The University of Hong Kong

Department of Law

Academic Year of 2019-2020

Examiner’s Report

[This report will be posted onto intranet immediately after the release of exam results]

Course code: LLAW_6063 Course title: Equality and Non-discrimination

Report prepared by: Kelley Loper Date: June 2020

The short essays and final assignments for the course were generally of good quality (with
a few excellent essays/answers). I was impressed at the extent to which most of you had
absorbed and reflected on the lectures, readings, multi-media materials, and our Zoom
discussions. Most of you displayed a good understanding of the different concepts of
equality and related debates and were able to analyse international and domestic legal
responses across several topics accordingly. It was clear from the work you produced that
most of you met the expected course learning outcomes and addressed the themes/issues
we considered throughout the semester. You were also able to read, understand and
critically engage with the academic literature in your article “reviews”.

The best answers to the first question of the final assignment presented clear, persuasive
arguments that were well-supported by an analysis of the examples chosen. The quality
of the analysis was the most important factor I took into consideration when grading the
papers. The best answers generally engaged with the reading materials, including
academic literature and the UN treaty body interpretive materials (e.g. general comments,
views/jurisprudence, concluding comments on state reports, etc.). In other words, the
analysis went beyond the text of the legal provisions themselves and considered the nature
of the rights and obligations as well as any academic critiques of judicial decisions, etc.
The best answers were also generally well-written using clear, direct language with few,
if any, typos.

The weakest answers to question 1 merely described the law without explaining in a
convincing manner how the examples reflected particular notions of equality. It was not
enough to mention certain concepts (e.g. formal vs substantive) briefly and superficially
without explaining the implications in greater detail. Some papers contained many typos
or grammatical mistakes that interfered with the clarity of expression and, therefore,
undermined successful communication of the ideas and arguments.

The best answers to the second question identified and applied the relevant international
legal standards to the situation in the chosen news item and also referred to appropriate
interpretive materials issued by the UN human rights treaty body (or bodies). Simply
mentioning the provision without providing some interpretive analysis was not sufficient
to achieve a high grade.

For your reference, I have pasted below two examples of the best short essays, two
examples of best answers to question 1 of the final assignment, and one example of a best
answer to question 2 of the final assignment (without names or student numbers and with
the permission of the students concerned). These are not “perfect” (and contain some
mistakes) ☺ but they are still excellent overall.

I very much enjoyed teaching all of you this semester, despite the unusual circumstances.
Although I wish I had a chance to get to know you in person, the outcome of the
assessments demonstrated that you probably (hopefully) learned as much as you would
have in the classroom. I do hope you enjoyed the course.

Please feel free to contact me with any questions.

All the best,

Kelley

Short essay example 1:

Substantive equality: Fredman’s multi-dimensional model versus MacKinnon’s

hierarchy

1. Introduction
In “Substantive equality revisited”, Fredman explores her four-dimensional model of
substantive equality, which consists of the (i) redistributive dimension, (ii) recognition
dimension, (iii) participative dimension, and (iv) transformative dimension. It is argued
that this framework helps evaluate whether actions and practices embody the right to
equality. MacKinnon, on the other hand, identifies hierarchy as a single formula to the
concept of substantive inequality in “Substantive equality revisited: A reply to Sandra
Fredman”. She believes a hierarchical analysis is less abstract and will lead to outcomes
that better reflect equality, particularly in the contexts of court decisions and legislation.
 In this essay, I will look at the arguments on both sides, with reference to the two
articles mentioned above as well as Fredman’s reply to MacKinnon’s criticisms of her
model in “Substantive equality revisited: A rejoinder to Catharine MacKinnon”. In the
first part of the essay, I will briefly explain Fredman’s four-dimension concept and on
MacKinnon’s hierarchy principle. In the second part, I will evaluate the merits of their
approach and show that the Fredman’s multi-dimensional approach is more preferable.
Towards the end, I will explore the possibility of reconciling their views.

2. Fredman’s substantive equality: a multi-dimensional model

Fredman’s multi-dimensional model aims to encompass different aspects of substantive
equality. First, the redistributive dimension aims to redress disadvantage and recognises
the asymmetric nature of substantive equality. According to this view, disadvantage stems
not from a particular status but from the detrimental consequences that are attached to that
status. Second, the recognition dimension seeks to redress stigma, stereotyping,
humiliation and violence. It also promotes respect for equal dignity. Third, the
participative dimension encourages social inclusion and political voice through
participation in both community life and political processes. Fourth, the transformative
dimension advocates structural changes and accommodation of differences. Fredman
emphasises that the framework is to be seen as a whole and that the dimensions
complement each other.

3. MacKinnon’s substantive inequality: hierarchy

MacKinnon argues that substantive inequality should be properly understood as hierarchy,
which she characterises as dichotomies, such as “above and below, more and less, higher
and lower, dominant and subordinate, superior and anterior” (“A reply” 740). A more
elaborate formulation could be found in her other article “Substantive Equality: A
Perspective”, where she defines inequality as "always a social relation of rank ordering,
typically on a group or categorical basis […] that precedes the legal one” (12), and a
“misanthropic notion […]that some are intrinsically more worthy than others, hence justly
belong elevated over them, because of the group of which they are (or are perceived to be)
a member” (12).

4. Hierarchy versus multi-dimensional model

In this section, I will explain why the multi-dimensional model is more preferable than
the hierarchy principle by first highlighting the inadequacies of hierarchy. Then I will
illustrate the comprehensiveness of the multi-dimensional model in achieving substantive
equality. At the end of the section I will address criticisms of the model and see if they
illuminate ways in which Fredman’s approach can be improved.

There are mainly two reasons why I find hierarchy on its own inadequate. First, I
agree with Fredman that dichotomies in hierarchy cannot fully address the multi-faceted
ways in which inequality occurs. One example could be seen in the complexity of power
relationships. By showing that white women may be subordinate relative to men but
dominant relative to black women, Fredman argues that hierarchy “on its own cannot
capture the interaction between these different directions of power” (“A Rejoinder” 747).

Dichotomies are also misleading. Hierarchy may consider problem solved simply by
an improvement of status, but a lack of attention towards the possible effects such as
stereotype and stigma may in turn aggravate the inequality. For instance, the protectionist
choice of diction in Art 11 2(d) of CEDAW in giving “special protection” to pregnant
women in harmful work may have attended to their needs and redress the disadvantage,
but the idea that women need protection also further reinforces patriarchy and perpetuates
inequality. This highlights the limitation of the hierarchy/disadvantage approach alone in
achieving substantial equality.

Another issue that I take with MacKinnon’s hierarchy its lack of methodology in
application. There is no clear explanation as to how it is to be applied, and it is even more
confusing when neither the dichotomies such as “more and less” nor the misanthropic
notion of demeaned intrinsic worth offer a tangible standard to determine inequality. We
know that “not every distinction is discriminatory”, and distinctions between high-income
and low-income groups for taxation reasons can be justified (“Substantive equality
revisited” 717). The question is, at what point in “high and low” or “more or less” is it
illegitimate to make such distinctions? Whose regard of intrinsic worth is to be taken into
account, and what would be considered as a manifestation of demeaning the intrinsic
worth of others? Given the many uncertainties, I do not consider MacKinnon’s hierarchy
alone can delineate substantive equality.

Fredman’s multi-dimensional model, on the other hand, presents a reading of

substantive equality that does not exhibit limitations similar to those of MacKinnon’s
hierarchy. First, its redistributive dimension recognises the complex dynamics of power
relationships and explores the various “constraints which power structures impose on
individuals” (“Substantive equality revised” 729). Unconfined, the first dimension hints
at a holistic approach and attempts to address the various powers at play, such as economic
opportunities, political liberties, social powers etc. This would better help us understand
what a black woman is facing – not only subjugation as a woman but exclusion owing to
her race and lessened opportunities.

The second dimension of recognition also prevents the undesirable outcome of

redressing disadvantage but accentuating the effects of stereotype, which in turn reinforces
the cycle of disadvantage. For instance, it is aware that the provision of statutory parental
leave to mothers and not fathers may redress the disadvantage women suffer at work but
at the same time reinforces the gendered stereotype of women being a child-taker and
furthers inequality of women. Coupled with the two other dimensions of participation
transformation, the multi-dimensional approach provides a definitive solution that solves
the root of the problem – instead of directly elevating women’s position to achieve equality
as the hierarchy approach does, it seeks to understand the stereotypes that confine women
to such a position, provides opportunities and platforms for women to change such
perceptions and advocates affirmative actions that tackles structural prejudices.

Most importantly, Fredman has a formulation of substantive equality that is simpler

and much more straightforward than MacKinnon’s hierarchy. Each of the four dimensions
can be clearly defined as opposed to the convoluted ideas of dichotomies and intrinsic
worth, and the multi-faceted nature seeks to perfect the understanding of substantial
equality by allowing the dimensions to complement each other’s limitations. It is also easy
to apply as “an analytic framework to evaluate laws, policies, practices, or social structures”
(“A Rejoinder” 750). Given these reasons, I would prefer Fredman’s multi-dimensional
approach to MacKinnon’s hierarchy.

