The Equal Opportunities Commission filed suit against the government. The plaintiff claimed that the state secondary school system had discriminated against a young female student. The female student had the same test scores as a male student, but the plaintiff claimed that the boy stood an unfair, greater chance of acceptance by his preferred secondary school than the girl.

The Court of First Instance of the High Court (this case was not appealed) held that the government’s admission policy was biased toward males over females. Furthermore, the government had not justified the discrimination by any of the reasons the government considered allowable. In so holding, the CFI referred to Article 22 of the Hong Kong Bill of Rights, which was domestic law and a copy of Article 26 of the ICCPR. The CFI also cited CEDAW, which was extended into domestic Hong Kong law in 1996. The CFI held that the provisions of the Hong Kong domestic Sex Discrimination Ordinance were “to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligations contained in CEDAW rather than being inconsistent with them.” The right of the individual, the CFI said, to be free from gender discrimination could not be easily subordinated to “group fairness”, that is, the notion that the school admission policy should be biased toward boys with lower test scores. <

After this decision, the Education Department changed its admission policy.

International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 19-21)

[link]