Hong Kong’s sex discrimination ordinance at twenty-five: Achievements, legislative change and continuing challenges
| Author | Amy Barrow |
| Date | 01 June 2022 |
| DOI | 10.1177/13582291221088423 |
| Published date | 01 June 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(2) 107–124
© The Author(s) 2022
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DOI: 10.1177/13582291221088423
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Hong Kong’s sex discrimination
ordinance at twenty-five:
Achievements, legislative
change and continuing
challenges
Amy Barrow
Abstract
This article critiques Hong Kong’s Sex Discrimination Ordinance (SDO) as it turns 25,
considering its achievements and impact, whilst highlighting continuing challenges for its
operation. Although the Equal Opportunities Commission (EOC), the statutory body
responsible for investigating and conciliating discrimination complaints, has promoted the
ordinance and disseminated evidence-based research on sex discrimination, sexual ha-
rassment and pregnancy discrimination, the limited number of litigated cases has inhibited
the educative impact of how discriminatory practices are perpetrated across a range of
settings including in employment and the provision of goods and services. Politically
contentious exemptions persist, and recent law reform does not go far enough in ad-
dressing the limitations of the SDO. Drawing on case law and qualitative research in-
terviews with members of the EOC, scholars and non-governmental organisations, this
paper questions whether Hong Kong’s SDO is coming of age. The article concludes that
despite it 25-year history, there is much works that remains to be done to enhance
societal understandings of gender equality.
Keywords
Sex discrimination, equality, equal opportunities commission, Hong Kong, law reform
Macquarie University, Sydney, Australia
Corresponding author:
Amy Barrow, Macquarie University, Macquarie Law School, Sydney 2109, Australia.
Email: amy.barrow@mq.edu.au
Introduction
It is now 25 years since Hong Kong’sfirst anti-discrimination legislation, the Sex
Discrimination Ordinance 1995 (Cap. 480) (‘SDO’) was adopted. Similar to other ju-
risdictions, which have legislated against sex discrimination for a substantial period of
time (Gaze, 2004), women in Hong Kong have benefitted from legal protections in
employment, educational and other settings. Despite the institutional and legal infra-
structure to support equal opportunities between women and men, a range of measures
show achieving gender-based equality remains out of reach, particularly on remuneration
where there is a clear gender pay gap between men and women of 20% (Census and
Statistics Department 2021;The Women’sFoundation 2021). The majority of complaints
brought under the SDO are related to the field of employment, particularly in relation to
sexual harassment and pregnancy-based discrimination. A number of exemptions persist
under the SDO, which also limit the scope of its application.
Whilst there is a significant body of literature exploring the role, functions and powers
of the Equal Opportunities Commission (‘EOC’), which oversees compliance with the
SDO (Kapai, 2009,2013;Petersen, 2009;Singer, 2000), and the legal protections with
respect to sexual harassment (Samuels, 1995,2000;Petersen 2005), in the past decade
there has been limited scrutiny of the SDO and the associated case law (Kapai, 2013). In
recent years, other policy issues have gained prominence such as the absence of legal
protections against discrimination on the grounds of sexual orientation and gender-
identity (‘SOGI’)(Barrow, 2020;Loper, 2019), which may account for this lack of
scrutiny. Although it is imperative to expose the silences of law, which perpetuate in-
equality, it is also critical to review longstanding statutory legal provisions, their legal
enforcement, achievements and ongoing challenges. As the SDO turns 25, it is timely to
evaluate whether the ordinance is coming of age in strengthening gender equality in Hong
Kong.
This article draws on qualitative research interviews with members of the EOC,
Women’sCom mission, scholars and civil society conducted as part of a study examining
the role of institutional mechanisms for the advancement of women. The article firstly
considers the SDO’s achievements to date. It then examines the approach of the courts in
enforcing the SDO and its wider impact on societal understandings of sex discrimination
and sexual harassment. The article evaluates whether recent legislative changes go far
enough in redressing some of the SDO’s limitations in scope and application; and
identifies continuing challenges for the operation of the ordinance. The article concludes
that whilst the SDO provides an important legal tool to tackle discriminatory treatment in
employment, educational and other settings, not dissimilar to other jurisdictions, its reach
in addressing wider systemic sex-based discrimination is limited. Although this article
focuses exclusively on Hong Kong’s case, it has wider relevance to other jurisdictions,
particularly those with long established legal protections against discrimination. It points
to why continued scrutiny of anti-discrimination legislation and its operation is critical to
prevent the stalling of progression towards substantive conceptions of equality, and in
ensuring that public bodies, employers, educational and service providers do not become
complacent about the promotion and enforcement of equal opportunities.
108 International Journal of Discrimination and the Law 22(2)
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