Fredman’s multi-dimensional approach is not uncontested. MacKinnon, in her

advocation of the disadvantage approach, argues that Fredman’s use of socio-economic
disparity to analyse disadvantage shows a “bafflingly narrow concept of disadvantage”.
She argues that the prefix of “socio” entails a “pattern of stigma and prejudice, structural
barriers and exclusion” (“A reply” 743).

I disagree with MacKinnon because I don’t think Fredman has confined his analysis
of disadvantage to the socio-economic aspect. She acknowledges that although
disadvantage is “primarily aimed’ at socio-economic disadvantage, it goes beyond than
“maldistribution of resources” (“Substantive equality revisited” 729). She also addresses
the need of the redistributive dimension to identify the power structures that places
constraints on individuals because of their status, and quotes Young in support of centring
the focus on domination and structures. Here, the concept is wide enough to encompass
both economic disadvantages and power relations, but carefully delineated to show that
the recognition is not to be assimilated into the first dimension, in order to present the
conflicts between the two concepts. Apart from parental leaves and CEDAW’s provision
on special protection, conditional cash transfers to mothers is an example given by
Fredman to show the dilemma between redressing the disadvantage of these women in
poverty and reinforcing the gendered stereotype of women being a care-taker.

Another criticism that MacKinnon makes of Fredman’s model is that the four
dimensions are too abstract. For instance, the redistributive dimension does not identify
what a disadvantage is and the participative dimension does not explain whose voice is to
be paid attention to and who is excluded. MacKinnon further argues that asserting that the
dimensions complement each other does not solve these problems.

Fredman, in response, emphasises the multi-dimensional nature of the model, and

contends that interaction between the four dimensions allow them to counteract the
weaknesses of each other. She then shows that the participative dimension has to be read
together with the first and second dimensions in order to identify whose voice is to be
heard. This would then point to people who “are [not] already in a position of relative
power”. In Fredman’s point of view, each element of the multi-dimensional approach
cannot be picked off separately and evaluated on its own merits.

It would seem that MacKinnon’s criticism should have been directed at the multi-
dimensional approach itself and not at individual dimensions. However, I agree partially
with MacKinnon that the complementary nature of the dimensions may not fully help us
understand the issues she raised. Describing the targets of the participative dimension as
people not in a position of relative power does not really help with effective identification,
and explaining the contexts in which disadvantage manifests does not specify the nature
of disadvantage.

Hence, I propose that MacKinnon’s hierarchy test is to be implemented here in order

to help us formulate the first and third dimensions in a more concrete way. This brings me
to the last section of my discussion on whether the two theories can reconcile.

5. Reconciliation
If MacKinnon doesn’t insist that hierarchy is the singular principle of substantial equality,
I argue that the two concepts of substantial equality may be reconciled. A hierarchy test
may be implemented where it is too abstract to identify a disadvantage or a person whose
voice is to be encouraged. The dimensions themselves are not resistant to such an idea. In
explaining what disadvantage could be, Fredman looked at power structures and
domination. In identifying a voice, Fredman describes the target to be one not at the top
of power structure that resembles a power hierarchy.

Through looking at social relations of rank order, we may have a better idea of what
is the disadvantage in question and who needs more representation by looking at the
structural and historical hierarchies. For instance, to identify the constraints of power
structures imposed on women, we may start from looking at the dichotomy of men and
women. With women in subjugation and having a traditional role of staying at home to
take care of the children, her disadvantage goes beyond financial dependence on the
husband to lowered competitiveness, which in turn deprives her of opportunities and a
social circle at work. The stereotype of women staying at home may include women being
too small-minded or too weak for politics, and impede women’s participation in political
decision-making.

This is just an illustration of how MacKinnon’s hierarchy test could complement

Fredman’s four-dimensional concept. I still stand by my criticism of the hierarchy test of
being convoluted, but I contend that it has its merits, and may offer specific insights to
Fredman’s concept.

6. Conclusion
In this essay, I have examined the attempts of both MacKinnon’s hierarchy and Fredman’s
multi-dimensional model at defining substantive equality. I argue that Fredman’s multi-
dimensional model is more meritorious, given that MacKinnon’s formulation is nebulous
and restrained to dichotomies that don’t reflect power inequalities in real life. However, I
believe that the hierarchy test itself may complement Fredman’s four-dimensional model
and provides a better understanding of substantive equality.

Short essay example 2:

The Law has Moved On – A Response to Neil Foster

Academic Article Chosen:

Neil Foster, ‘Freedom of Religion and Balancing Clauses in Discrimination Legislation’
(2016) 5 Oxford Journal of Law and Religion 385

TABLE OF CASES

Ashers Lee v Ashers Baking Co Ltd [2015] NICty 2 (19 May 2015);
[2018] UKSC 49
Blood Transfusion Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757

Bull Bull & Bull v Hall & Preddy [2013] UKSC 73

Chaplin Chaplin v UK (2013) 57 EHRR 8

Cobaw Christian Youth Camps Limited v Cobaw Community Health

Service Limited [2014] VSCA 75

Eweida Eweida and others v United Kingdom [2013] IRLR 231

Hands-on Originals Hands on Originals, Inc v Lexington-Fayette Urban County

Human Rights Commission Fayette Circuit Court Civil Branch
3rd Div Ky, Civil Action No 14-CI04474; James D Ishmael Jr,
J, 27 April 2015.

JFS R (on the application of E) v Governing Body of JFS and the

Admissions Appeal Panel of JFS [2010] 2 AC 728, [2009]
UKSC 15

Ladele Ladele v London Borough of Islington [2009] EWCA Civ 1357

Macfarlane McFarlane v Relate Avon Ltd [2010] EWCA Civ 880

Wesley Mission OV & OW v Members of the Board of the Wesley Mission

Council [2010] NSWCA 155

LIST OF ABBREVIATIONS

CA Court of Appeal
CYC Christian Youth Camps Limited, in Christian Youth Camps
Limited v Cobaw Community Health Service Limited [2014]
VSCA 75
ECHR European Convention on Human Rights
ICCPR International Covenant on Civil and Political Rights
NSW New South Wales
UDHR Universal Declaration of Human Rights UK United Kingdom
UKSC United Kingdom Supreme Court

The Law has Moved On – A Response to Neil Foster

A. INTRODUCTION

Amid a rising tide of human rights jurisprudence in the common law world, religious
freedom (in particular, the right to manifest one’s belief given it is subject to limitations
for the protection of others’ rights) 1 and right to equality 2 are at war. Foster’s article

1See for example, article 9.2, ECHR

2As required under various international instruments, e.g. Article 7, UDHR, Articles 2 and 26 ICCPR;
Article 14 ECHR
analysed the approaches adopted by Australian 3 and UK 4 courts on the matter, with
particular focus on sexual orientation and race. Upon emphasising states’ obligation to
protect religious freedom, 5 Foster argues (i) Australian and UK courts have been reading
anti-discrimination statutes in a manner that subordinates religious freedom vis-à-vis the
right to equality by failing to distinguish between refusal of service/ behaviour against a
person with a particular sexual orientation and refusal to support a particular message,
thereby wrongly considering some of the latter conducts as directly discriminatory; (ii)
affording inadequate weight to religious justifications in indirect discrimination cases; and
(iii) construing statutory religious exceptions too restrictively and, therefore, these must
all be overturned alongside legislative reforms to insert broad religious exemption clauses
in anti-discrimination legislations.

Simply put, whilst purporting to fight for ‘equal’ protection for religious freedom, bearing
in mind the symmetrical nature of religious freedom (i.e. freedom of being a Christian co-
exists with that of being otherwise), Foster effectively advocated for asymmetrical
exceptions that relieve religious adherents of liability stemming from discriminatory
behaviour.

B. DIRECT DISCRIMINATION – The Importance of Proper Categorisation

Foster’s analysis of cases in which businesses, on religious grounds, had failed to provide
goods or services without discriminating against patrons’ sexual orientation, primarily
lays on the distinction between differential treatment based on a person’s sexual
orientation (prohibited)6 and mere refusal to support certain messages (not prohibited),
namely homosexual sexual activity and lifestyle.

Foster first analysed Bull, in which the UKSC held the Christian innkeepers were directly
discriminating against a gay couple (registered civil partners) by refusing to let them a
double-bedded room reserved for married customers. The majority relied on a statutory
provision7 that bars the innkeepers to claim the couple’s marital status as registered civil
partner is materially different from married couples, such that it was a case of direct
discrimination on the ground of marital status (not prohibited for provision of service).

