Justices say law is unconstitutional because it targets gays only
HONG KONG Hong Kong’s top court rejected a ban Tuesday, July 17, on public gay sodomy, another victory for the Chinese territory’s gay rights movement.
The case stemmed from the prosecution of two men who acknowledged committing sodomy in a car parked on an isolated road at night, the ruling said. Public gay sex was a crime with a maximum penalty of five years in prison.
After the two men challenged the charges, lower courts ruled in their favor, but the government appealed to Hong Kong’s Court of Final Appeal.
A panel of five top judges unanimously dismissed the government’s appeal.
Chief Justice Andrew Li said in the ruling that the law targets homosexuals and “does not criminalize heterosexuals for the same or comparable conduct.”
The case was the first prosecution of the 1991 law.
Earlier, a 20-year-old Hong Kong gay man successfully challenged another law that punished men under 21 who engaged in gay sodomy by up to life imprisonment. The consensual age for heterosexual intercourse in Hong Kong was 16.
A local judge ruled in 2005 that the law infringed on the rights of gay men. The Hong Kong government also unsuccessfully appealed that ruling.
Now that the ban of public gay sodomy and the higher consensual age for gay sex have been struck down in court, such restrictions are unenforceable, but lawmakers still need to repeal them, lawyers say.
Gay activist Cho Man-kit welcomed Tuesday’s ruling. “The government has no way to avoid amending the law now that the court has ruled unanimously against it,” he said.
This article appeared in the Dallas Voice print edition July 13, 2007