Equal Opportunities Commission v. Director of Education, No. 1555 of 2000
Action by the Equal Opportunities Commission (EOC) against the Director of Education for systematic sex discrimination within the Secondary School Places Allocation (SSPA) program; Whether the Director of Education's policies violated the fundamental right of equal treatment; Scope of Hong Kong's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Judicial Review of Education Policy; Right to Education on a basis of Non-discrimination; But for test of sex discrimination; Gender-based mechanisms; Application of the Principle of Proportionality.
Under the SSPA system in Hong Kong, children are evaluated and placed into corresponding secondary schools based upon an Internal Assessment (IA) and an Academic Aptitude Test (AAT). placed into secondary schools based on those scores. However, the IA and AAT scores were evaluated and analyzed based on sex, particularly because girls typically scored higher on the Internal Assessment portion and boys faired better on the Academic Aptitude standardized test. Thus, it was the Director of Education's position that there was an inherent gender bias in the testing system, and to correct this bias boys were accepted into top secondary schools with lower overall SSPA scores. The Director contended, among other reasons, that research shows boys experience a late bloomer's effect in terms of academic development and that this disparity in development is equalized between boys and girls at the time of graduation. Therefore, the SSPA system did not discriminate based upon sex, or if such discrimination did exist, there were sound and strong education reasons that justified its presence. The Court concluded that an exception to the fundamental right of equal treatment can only be created if the State actor can show: 1) the legislation is sufficiently important; 2) the measures designed to meet the objective are rationally connected to it; and 3) the restrictions are no more than necessary to accomplish the objective (proportionally). The Court held that the SSPA, in its application, did not meet this burden and thus violated the Sex Discrimination Ordinance. The Court also held that where reasonably possible, the ordinance should be interpreted to implement Hong Kong's obligations under the Convention on the Elimination on All Discrimination of Women (CEDAW). Specifically, the Court noted that Article 10 of CEDAW creates an obligation for governments to eliminate gender stereotypes of men and women and that the Director's unsubstantiated arguments that boys and girls develop differently did not justify discrimination against girls.
Keywords: Equal Opportunities Commission v. Director of Education, No. 1555 of 2000, Women, Rights
Following this decision in 2001, over 100 female students were transferred to more favorable schools and following 2002 the rankings and seat allotments are no longer based on gender. Because of the success of this case, the Equal Opportunity Commission has received at least two more sex discrimination complaints concerning the SSPA system, both in 2003.
Equal Opportunities Commission of Hong Kong
This case resulted of the first formal investigation of the Equal Opportunities Commission of Hong Kong. To many activists this case set the tone for the effectiveness and authority of the commission. The court's decision set an important precedent and provided the basis of interpreting sex discrimination under the standards established by CEDAW. In this case, the Tribunal made clear that the law must be construed consistently with the State's obligations under CEDAW. This case was also significant because Hong Kong had only become a party to CEDAW in 1996 and this was an early indication of its integration into the domestic legal system.