3 Foster’s analysis features various NSW and Victoria appeal cases, and for present purposes it is
unnecessary to distinguish between these jurisdictions.
4 Foster’s analysis features various appeals from Northern Ireland and England & Wales to the UKSC,
and for present purposes it is unnecessary to distinguish between these jurisdictions.
5 Article 18, UDHR; Article 18, ICCPR; Article 9, ECHR
6 Regulation 3(1), The Equality Act (Sexual Orientation) Regulations 2007, i.e. the then prevailing statute.
7 Regulation 3(4), The Equality Act (Sexual Orientation) Regulations 2007, i.e. the then prevailing statute.
Foster, despite acknowledging the law’s protection of conduct inextricably tied to sexual
orientation,8 disagreed with the majority’s construction of ‘homosexual sexual activity’ as
belonging to such protected category and, in light of its repugnance to adherants of
different religions, 9 argued the UKSC’s construction of r.3(4) to have effectively
subordinated religious freedom to equality rights. He then raised the purportedly
contrasting authority of Bunning – a case of unlawful dismissal claim filed by a former
counsellor of a Catholic organisation dismissed for supporting polyamorous activities and
complained about discrimination based on her ‘sexual orientation’, which was then
rejected – and asserted courts to have acted inconsistently in failing to distinguish between
sexual behaviour and the status based on a person’s sexual orientation.

Two fundamental errors are observable, namely Foster’s conflated understanding between
‘homosexuality’ as a sexual orientation, and sexual behaviour (e.g. polyamory) unrelated
to sexual orientation. Indeed, polyamory is not a sexual orientation; and Foster has read
Bunning out of context as the court was simply saying the counsellor’s reliance on sexual
orientation discrimination is misplaced, instead of laying any rule Foster asserted. More
problematically, it’s unclear how the provision of a double-bedded room is related to
sexual behaviour. Bull simply concerned the innkeepers’ refusal to provide service to the
same-sex couple, and given they were unable to get married, 10 the innkeepers were
naturally discriminating against all non-heterosexuals; and the UKSC was simply being
faithful to the balance struck by the Parliament to ensure the law remains above religious
belief, such that minorities will not be injured therefore.

Similar misunderstandings exist in the so-called lifestyle cases too. Upon analysing
Cobaw and Ashers, Foster claimed (i) CYC’s (the Christian organisation managing a
campsite) refusal to a booking request made by WayOut (an organisation supporting
homosexuals) is, as the court found, not discriminatory based on sexual orientation, but
merely refusing to support activities that advocate homosexuality and (ii) the Christian
baker’s refusal to prepare a cake decorated with a pro-same-sex marriage message is not
discriminatory as the trial court found, but merely a refusal to endorse the message under
the freedom of speech. Foster then endorsed the Kentucky’s Handson Originals case in

8 Foster rightly mentioned the approval of this position by supreme courts in South Africa, Canada,
Mexico, U.S. and Victoria CA.
9 He claims most Christians and Muslims (and other religions) found same-sex sexual behaviour
offensive.
10 It was only available after the Marriage (Same Sex Couples) Act 2013 come into effect on 13 March
2014.
finding that refusal to print ‘gay-pride’ advertisement on t-shirts was merely a refusal to
endorse the message.

In principle, Foster rightly observed the first instance decision of Ashers was wrong and
it should have followed Hands-on Originals, but his reasons were wrong since both cases
concern denial of services due to differential political views instead of the clients’ sexual
orientation. This was confirmed by the UKSC in Ashers,11 which postdates12 Foster’s
article. Indeed, it was unnecessary to distinguish Bull from Ashers because the latter is
simply a case of political discrimination – that is why the UKSC didn’t even cite Bull as
the issue of sexual orientation discrimination was non-existent. Bearing in mind support
for same-sex marriage or gay pride are political messages that a person of any sexuality
can hold, the ‘wrong’ was done to the message instead of the person. This explains why a
comparative analysis on Ashers, Cobaw and Hands-on Originals doesn’t advance
Foster’s case. His conflated understanding of this fine but important distinction is
regrettable.

Anti-discrimination law serves to ban infliction of harm legitimised by the religious

shield, thus Foster’s proposal of Cobaw must be rejected as it would effectively allow any
church-affiliated organisation easy denial of services to non-heterosexual entities and
frustrate the very purpose of anti-discrimination law.

C. INDIRECT DISCRIMINATION – A Proper Balancing Approach?

Foster was discontented for the court’s reluctance to increase deference to religious
justifications for indirect discriminatory behaviour, and proposed the adoption of the two-
stage approach in JFS in handling conflicts between the right to equality against racial
discrimination and religious freedom – namely to assess whether an anti-discrimination
policy infringes religious freedom has a legitimate aim and, if so, whether the
infringement is proportionate to individuals’ right to manifest their religion – in cases
where gay rights and religious freedom conflict.

Foster then criticised the court’s alternative finding of Bull having indirectly discriminated
against the homosexual couple and rejection of their reliance on a genuine belief that their
double-bedded policy was justified on religious ground as a failure to accord adequate

11[2018] UKSC 49
12This article was presented in June 2015, then modified and published in 2016 whilst the UKSC
decision was rendered in October 2018.
defence to genuine belief. He then raised the cases of Ladele and Macfarlane, unfair
dismissal claims that respectively feature a Christian marriage registrar who refused to
register same-sex civil partnerships and a Christian sex counsellor who refused to counsel
same-sex couples, and criticised the court, in holding the dismissals justifiable, for not
giving due regard to the claimants’ genuine religious belief and freedom to manifest it.

Regrettably, Foster failed to appreciate the rationale underlying the courts’ balancing
approach. The employers in Ladele and Macfarlane were obliged to provide services
without discriminating against homosexuals and, significantly, Ladele’s refusal to
discharge her duties in public office relating to registration of same-sex civil partnership
was plainly unlawful that her employer wasn’t at liberty to endorse 13 and it was
Macfarlane who accepted it was not feasible to shortlist counselling clients beforehand. 14
These are cases where the employers’ attempt to accommodate the claimants were
impractical, which necessitated findings that the dismissals were proportionate. Indeed,
Foster’s mere disagreement with the outcome does not entitle him to argue subjective
genuine belief should suffice for a get-away pass to be granted since that would
necessarily allow any service providers to say ‘I am a Christian and it violates my
conscience to help’ in refusing to serve non-heterosexuals, as did the Bull’s innkeepers,
thereby effectively defeating antidiscrimination law for most practical purposes by
unfairly privileging religious adherents whilst ignoring the need for particularly weighty
reason in justifying infringement to the right to equality. 15

D. BALANCING CLAUSES – Legislative Intervention and Judicial Construction

Foster then criticised the court’s restrictive interpretation of existing balancing provisions
for exemption for religious persons.

Upon conducting a comparative analysis of the approaches adopted by NSW CA and

Victoria CA on exemption provisions available to bodies established for religious
purposes, Foster contended Victoria CA 16 had infringed religious freedom by restricting
their application only to bodies set up directly for religious-spiritual purposes (i.e. instead
of camping service providers like CYC) when discharging their religious functions (e.g.
appointment of clergyman). Thus, this doctrinal defence is unavailable when such body is

13 See Ladele at §§44–46, 51–53; 69–71, 73

14 See Macfarlane at §§3-4
15 See e.g. Eweida at §105, as Foster cited in a different context.
16 In Cobaw
engaged in non-religious activities – an approach that contrasts with the broad reading by
NSW CA in Wesley Mission, which afforded deference to religious or moral doctrines
insofar as they are advocated by that religious body.

In pluralistic societies, whilst it is essential to safeguard the freedom to practice one’s

belief (e.g. wearing a cross whilst serving as a flight attendant as permitted in Eweida),
the law remains obliged to intervene should such manifestation inflict harm upon others
(e.g. through endorsing the hospital’s prohibition of a nurse from wearing a dangling cross
due to the health risks posed in Chaplin and Eweida – which Foster neglected). 17 Akin to
those imposed upon the freedom of speech, 18 appropriate restrictions imposed upon
religious freedom are essential to prevent perpetrators from hiding behind the religious
shield – thus the court’s willingness in authorising life-saving blood transfusion for minor
whose parents are Jehovah’s Witnesses.19 The question is whether the minor’s right to live
defeats his parents’ right of manifesting their religion.

Similarly, the law ought not dictate whether a particular religious view trumps another,
but to treat adherents of all faiths equally; the question is whether one’s right to manifest
one’s faith trumps others’ right not to be discriminated against. That is why the narrow
reading of Victoria CA is correct, for it reflects the legislature’s intention in favour of
intervention when churches disguise their discriminatory conduct as religiously-required,
whilst exercising restraint in cases about internal affairs of a religious institution, such as
the appointment of clergies. Therefore, the Parliament’s intention of – not affording
broadly-casted doctrinal defence for individuals in Australia that Foster criticised and the
subsequently restrictive judicial interpretations of the existing defences to give effect to
legislative intent – is clear. 20 That’s because Foster’s construction would necessarily
empower perpetrators to cast their own religious shields by justifying their discriminatory
conduct with purportedly-accepted religious doctrines.

