V for Vidler
“The biggest concern [for the authorities] was that this was the first step towards gay marriage if it was allowed. But it isn’t a gay issue. Transgenderism is not sexual orientation. It is gender.” Over a midday coffee, and in between sessions at court, solictor Michael Vidler is animatedly discussing last year’s contentious ‘W’ case. It’s a case that, to his surprise, he lost, but not one he is ready to close the book on.
Vidler’s own story begins in the cobbled streets of east London where he cut his cloth at one of the largest criminal legal aid practices in the city. It was an intense period of after-hours assignments at dreary police stations representing those desperate for legal advice. In the early 1990s he upped sticks, went travelling, and arrived in Hong Kong where he now lives and practices out of his own firm covering a variety of issues – not just gay or transgender ones – from wrongful deportation to incidents of racial discrimination and unlawful arrest. He also works as a duty lawyer for those who cannot afford proper representation.
The landmark case for both Vidler and the LGBT community came in 2005, when he met the then 20-year-old William ‘Billy’ Leung: a quiet, hard-working young man not looking for the limelight, only justice. Vidler and his team were keen to overturn section 118C of the Crimes Ordinance, which imposed a maximum sentence of life imprisonment for any man who engaged in sexual intercourse with another man before the age of 21. As the age of consent for heterosexuals is 16, it was argued that making the age of consent for homosexuals higher was discriminatory and unconstitutional. Vidler and Leung had their case.
But they weren’t looking for an activist, says Vidler, because it was important that “the case would be dealt with from a legal perspective, not an activist one.” Nor was Billy looking to drive the case, but just to become a respectable role model. “Here you had a young man with a good job, who was responsible, whose family and friends hadn’t disowned him. His grandmother even turned up at the first hearing. It meant that other people in the community felt more comfortable about themselves when they saw Billy.”
The High Court agreed, as did the three justices of appeal, who said, when turning down the government’s appeal, that given the equality provisions enshrined in Hong Kong’s Basic Law, they failed to see the justification for the different ages of consent. History was made, and Billy went back to the life he wanted to live.
In many respects Hong Kong’s governmental agencies and authorities have had a chequered history when it comes to dealing with issues of sex and race – especially gay rights and minorities. Further still, old habits die hard, and, according to Vidler, it’s no surprise that “there is a lot of the religious right buried within the community, and it derives from the missionaries’ influence.” One particularly vocal and influential organisation is The Society for Truth and Light, who are committed to opposing any infringement on ‘traditional values,’ especially when it comes to the family unit. They claim that their mission is in “address[ing] social ethics, media behaviour, and sex culture in Hong Kong” through both the press and the education system, often benefiting from both direct and indirect government funding. Vidler firmly believes that one way to counter deeply entrenched societal perceptions of what is considered right or wrong is to ensure that there are voices that are heard from beyond the pulpit.
But not everything can be overturned so easily. Last year a post-op transgender woman was refused her constitutional right to marry her boyfriend because on her birth certificate she was still a he. Vidler, who represents the woman known only as ‘W,’ argued that: “The Basic Law guarantees the right of all citizens, it doesn’t say male or female, to marry. And she was effectively being deprived of the right to marry. As a supporting argument we highlighted the fact that the government had essentially paid for the treatment. It was done in a government hospital, and it was a government scheme that allowed people to change their sex.”
‘W’ even had her ID card, passport and school records changed to reflect her new gender but the government argued that the ID was ‘purely an administrative tool’ and it was her birth certificate that was the key bit of paperwork. To make matters worse, and in some sort of strange Kafkaesque nightmare, says Vidler, “the same person in charge of immigration and ID cards also oversees births, deaths and marriages. He essentially said that for the purposes of the ID card she was a woman but in terms of marriage she was still a man.”
Vidler is confident that they can overturn the High Court decision in the Court of Appeal, but will have to wait until October. For now, his other casework continues, as does that of the wider LGBT community whose members are hoping for a sea change in perception – especially from within the corridors of power where old habits really do die hard.
Find out more at vidler-co.com, and for emergency 24-hour arrest numbers call 9278 9972 (English) or 9270 3899 (Cantonese).