Hong Kong’s appellate court has upheld two rulings that support the provision of housing benefits to same-sex couples. The court declared the government’s policies as unconstitutional and discriminatory.
On Tuesday, the Court of Appeal dismissed the government’s argument that permitting homosexual individuals to apply for housing as married couples would endanger the status of their heterosexual counterparts. The court stated that conventional marriage does not grant the latter any exclusive rights or advantages.
The court has taken note of the government’s assertions that the inclusion of same-sex couples in the housing market would result in a delay in the acquisition of homes. However, it has been observed that the law has never provided a guarantee that individuals can secure a flat within a predetermined timeframe.
The ruling ensued subsequent to the Department of Justice’s appeal against a judge’s rulings, which had granted homosexual couples the entitlement to seek public housing and cohabit in subsidized apartments under the Home Ownership Scheme (HOS).
In 2020, Justice Anderson Chow Ka-ming, who has subsequently been elevated to the appellate position, initially ruled in favor of permanent resident Nick Infinger, determining that the Housing Authority had unlawfully denied him and his spouse the opportunity to lease a public housing unit as a family.
One year later, Chow was granted another judicial review by the gay couple, Henry Li Yik-ho and Edgar Ng Hon-lam. The review ultimately determined that the authority’s decision to prohibit them from sharing the same HOS flat was deemed “oppressively unfair”.
According to the current regulations, same-sex couples are only permitted to submit individual applications for public rental housing, resulting in an extended waiting period. Additionally, they are unable to include additional occupants or become joint tenants of HOS flats without incurring an additional fee.
On Tuesday, Mr. Justice Thomas Au Hing-cheung, who wrote the 102-page ruling on behalf of the three-judge panel, declared that the differential treatment in question can be seen as “a form of targeted and explicit discrimination” and requires significant justification.
“The disparate treatment observed in the current instances represents a heightened manifestation of indirect discrimination compared to typical cases, as the criterion in question is unattainable for same-sex couples,” he stated.
The counsel representing the authority argued that permitting same-sex couples to vie for housing alongside heterosexual couples would result in the latter being deprived of housing resources that are already limited in availability.
However, Au stated that the aforementioned action would not have any impact on the rights currently enjoyed by conventional couples.
The individual observed that the Basic Law, which serves as the city’s mini-constitution, does not provide any assurance regarding the average waiting period for public rental accommodations.
The judge additionally disregarded the argument that the relaxation of current Housing Ownership Scheme (HOS) policies would have an impact on the quantity of subsidized residential units accessible to conventional households, deeming it as speculative.
The ruling of Au was supported by Chief Judge of the High Court, Jeremy Poon Shiu-chor, as well as appeal judge Aarif Barma.
Li expressed his gratitude for the verdict, however, he was deeply saddened by the unfortunate circumstance that he could no longer coexist with his late partner, Ng, who tragically took their own life in December 2020 following a prolonged battle with depression.
Li stated in a formal statement that it has been over four years since the commencement of this court case. He earnestly hopes that the Housing Authority, after careful deliberation, will refrain from appealing and allow this matter to be resolved, thereby enabling Edgar to finally rest in peace.
Daly & Associates, the legal firm representing the couple, asserted in the aforementioned statement that the LGBT community has endured “oppressive legal and financial injustices” as a result of what they deemed to be discriminatory policies implemented by the government.
The company emphasized the importance of the government and other public authorities taking prompt and proactive measures to uphold fundamental human rights, specifically the right to freedom from discrimination based on sexual orientation.
The legal system in Hong Kong does not currently allow for the recognition of same-sex marriage. However, there have been a number of court cases in recent years that have resulted in certain aspects of same-sex relationships being acknowledged, such as the ability to apply for spousal visas and make tax declarations.
The Court of Final Appeal has previously instructed the government to establish, within a period of two years, an official framework for the acknowledgment of same-sex relationships. This framework should encompass legislation that outlines the fundamental rights of these couples.
The court’s decision has the potential to initiate significant advancements in LGBT rights, however, the community maintains a cautious stance regarding the extent to which the forthcoming reforms can truly serve as a comprehensive solution to their challenges.
Following Tuesday’s ruling, the advocacy group Hong Kong Marriage Equality issued a statement expressing that the judgement unequivocally establishes that discrimination and unequal treatment based on sexual orientation should not be tolerated in public policy decisions.
It further urged the government to collaborate with essential stakeholders in order to effectively implement policies that would be advantageous to the community.