Foster raised a seemingly potent argument by illustrating how the Salvation Army would
be rendered unprotected by the balancing clauses in serving the needy pursuant to Biblical
teaching under Victoria CA’s restrictive construction of ‘religious purpose’ in deciding
whether certain activities can avail of the protection therefrom. However, Foster’s
illustration necessarily entails any organisation established for ‘religious purposes’ shall

17 Neglected in the sense that Chaplin was a conjoined appeal alongside Eweida.
18 E.g. the tort of defamation.
19 See Blood Transfusion
20 See Foster’s criticism of Victoria’s CA narrow reading of s.84, Equal Opportunity Act 2010, which
provides a similarly worded defence to individuals, in Cobaw.
not be bound by anti-discrimination law, even where they are engaged in non-religious
activities. Here, Foster was concerned with the form instead of substance, potentially due
to his conflation of what ‘organisations established for religious purposes’ would mean in
the lay and the legal sense. Legislative intent must be considered in construing statutory
meanings whereas, here, it clearly is not intended that such a gargantuan backdoor be left
open, thereby essentially emasculating the entire anti-discriminatory regime. For
illustration, the corollary of Foster’s view would essentially render lawful the Salvation
Army’s (established for religious purposes in the lay sense) act of, for instance, refusal to
distribute recycled clothing (a non-religious activity) to gay beggars because of their
sexual orientation.

E. CONCLUSION – The Law Has Moved on

Foster slammed the courts for subordinating religious freedom to other human rights.
Indeed, insofar as the means and/or degree of manifesting one’s religious belief inflict(s)
harm upon others, Foster is correct – despite failing to appreciate states’ obligation to
proportionally limit individuals’ manifestation of religious belief to protect others’
rights.21 Nevertheless, he is incorrect in attempting to invent a legal shield exclusive to
adherents to certain faiths, thereby effectively giving them preferential treatments above
the law, as well as his out-of-context analysis of various decisions and human sexuality.

From the decriminalisation of blasphemy (protecting only the Christian church) 22 to

enacting legislative protection against discriminatory behaviour, 23 the law has moved on,
so should everyone.

Final assignment Q1 (example 1):

Question 1

In the introduction of “Equality and Non-discrimination”, Daniel Moeckli points out that
equality can be formulated in different ways and affirms Peter Westen’s view of equality
as an “empty idea”. He believes equality to be a political choice, and external values are
important in formulating the concept. The challenge is to come up with legal formulations
that could embody the notion of equality and help us apply it in practice.

21 As required under, for example, article 9.2, ECHR

22 As abolished by Criminal Justice and Immigration Act 2008 in England.
23 For example, Equality Act 2010.
In this essay, I would look at the preeminent international treaties and legal principles that
form the basis of many judicial decisions and domestic laws in order to examine whether
the law is effective in achieving substantive equality. In the first part of my essay, I will
explain the more influential concepts of equality, and examine how the legal formulations,
namely, (1) The Convention on the Elimination of all Forms of Discrimination Against
Women (“CEDAW”), (2) Convention on the Rights of Persons with Disabilities
(“CRPD”), and (3) the Yogyakarta Principles (YP 2006) and its supplement (YP plus 10),
give substance to those concepts. In the second part, I will look at their application and
evaluate whether the law successfully promotes substantive equality.

To begin with, there are different understandings towards what equality should be.
According to Fredman, the most basic concept is equal treatment, where likes should be
treated alike in order for there to be consistency. However, this formulation creates
problems such as creating powerful conformist pressures and levelling down, so other
concepts of equality emerge. There is equality of results, that aims to distribute benefits
fairly through equal outcomes, and equality of opportunity, which seeks to equalise the
starting point rather than the end result. There is also the concept of dignity, which
connotes innate and indefeasible human worth.

For Fredman, the last three concepts are unsatisfactory. Equality of results fails to address
the structures that perpetuate discrimination, equality of opportunities does not ensure
access to those opportunities, and dignity is a concept that is open to different
interpretations and may yield opposite results. Hence, Fredman proposes her own four-
dimensional model of substantive equality. The first dimension redresses disadvantage
and seeks to remove the detrimental consequences attached to a status. It also recognizes
the asymmetric nature of substantive equality. The second dimension recognizes stigma,
stereotyping, humiliation and violence, and promotes equal dignity. The third dimension
encourages social inclusion and political participation. The fourth dimension advocates
structural changes and accommodation of differences. Most importantly, these dimensions
complement and address each other’s weaknesses in order to provide a comprehensive
framework of substantive equality. 24

Fredman claims that this multi-dimension model addresses the problems with the previous
concepts of equality, and it appears to be have been widely accepted as what substantive

24 A similar explanation of this model has been given in my short essay.

equality should be, as we will see in the preeminent legal formulations of CEDAW, CRPD,
and the Yogyakarta Principles, both YP 2006 and YP plus 10. I deliberately choose these
examples because of their significance and influence over judicial decisions and domestic
legislations in their respective grounds.

(1) The redistributive dimension

This is reflected in the asymmetrical approach of all three legal formulations. CEDAW, as
titled, “address[es] women’s specific experiences of discrimination” and focus on
discrimination against women alone and not against both men and women (Cusack and
Pusey 2013). It recognises, for instance, the disadvantage of women in matters relating to
marriage and seeks to eliminate discrimination against them in this respect (art. 16). CRPD,
also as titled, identifies the disadvantages the disabled are at and aims to remove the
detrimental consequences, such as the lack of access to the transportation and services (art.
9). YP 2006 and YP plus 10 also recognise the detrimental consequences of the status as
LGBTs, which include being subject to conversion therapies, and seek to ensure their
protection from medical abuses in principle 18.

(2) The recognition dimension

The three legal formulations also acknowledge existing stereotypes of the respective
groups. CEDAW’s art. 5(a) clearly recognizes the existence of stereotypes of women and
art. 5(b) identifies one of the many stereotypes, and that is the image of women as primary
childgivers. CRPD’s art. 8 requires the states to “foster respect for the rights and dignity
of persons with disabilities” and “combat stereotypes […] and harmful practices relating
to persons with disabilities in all areas of life. YP plus 10’s principle 32 recognises the
existence of stereotypes and stigma that drive modifications to sex characteristics and
infringe the right to bodily and mental integrity.

(3) The transformative dimension

The third dimension is also seen in the various provisions that advocate changes in
structures that perpetuate inequality. For instance, CEDAW’s art. 2(f) requires states to
“modify or abolish existing laws, regulations, customs and practices which constitute
discrimination against women” and art. 5(a) asks states to “modify the social and cultural
patterns of conduct of men and women” in order to eliminate the prejudices of women
owing to stereotypes. The same obligation in CEDAW’s art. 2(f) is imposed on the state
parties in CRPD’s art. 4(b), and CRPD further requires the state parties to “undertake or
promote research and development of universally designed goods, services, equipment
and facilities […] to meet the specific needs of a person with disabilities. YP plus 10’s
principle 31, for instance, requires states to adopt a mechanism that “legally recognises
each person’s self-defined gender identity” and “make available a multiplicity of gender
marker options”. This change in the legal recognition of gender would include people who
cannot conform to the existing binary structure.

(4) The participative dimension

The last dimension is embodied in CEDAW’s art. 7 and art. 8, which asks states to make
sure women can participate in the political and public life, by ensuring their right to vote
and representation in the government. CRPD’s art 19 requires states to ensure the inclusion
of persons with disabilities in the community by allowing them to choose their place of
residence and giving them access to community support services and facilities. YP 2006’s
principles 25 and 26 ensure the right to participate in public affairs and cultural life
respectively.

As seen from here, all three legal formulations incorporate Fredman’s multi-dimensional
notion of substantive equality. The next question is, how effective are they in achieving
substantive equality, particularly in application?

To begin with, the legal formulations impose obligations on state that would help with the
evaluation on policies to determine whether they comply with the notion of substantive
equality. For instance, on the domestic level, in EOC v Director of Education, the local
court uses CEDAW to make a decision on the policy that elevates the performance of boys
in a public academic assessment at the expense of girls. It refers to art. 10 that requires
state parties to eliminate stereotype concepts of roles of men and women in all forms of
education, and on this basis, it holds the existing mechanism that reinforces the stereotypes
of girls being smarter at that particular age and results in a less favourable treatment of
girls to be discriminatory and unlawful. Although no specific relief is made, the
declaratory relief is sufficient to persuade the Director to make changes in order to redress
the effects of such discrimination. This is one example of how specific state obligations
in such legal formulations that conform to Fredman’s multi-dimensional notion could help
identify existing flawed practices and eliminate stereotypes to promote substantive
equality.

