In a landmark decision, the Hong Kong Court of Appeal has reaffirmed the rights of same-sex couples, rejecting two appeals from the Housing Authority that sought to deny them equal housing rights. The court's decision upholds two lower court rulings that found the city's Public Rental Housing scheme and Home Ownership Scheme's spousal policies to be both unlawful and unconstitutional. These administrative measures were deemed to be in violation of the Basic Law provision that mandates all Hong Kong residents to be treated equally before the law.
The appeals were rooted in two separate judicial reviews initiated in 2018 and 2019. The first was launched by Nick Infinger after his application for public rental housing was declined by the government. The Housing Authority had argued that Infinger's relationship with his partner, whom he had married in Canada, did not fit the traditional understanding of "husband" and "wife". Infinger contended that such a policy was both illegal and unconstitutional, as it discriminated against him and his partner based on their sexual orientation.
The second judicial review was initiated by Edgar Ng, who tragically took his own life in 2020. Ng's challenge centered on the Housing Authority's refusal to recognize same-sex spouses as "spouses" or as other "family members" of subsidized flat owners who had married overseas. Ng and his partner, Henry Li, faced challenges when trying to live together in a public rental housing unit after their marriage in the UK in 2017. Due to the Housing Authority's policy, Li was not recognized as an authorized applicant of the public housing flat, leading to complications for the couple.
The Court of Appeal, in its ruling, emphasized that the needs of same-sex couples for affordable housing and their desires to achieve home ownership jointly are no different from those of heterosexual couples. The court stated that there is a differential treatment based on the prohibited ground of sexual orientation. The Housing Authority's arguments, which suggested that the spousal policies only involved indirect discrimination, were rejected by the appeal judges.
Henry Li, expressing his sentiments on the ruling, stated that while he was grateful for the judgment, it was a painful reminder that his partner, the original judicial review applicant, was not present to witness the victory. Li emphasized that their simple wish to live together lawfully in their home was denied by the Housing Authority based on sexual orientation.
The recent ruling reinforces the principle that public policies should protect all individuals from discrimination and unfair treatment based on their sexual orientation. Advocacy group HK Marriage Equality has called on the government to collaborate with relevant stakeholders to establish a comprehensive framework for recognizing same-sex relationships.
This decision follows a ruling by Hong Kong's top court in September, which, while ruling against same-sex marriage, acknowledged the need for an alternative legal framework for same-sex relationships. The government was given a two-year window to develop such a mechanism.
