in relation to that employment and the consequences of dismissal from the employment, even after the employment has terminated. To interpret the SDO in that way will be to give it a fair large and liberal interpretation and to remedy what otherwise would be a plain injustice."
Equal Opportunities Commission v. Director of Education, (June 22, 2001)
Court of First Instance
Keywords: Discrimination-Gender/Sex
Brief Summary: The case centered around an Ordinance carried out by the Director of Education for the transfer of students from primary to secondary school. Each student received a score based upon subjects taught and internally administered aptitude tests. Students were then placed in three separate bands based on their scores, with students in the top band having a higher chance of receiving the school transfer of his or her choice. Because female students often scored higher than male students, the Department introduced a scaling system whereby boys and girls were ranked separately. The result was that the scores of the boys were boosted and those of the girls reduced. Applicants alleged that the 'skewing' of the results in this manner resulted in unequal treatment and thus constituted gender discrimination.
CEDAW: The Court acknowledged that the Convention on the Elimination of All Forms of Discrimination Against Women ('CEDAW') was extended to Hong Kong in 1996 and "Article 10 of the Convention makes it plain that stereotyped concepts of both men and women are in themselves, if not discriminatory, at least the wellspring from which discrimination flows." Article 10 and Article 2 of CEDAW obliges all State parties "[t]o adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women...[t]o establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination." The Ordinance must, therefore, be read to comply with the terms of CEDAW and as such it cannot rely on "broad assumptions, even if statistically well-founded, that categorize women according to stereotypes. Even if such broad assumptions have some general or statistical validity, they still derogate from the rights of the individual." If girls are treated unequally it is "due solely to the fact that they are girls. But for that fact they would have enjoyed a better choice of secondary school." Such gender classifications are in direct conflict with the directives of CEDAW.