Another example would be the application of art. 2 of CRPD in Beasley v Australia on an

international level. Here, a deaf person was called for jury duty but was not selected
because she was not provided help of any sort such as interpreter or real time captioning.
The Committee on the Rights of Persons with Disabilities refers to art. 2 of CRPD that
includes denial of reasonable accommodation as one of the forms of discrimination, and
holds that the modifications provided by the State party for people with hearing
impairments prevent the author from participating in a jury on an equal basis with others.
Even though the State enjoys a margin of appreciation, the Committee holds that no
arguments were presented to demonstrate a disproportionate or undue burden on the state
party, and therefore the lack of reasonable accommodation here amounts to disability-
based discrimination (15). This shows how a legal formulation enables the international
court to scrutinise the State party’s compliance with its obligation, which is shifting from
maintaining equal treatment to identifying indirect discrimination in existing policies in
the gradual progress towards substantive equality.

So far we have seen how the legal formulations on state obligations are effective in guiding
the courts to determine on issues of discrimination, but that is based on the premise that
the state obligations are adopted. What happens if the states are not bound by such
obligations? The YP 2006 and YP plus 10, for one, are a set of principles in relation to
sexual orientation and gender identity that a group of international human rights experts
come up with in a meeting set in Yogyakarta. Although it is highly influential given that
there is no specialised treaty in this area, it is nonetheless soft law and not binding on state
parties. In comparison to CEDAW and CRPD, there is no mechanism of enforcement such
as the formation of a committee to determine on inequality issues and the State does not
have to be accountable and justify any departures from the obligations specified. Apart
from enforcement, it seems also to have little influence on the reasoning of courts in the
determination of relevant discrimination issues, For instance, principle 12 advocates for
equal right to work and principle 13 advocates for the equal right to social security, but in
coming to their decisions in QT v Director of Immigration and Leung Chun Kwong v.
Secretary for the Civil service and Anor respectively, the Court of Final Appeal applies its
own proportionality test in coming to a decision and does not mention YP 2006 and YP
plus 10 at all. This questions the enforcement and applicability of the various standards in
YP 2006 and YP plus 10.

However, this does not mean that a specialised treaty would essentially be more effective
in enforcing state obligations. States are allowed to make political choices, just as Moeckli
suggested, and make reservations with regards to particular provisions, and in this sense,
the international provision is also helpless in promoting substantive equality. For example,
while the Committee on the Rights of Persons with Disabilities takes an absolutist
approach on the issue of legal capacity in art. 12 of CRPD and rejects any justifications
for denying legal capacity (General Comment 1), Canada reserves the right to allow for
substitute decision-making arrangements, and most states continue to operate some form
of guardianship. Another example would be art. 2 and art. 16(1)(c) of CEDAW on the
right to marriage, towards which Bangladesh’s government expressed reservation as the
provisions “conflict with Sharia law based on Holy Quran and Sunna”. As seen here, the
effectiveness of the legal formulations is greatly undermined by the power of the states to
make reservations and free themselves from state obligations that would have advanced
the cause of substantive equality.

Apart from the issue of compellability, the overly asymmetrical approach, particularly in
CEDAW, may actually entrench inequality. On the surface, they may seem to help us
identify distinctions that are legitimate to make, which is what Moeckli expects a concept
of equality to do. For example, art. 11 in CEDAW requires special protection to be
provided during their pregnancy in types of work that were proved to be harmful to them.
The same type of protection is not offered to men but this distinction is justifiable under
CEDAW. However, the language here has been criticised by Dianne Otto as it is
protectionistic and echoes the vulnerable image of women. The idea that they need special
protection undermines the perception of women’s capacity and further reinforces the
power hierarchy existing between men and women. In this sense, the legal formulations
may actually backfire in their advancement of substantive equality.

Another difficulty with CEDAW has to do with the heavy reliance on finding a comparator.
The treaty, as Dianne Otto argues, only allows women to claim rights that men do not
enjoy except as special measures. For instance, it does not touch on the problem of
unmarried women being denied access reproductive technologies because men do not
have and do not need access to the same reproductive technologies either. Here, the
dualistic conception of gender in CEDAW deems the comparator to be an unmarried man,
when the appropriate comparator should have been a married woman. As a result,
women’s specific and standalone reproductive rights including abortion rights would
never be recognised given the relative aspect of equal treatment here. (318) This
constitutes a gap in CEDAW’s realisation of substantive equality.

By comparison, CRPD and the YP 2006 and YP plus 10 seem more effective in promoting
substantive equality in their formulations. They avoid protectionistic language and the
choice of diction in “special”, with CRPD using words like “appropriate” and “specific”
to characterise the measures and YP 2006 and YP plus 10 avoid any connotation of
measure altogether. They also do not place as much reliance on finding a comparator. For
instance, CRPD recognises that reasonable accommodation should be provided to persons
with disabilities independently without reviewing whether a comparator, if any, needs
such an access. Similarly the YG plus 10 advocates for the availability of a multiplicity of
gender marker options and gender recognition mechanism, without having to refer to a
comparator. In these two areas, it seems that CRPD and YP 2006 and YP plus 10 are
stronger in their pursuit of substantive equality than CEDAW.

To conclude, the preeminent legal formulations, namely, CEDAW, CRPD, and YP 2006
and YP plus 10 embody Fredman’s notion of substantive equality in the normative sense,
even though CEDAW may be overly protectionistic in its formulation and heavily relies
on finding a comparator. In application, the legal formulations provide a systematic
approach to help courts make legitimate distinctions and evaluate whether local policies
and state parties comply with the notion of substantive equality, as exemplified by EOC v
Director of Education and Beasley v Australia. Nonetheless, the facts that YP 2006 and
YP plus 10 are not legally binding, and that states can make reservations even to the legally
binding CEDAW and CRPD reveal the limitations of international law—its application is
ultimately a political choice by the state parties.

Final assignment Q1 (example 2):

A. INTRODUCTION

Despite the growing acceptance of anti-discrimination protection as a human right

protected through, amongst others, domestic and international legal formulations, fierce
controversies surrounding the proper boundary of anti-discrimination legislation beg the
question of what exactly is the law designed to protect – from a mere sense of formal
equality embedded in the maxim of ‘like cases be treated alike’ (Fredman, 2011, pp.8-14)
to the promotion of substantive equality by adopting a multi-dimensional approach
encapsulating the intersectional prejudice against groups of persons with certain
characteristics (Fredman, 2016, pp.712;727) or a narrower social-hierarchical conception
of inequality by viewing discrimination vertically for it artificially ranks certain human
characteristics in preference over others (MacKinnon, 2016, pp.739-740) – the adoption
of either approach would materially affect how anti-discrimination protection is affected.

Being a young realm of law that challenges hitherto moral and social power relations,
judges’ conception towards equality is particularly decisive as it is only through courts
that legal formulations can be interpreted (interpretation or decision by international treaty
bodies are often unenforceable, e.g. Australian government’s refusal to adopt CRPD’s
decision of Beasley v Australia) and enforced. Nevertheless, despite burgeoning anti-
discrimination litigations, the doctrinal foundation of anti-discrimination law remains
uncertain – as can be demonstrated by the incohesive jurisprudence in Hong Kong.

With the enactment of four anti-discrimination statutes alongside broader

constitutional protection under the Basic Law, ICCPR and other international instruments,
the Hong Kong courts have been drawing upon different theories on the objectives of anti-
discrimination law – with some cases reflecting reluctance to move beyond formal
equality due to statutory and other constraints whilst others showing an increasing
inclination towards substantive equality. Hence, this analysis will examine three anti-
discrimination litigations over the past decade, namely CFI’s decision of Tong Wai Ting
v Secretary for Education, unrep, HCAL73/2009 (‘Tong’); CFI and CA’s decisions of
Leung Kwok Hung v Commissioner of Correctional Services (‘CCS’) [2017] 1 HKLRD
1041; [2018] 2 HKLRD 933 (‘Long Hair’) and CA and CFA’s decisions of Leung Chun
Kwong v Secretary for Civil Service [2019] 22 HKCFAR 127; [2018] 3 HKLRD 84
(‘Leung’), thereby illustrating how differently-constituted courts would decide on the
same set of facts differently due to differential conceptions towards equality on matters
pertaining to disability, sex and sexual orientation respectively. The uncertainties arising
thereof and their hinderance to the law’s effectiveness in achieving substantive equality
are, it is argued, inevitable insofar as judges are bound by statutes predisposed with
elements of formal equality and/or perpetually fail to make sense of the jigsaw comprised
of international human rights jurisprudence (predominantly favours substantive equality),
domestic statutes and conflicting appellate decisions.

To avoid evaluating the law’s effectiveness in abstract, this study of Hong Kong helps
to examining the matter contextually. The analysis is then concluded by discussing how
the interplay between the law and extra-judicial factors would affect the former’s
effectiveness in realizing substantive equality.

B. CASE-ANALYSIS

B1. Disability–Tong

This is a neat illustration where both formal and substantive equality co-exist in one
judgment – whereas statute-induced formal equality creeped into a situation that, on closer
scrutiny, doesn’t engage equality, the obiter on an incidental matter reflected the court’s
willingness to give effect to substantive equality.

Here, Tong (who suffers from intellectual disability (‘ID’)) challenged the alleged
imposition of an age limit (18-year-old) for students with ID (‘ID Students’) who seek to
extend their free education at special schools by one year vis-à-vis the absence of age limit
for students seeking to repeat in a mainstream high school constitutes direct disability
discrimination prohibited under (s. 6(a), DDO) (§§1-6). Cheung J, upon conducting the
statutory-exercise comparing Tong with a hypothetical non-impaired student who had
completed 11 years of free education and the HKCEE then sought to extend his studies
for one year (s. 8, DDO) (§80), concluded there was no discrimination because all students
(ID/Mainstream) seeking for an one-year extension at the end of an education stage (the
end of 10+2-year programme for ID students and 11-year programme for mainstream
students) are not entitled as of, but are instead subjected to a merit-based assessment
alongside other considerations (§§36-39). As such, since the percentages of quotas
reserved for mainstream repeaters and ID students are similar, the latter had not been
treated less favorably (§§81-83).

Loper argued this case presented the difficulty of finding a helpful comparator as the
two students are plainly not similarly-situated given how special and mainstream schools
carry with them completely different expectations; comparison on that basis is, therefore,
a non sequitur (Loper, (2010) 40 HKLJ 419, 446) – the analysis predicates on Fredman’s
(2011, pp10-11) ‘comparator problem’ when formal equality is what the law seeks to
achieve, for it dubiously condones comparison of individuals by ignoring extrinsic
characteristics and socio-political contexts. As in here, Cheung J assumed an ID student
who receives a wholly different education and is not required to take a public exam (thus
his extension mostly depends on his teachers’ professional judgement) to be similarly
situated with a mainstream student, whose readmission is primarily determined by his
HKCEE results. Such artificial comparison and any subsequent analysis lack regard to the
relevant contexts (as required in achieving substantive equality), which branded the
decision with formal equality.

Despite Cheung J would still had to apply the statutorily-imposed comparator analysis
had this case actually concerned disability discrimination, the more problematic nature of
this decision is in how parties and his Lordship had lost sight of the fundamental difference
between an ID student and that hypothetical student. Since substantive equality requires
that different people be treated differently (Fredman, 2011, p13), the decision that
disability discrimination was engaged snubs that ideal.
 As Cheung J acknowledged (§§26; 28-29; 68), the 18-year age-limit is not an absolute
bar for ID students – it is merely a point at which most ID students – who usually begin
their 12-year free education at 6 – would have completed their education and graduated,
instead of a point that requires ID students who haven’t completed their 12-year
programme due to certain prescribed grounds to leave school. More significantly, the
Government’s unrebutted evidence (§23) makes it clear that there’s no question of ID
students to ‘repeat’ since ID students, unlike mainstream students who wish to re-sit
HKCEE, are not required to (and incapable to) take public examination. The extension
policy for ID students, therefore, predicated on completely different considerations. Here,
ID students are not comparable with mainstream students because, their disability aside,
they are subjected to different education systems such that only the latter is required to
undertake a public exam; and the considerations for extension of studies would naturally
be different because the former concerns the aim of achieving better ‘potential’
(presumably in life skills) and the latter concerns the potential of achieving better grades
after re-sitting HKCEE. There is, hence, no question of repeating for the former case,
which is why the plaintiff’s submission breaks down as recorded at (§74) as the plaintiff
had looked at the formal instead of substantive effect of the so-called age limit. Curiously,
instead of ruling a case of discrimination didn’t arise, Cheung J applied the comparator
analysis (§80), which opens to the potential that, should the percentage of quotas reserved
for applicants for extension between ID students significantly diverge (say 60%), then a
claim in disability discrimination would succeed in a case where, on closer scrutiny,
substantively concerns two groups of persons that are different as only one of these groups
take public exam, and therefore naturally the difference in follow-up measures.

Contrarily, a potential claim of disability discrimination can only arise for non-ID SEN
students vis-à-vis mainstream students as both sit for HKCEE with the former being
treated apparently more favorably as they are entitled to receiving free education up to the
age of 20 – 3-year more than the latter in most cases. Without detailed analysis as the
matter wasn’t substantively argued, Cheung J commented in obiter that such differential
treatment doesn’t constitute discrimination as the 3-year difference is meant to
‘compensate for SEN students’ disability’, and therefore isn’t discriminatory (§§104-107).
Without further elaboration, this obiter effectively promoted substantive equality since
differential treatment is required when such treatment, if aimed at mitigating the impact a
disadvantage (i.e. disability) has over a person, is essential to ‘level up the playing field’
(Fredman, 2011, 13). Absent bearing that recognizes this type of reasonable
accommodation in DDO (Loper, 2010, pp. 441-442), this decision is an encouraging move
to recognize substantive equality in pre-2010 anti-discrimination jurisprudence.

B2. Sex–Long Hair

This case illustrates how differential conceptions towards formal and substantive
equality can give rise to judicial inconsistencies on one set of facts.

Here, Long Hair, upon his admission to prison, was required to comply with (and
following an Officer’s decision he complied with under protest) a prison rule that
mandates male prisoners to have their hair ‘cut sufficiently close’ on health and cleanliness
grounds – a decision (and a rule) which he later challenged as constituting direct sex
discrimination as prohibited under (s. 5(1)(a), SDO) and article 25 of the Basic Law as he
is treated less favorably than a female prisoner whose hair ‘shall not be cut shorter than
the style on admission without her consent’ (§§7-11).

After trial, Au J acceded to the challenge and declared both the decision and the rule
unlawful for constituting direct discrimination on Long Hair’s sex (§§82; 98; 116). His
Lordship applied the comparator test to examine whether Long Hair’s hair would have
been cut but-for his sex, which was answered in the negative (§§37-38), and rejected
CCS’s contention that the ‘real reason’ for such distinction is not one of sex, but to
maintain prison security and discipline as male inmates are statistically more inclined to
using long hair to store contrabands and it poses risks in the event of physical violence (as
male inmates are more frequently involved in) (§§27-28; 31) on the ground that such
gendered justifications remain predicated upon gender-line, and are therefore prohibited
under (s. 5(1)(a), SDO) (§§40-41). Acknowledging CCS’s failure to explain why the
requirement shouldn’t be applicable to female prisoners, his Lordship commented in
obiter that equality can be achieved by requiring all prisoners to have their hair trimmed
to a designated length (§97; 99-108).

On appeal, CA disagreed direct discrimination is engaged by criticizing Au J for not

considering all appearance restrictions altogether and; having recognized the prevailing
‘conventional standards’ of hair length (male having short hair, female having short or
long hair) (§9) locally, the fact that both male and female prisoners are being subjected to
an even-handed approach of appearance-restrictions that conforms with the respective
gender’s ‘conventional standards’ (which includes but not limited to hairstyle) with a view
to de-emphasizing aspects of individuality have not rendered inmates of either gender
being subjected to a less favorable set of rules vis-à-vis the other gender (§§9-10; 53-56,
92-94). Significantly, CA rejected Long Hair’s contention that the reference of gender-
based ‘conventional standards’ is one of gender-stereotyping as this case doesn’t concern
differential treatment based on gendered assumptions on know-how and ability or gender
role, but simply recognizing the prevailing male-female distinction that remains relevant
(e.g. Olympic Games) (§§57-77)

This case demonstrates how judges’ differential conceptions of equality would affect
their reasonings. At CFI, Au J gave effect to substantive equality by going beyond the
comparator test, but examining the real reason for differential treatment before rejecting
CCS’s contention – this approach allows judges to look beyond mere formalities but
conduct a contextualized assessment. Importantly, his Lordship’s resolute rejection
against giving weight to gendered justifications is a breakthrough since such treatment
falls within what (Fredman, 2017, p.727) refers to as the recognition and transformative
dimensions of substantive equality – such that the removal of stereotypes are essential in
sowing the seeds of revolutionizing conceptualization towards gender. What taints his
Lordship’s analysis is the suggestion of having the hairs of all inmates trimmed, for it
reduces the matter to formal equality. Akin to the levelling-off situation in Palmer v
Thompson, where the U.S. Supreme Court endorsed the Mississippi council’s decision of
closing all public swimming pools to avoid opening one for non-Caucasian as (Fredman,
2011, p. 10) criticized, such blanket treatment necessarily entails usurping a privilege off
the relatively privileged group, and such formalistic mindset of like cases be treated alike
is a backward development of equality – notwithstanding his Lordship’s comments remain
obiter. Disappointingly, the CA’s approach is a full-blown retraction to formal equality.
To begin with, CA’s reference to a ‘conventional standard’ on both genders only reinforces
gender stereotype instead of reducing them as substantive equality requires, and begs the
question of what permissible stereotypes are – thereby creating greater uncertainties. For
example, the assumption that Roma are often associated with petty crimes and racial
profiling should therefore be justified is effectively indistinguishable from saying there’s
a conventional standard that male wears short hair – both of which are stereotypes based
on race and gender respectively and are mostly unsupported by evidence. Alas, the even-
handed imposition of ‘conventional standard’ on both genders is akin to endorsing the
prison authority’s argument in Johnson v California, such that racial segregation of
inmates didn’t amount to discrimination as they were all ‘equally segregated’ – an
argument that was firmly rejected as differential treatment doesn’t become justifiable on
the presumption that everyone suffers from the same kind of treatment. Similarly, just
because they are subject to so-called ‘equal’ treatment doesn’t make sex discrimination
not engaged – it is a matter of substance that the sole reason of Long Hair being required
to trim his hair is because of his gender, which necessitates his compliance with a rule
premised upon a gendered assumption – a circular justification that is prohibited under
SDO. Therefore, CA’s purported contextual understanding of the matter by construing this
rule as predicating on prison’s discipline instead of gender is one made out of context by
taking comfort with formal equality – a wrong-turn that CFA can hopefully rectify
(pending judgment).

B3. Sexual Orientation–Leung

Following the court’s willingness in QT to lean towards substantive equality (Loper,
2019 44 NCJIntlL 273, pp301-305), Leung at CFA again showcases how substantive and
formal equality can co-exist in an apparently liberal decision.

Leung, a civil servant who had married his same-sex partner under New Zealand law,
challenged the Government’s decisions of not affording his partner civil servant’s spousal
benefit on the ground that same-sex marriage is unrecognized under Hong Kong law, and
denying his application for joint-tax assessment because they are not ‘husband and wife’
as required under the taxation legislation, thus unconstitutional for discrimination against
Leung’s sexual orientation (§§2-9).

Here, recognizing the difficulty of conducting a comparator analysis since the use of
marital status doesn’t signpost as to whether same-sex and heterosexual spouses are truly
analogous given the exclusivity of marriage (in Hong Kong) to heterosexuals, the court
instead (on the Government’s concession) conducted a contextual analysis and concluded,
having regard to the formalities and nature of same-sex and heterosexual marriages, both
groups are in analogous situations (§§37-44). As discussed, such contextual analysis
promotes substantive equality by recognizing the pluralistic forms of discrimination
against persons of different sexual orientation (Loper, 2019, p. 300) and avoiding the
absurd contention that anybody irrespective of sexual orientation is entitled to
heterosexual marriage so everyone is treated equally – a non sequitur formal equality
entails. Similarly, the Government’s concession of considering this case as one of indirect
discrimination also tilts the balance towards substantive equality by looking beyond the
apparently neutral yardstick of marriage as a factor of differentiation.

Furthermore, CFA’s treatment of the rational connection point in the proportionality

analysis is noteworthy – this is where CA and CFA diverge as, despite starting on the equal
(but problematic) footing that there is a legitimate aim of protecting ‘traditional family’
(§§60-61), they disagreed on the rational connection requirement with the CA asserting
that holding otherwise would offend the ‘special status’ of marriage by extending certain
privileges (e.g. spousal benefits) exclusive to the purview of ‘traditional marriage’ to
people who are in forms of marriage not recognized domestically, thereby encroaching
the uniqueness of ‘marriage’ as purportedly protected by the Basic Law (CA: §§12; 90;
126); and the CFA rejecting this reasoning due to its self-justifying nature of willful
blindness to discrimination on Leung’s sexual orientation by justifying an institution
formulated in a way that discriminates on the same basis (§72-73). For these reasons, CA
and CFA had dismissed and upheld the applicant’s claim respectively as the remaining
steps of the proportionality test would be applied in a manner heavily influenced by the
second step (§§77-78; 81-82). Here, CFA’s willingness to recognize the way in which the
‘neutral’ yardstick has been disguised to discriminate persons of different sexual
orientation demonstrates its recognition of the structural prejudices these groups
encounter and reform the perspective through which the law (thus the society) look at
them – this is where the transformative and recognition (or in the long run, facilitates the
development of the participative dimension through encouraging minorities-instituted
judicial activism, thereby bringing equality claims in judicial and public spotlight)
dimensions of substantive equality are manifested.

Nevertheless, traces of formal equality remain regarding both courts’ acceptance of

protecting ‘traditional family’ constituted by heterosexual marriage as ‘no doubt’ a
legitimate aim (§§60-61). It contradicts substantive equality by saying an ‘aim’ of
protecting an institution that discriminates purely on sexual orientation remains legitimate
– as rejected in Ghaidan v Godin-Mendoza [2004] 2 AC 557 (§143) given its
inconsistency with the rights to equality and private life – as CFA cited with approval
whilst discussing the ‘rational connection’ point (§69). Without disrespect to the ‘settled’
proposition that the ‘marriage’ institution deserves protection international human rights
jurisprudence recognized (§60), this begs the question of what constitutes ‘marriage’ –
indeed nobody is advocating for its abolition or otherwise but are instead challenging its
entrance criteria that is premised upon sexual orientation when such characteristic is a
ground upon which discrimination is now considered unlawful. The fallacies of this logic
lie on the misconceptions that (i) there has been one single form of ‘traditional’ marriage,
namely Christian marriage – a proposition unsupported by evidence in Hong Kong (Wan,
2018 48(2) HKLJ, 605-623); (ii) the ‘unique’ status marriage would necessarily be
undermined when, in jurisdictions like New Zealand where same-sex marriage has been
recognized or when concubinage was lawful, marriage has always been unique vis-à-vis
other forms of relationship and; (iii) taking to the extreme, is tantamount to arguing the
tradition and uniqueness of the House of Commons, namely being a rational forum for
gentlemen-like exchange, would be undermined by allowing women’s (generally
considered emotionally-driven and irrational previously) participation, and should
therefore remain a ‘legitimate’ aim deserving protection notwithstanding gender equality.
Reliance on this logic (despite parties’ consent) in finding the said aim legitimate has
confined this part of CFA’s reasonings to formal equality, if not perpetuating inequality –
notwithstanding CFA’s understandable approach of confining its decision to the issues
raised whilst exercising judicial restraint to save any ensuing discussion to the future.

C. CONCLUSION
As we have seen, whether the law is an effective means in achieving substantive
equality is subject to abundance of substantive equality in international and domestic
statutes and judges’ willingness in faithfully applying them or, in the absence thereof,
formulating principled approaches in exercising their discretion. The judges’ hands are
tied when the overarching legislation (e.g. DDO) mandates a formal equality analysis (see:
Tong). On the other hand, a non-formalistic and cohesive jurisprudence coupled with an
effective law enforcement agency (instead of an under-funded EOC of no prosecutorial
capacity: Kapai, 2009 39 HKLJ, pp. 339-359) is particularly important in anti-
discrimination law given minorities’ lack of trust in a system that is hitherto operated by
and in favour of the ‘majority’, such that the lack of consistency would necessarily
disincentivize minorities’ in vindicating their rights through litigation having regard to the
excruciating process of revisiting their maltreatment and potential monetary costs –
without which anti-discrimination law would then be rendered toothless, and hopeless in
realising substantive equality. Nevertheless, without proper and cohesive understanding
of formal and substantive equality, judicial inconsistencies would necessarily ensue (e.g.
Long Hair) or be exacerbated in the more controversial areas of anti-discrimination
jurisprudence since the outcome would inevitably be driven by judges’ social and moral
values (e.g. Leung).

As regards Fredman’s multi-dimensional model, whether substantive equality can be

achieved also depends on whether the law can educate people of the concept of equal
dignity (subject to whether the law itself reflects substantive equality instead of endorsing
continued discrimination as in the gender stereotypes in Long Hair and traditional-
marriage narrative in Leung) and, hopefully, lead to further law reform. This is where
Moeckli’s (2018, p. 149) analysis is engaged as, whether politicians are willing to
formulate softcore (e.g. equality-friendly education and policies) and hardcore (e.g. anti-
discrimination legislation) formulations are largely driven not only by treaty obligations
(e.g. ICERD) as evinced by the existence of ‘declarations’ and ‘reservations’ as get-away
tools or states’ flagrant rejection of treaty bodies’ opinion (Beasley), but societal
acceptance towards equality – notwithstanding the debate of whether education shall
pioneer in gearing such acceptance and related reforms or; whether the law, as a heavy-
handed and educational tool, should empower the furtherance of substantive equality.

Final Assignment Question 2:

Link:https://www.aljazeera.com/news/2020/04/african-china-coronavirus-racism-
200424020525672.html

Unless otherwise specified, any article (‘Art’) mentioned herein refers to ICERD
provisions.

A. INTRODUCTION
1. As an ICERD state party since 1981, China is obliged to discharge its obligations
stated therein by combating racial discrimination (‘RD’) immediately and effectively
(Art. 2 & 4). In light of the Guangzhou Government’s (‘GG’) policies adopted since
April 2020 targeting persons of African descent (‘PADs’) specifically as part of its
COVID-19 response measures and multi-faceted differential treatments imposed upon
PADs by both state and non-state actors as disclosed in the captioned news item
(‘Article’), this analysis examines the extent of China’s failure to discharge its ICERD
obligations.

B. DISCRIMINATORY CONDUCT REPORTED

B1. Racial Profiling for Compulsory Quarantine
2. Following the COVID-19 diagnoses of five PADs, a government order was
promulgated in April to single out PADs residing in Guangzhou for compulsory
COVID-19 tests and 14-day quarantine regardless of their travel history.

B2. Hate Speech/ Other Forms of Discrimination

3. In addition to the circulation of a video featuring a Chinese notice that blames
‘Africans for “importing” the virus’ and therefore the necessity to quarantine them,
there has been a surge of xenophobia on online platforms responding to a news
featuring a PAD’s attack on a Chinese nurse (e.g. describing PAD-Chinese
relationship as ‘impure’ and advocating for deportation of PADs).

4. Accordingly, 180 Weibo accounts were suspended for inciting RD.

5. Moreover, PADs have since been suffering from differential treatments, ranging from
being denied access to various venues and eateries (e.g. a notice on the door of a
McDonald’s outlet that was later retracted prohibited PADs from entering) to
becoming street-sleepers following a boom of forced evictions by their landlords.

C. ANALYSIS
6. As PADs are being subjected to these treatments solely based on their race, a prima
facie case of direct RD as defined under (Art. 1(1)) is likely manifested, ICERD is
therefore engaged.

7. The next question is whether GG’s action and/or inaction towards the reported
situations violated its ICERD obligations.

C1. Racial Profiling

8. Notwithstanding racial profiling, as conventionally referred to law enforcement
agencies’ reliance on a person’s race as a dubious basis of suspicion that persons with
certain racial characteristic are more likely criminals and, therefore, more frequently
have them subjected to random stop-and-search (Durban Declaration against Racism,
RD, Xenophobia and Related Intolerance, §72), is not explicitly referred to in ICERD
(CERD GR No. 36, §13), the imposition of a race-only criteria in determining whether
PADs pose higher public health threats and therefore have them subjected to
compulsory quarantine measures is plainly a discriminatory conduct prohibited by
ICERD for the following reasons:

9. Instead of honouring its obligations not to engage in RD and ensuring compliance at

all levels of governance (Art. 2(1)(a)) by proactively eradicate legislations/policies to
that effect (Art. 2(1)(c)) through, inter alia, legislative means (Art. 2(1)(d)) and
deterring behaviour that buttresses racial segregation (Art. 2(1)(e)), GG’s policy of
compulsory quarantine enrolment through racial profiling and Beijing’s inaction in
prohibiting GG from so doing as required under (Art. 4(c)) (despite its Ministry of
Foreign Affairs Spokesperson’s reiteration of the Chinese Government’s zero-
tolerance towards RD) was an upfront affront to these obligations by effectively
encouraging racial division.

10. Likewise, Beijing’s non-compliance with these articles has intruded PADs’ right of
equal enjoyment of other rights enunciated in ICERD, namely their right to equal
treatment by organs within the criminal justice system (including law enforcement
 agencies) by acquiescing to GG’s empowerment of police officers to compel PADs’
compliance with the quarantine policy possibly with the use of force (Art. 5(a)); and,
hence, their loss of freedom of movement (Art. 5(d)(i)), right to return to their home-
country (Art. 5(d)(ii)), right to work (Art. 5(e)(i)) and right to security of person
against violence (Art. 5(b)).

11. Consequently, the lack of judicial recourse under this policy (as this appears to be
state-sanctioned with no known means and precedents of judicial challenge) and
despite the nominal existence of anti-RD legislations (e.g. the offence of inciting racial
hatred under Articles 249, 250 and 251, Chinese Criminal Law) has deprived PADs’
entitlement to effective protection and remedies against the economic and/or mental
injuries inflicted by acts of RD stemming from the nature of this policy as guaranteed
under (Art. 6).

C2. Hate Speech and Other Forms of Discrimination

12. Whereas racial profiling might buttress the negative perceptions towards PADs and
thus disabling their equal enjoyment of socio-economic rights guaranteed under (Art.
5) (e.g. rights to work and training (Art. 5(e)(i) & (v)) (CERD GR No. 36,§18), the
repercussions arising from GG’s stigmatising policy (i.e. associating PADs with
COVID-19 infection) have clearly given rise to other discriminatory conduct (e.g.
denial of PADs’ access to various venues) and the ‘impurity’ narrative – which carries
with it an underlying theory of Chinese superiority over Africans as prohibited under
(Art. 2 & 4).

13. Pausing here, although it goes beyond the scope of this analysis to examine the extent
to which China had discharged its obligation to outlaw RD under (Art. 4(a) & (b);
2(1)(d)) which, as CERD observes the status quo suffers from the lack of a
comprehensive anti-RD regime and its effective implementation (CERD’s Concluding
Observations on the combined 14-17th periodic reports of China, §§7&15), it is
relevant in determining whether China had violated its obligation under ICERD as
whether it is so does not depend on the mere emergence of hate speech and other forms
of RD alongside the mere existence of anti-RD legislations, but whether non-state and
state perpetrators have been held accountable through expedient investigations and
prosecutions and/or disciplinary measures such as removal from office respectively
(Art. 4(a) & (b); 2(1)(d)); with remedies made available to the victims simultaneously
(Art. 6) (CERD GR No. 35, §§17-22).
14. Akin to CERD’s finding in (Adan v Denmark (Communication No. 43/2008), §§2.1-
2.4; 3.1; 7.7) that Denmark’s failure to conduct an effective investigation to determine
whether a politician’s blanket assumption of all Somalis as perpetrators of female
mutilation and have them compared with paedophiles constitute an incitement of racial
hatred a violation of its obligations under (Art. 2(1)(d); (4); (6)), China’s failure to do
the same as of the date of writing by acquiescing to the circulation of racial hate speech
and perpetual perpetration of the said discriminatory conduct against PADs has
rendered it similarly liable.

15. Despite McDonald’s standalone retraction of the discriminatory notice, the fact that
the burgeoning of RD throughout Guangdong province remains unchecked and its
victims unremedied have glaringly undermined PADs’ right to equality.

16. Amongst others, noting that the hostility stirred up by racist hate speech often mutes
and thereby impedes the free speech of its victims (CERD GR No. 35, §28), coupled
with the hitherto limited freedom of expression in China and the fact that it was the
GG itself that first instigated such hatred through justifying its racial profiling policy
with the ‘Africans are importing the virus’ narrative, PADs’ equal entitlement to
freedom of speech (Art. 5(d)(viii) & (v)) has likely been further infringed alongside
the unchecked erosion of, for examples, their right to housing stemming from forced
evictions (Art. 5(e)(iii)) and right of access to places and services designated for public
usage (Art. 5(f)).

D. CONCLUSION
17. A state party’s obligations under ICERD are not discharged by simply executing
hardcore legislative and judicial interventions, but also its softcore responsibility to
provide effective education and information in enhancing inter-racial harmony with a
view to eradicating racial prejudices (Art. 7) and that to adopt urgent special measures
that offer comprehensive protection to a particular racial group in the midst of
intensified RD against that group (Art. 1(4) & 2(2)).

18. Albeit it is not the present focus to evaluate China’s achievements in providing anti-
RD education, the absence of immediate dissemination of anti-RD information from
the Beijing Government in light of the reported situation as of the date of writing (over
a month has passed) might have rendered it in breach of its (Art. 7) obligation. Whilst
an outright rejection of hate speech by the Ministry of Foreign Affairs Spokesperson
and Weibo’s swift action in freezing several accounts for their holders’ racist remarks
 are to be applauded, the fact that no information to the effect of dispelling or (at the
very least) retracting racist hate speech conveyed by both state and non-state actors
has not absolved the Chinese government from discharging its duty to this end.

19. Similarly, the lack of any special comprehensive strategy in combating heightened RD
against the preponderance of deep-rooted anti-PADs sentiments within the Guangzhou
community over the years as the Article reveals and raising public awareness of the
same serves as evidence of China’s failure in discharging its (Art. 1(4) & 2(2))
obligations having regard to the need of urgent special measures in times of heightened
RD (CERD General Recommendation No. 34, §§18-21; 37-39) and the hitherto
absence of any efforts in adopting special measure in prevent RD against PADs before
the reported situation took place (CERD’s Consideration of reports submitted by
States parties under article 9 of the Convention 14-17th periodic reports – China,
which discloses the lack of self-reported efforts to that effect). The increasingly severe
perpetration of RD behaviour against PADs stemming from the reaction by both state
and non-state actors regarding the ungrounded linkage of COVID-19 infection with
PADs has presented a stronger case for the Chinese Government to adopt special
measures with a view to protecting PADs’ equal enjoyment of other fundamental
rights in the days ahead, and it remains to be seen whether there would be a continued
breach of its (Art. 1(4) & 2(2)) obligations in the days ahead.

20. For these reasons, the Chinese Government’s inaction by acquiescing GG’s RD
behaviour in the reported situation has disclosed China’s flagrant violations of (Art. 1,
2, 4, 5, 6, 7) of ICERD to various extents.