High Court rules Housing Authority policy amounts to unlawful discrimination against same-sex spouses25Jun2021
In another step forward for same-sex rights in Hong Kong, the High Court today handed down a judgment confirming that the Housing Authority’s policy excluding same-sex married couples from their Home Ownership Scheme (“HOS”) amounts to unlawful discrimination on the ground of sexual orientation. The discriminatory policy was held to be both disproportionate and oppressively unfair.
The HOS previously excluded same-sex spouses of owners of HOS flats from being added as authorised occupants (in effect, preventing the HOS flat owner’s spouse from living with them) and required the payment of a premium for the same-sex spouse of a HOS flat owner to co-own the flat (which premium is not required to be paid by opposite-sex spouses). This was on the basis of a policy excluding same-sex spouses from consideration within the definition of “family members” and “spouses” for the purposes of the HOS.
The late Ng Hon Lam Edgar’s application for judicial review of the Housing Authority’s decision was allowed by Justice Anderson Chow, who made the following orders:
- a declaration that the decision (and the policy it was based on) was unlawful and unconstitutional for being in violation of Article 25 of the Basic Law and/or Articles 22(1) and 1(1) of the Hong Kong Bill of Rights;
- an order of certiorari to remove into the High Court and to quash the said policy and decision; and
- liberty to apply for such further or other relief as may be necessary to give effect to this judgment.
In his judgment, Justice Chow stated: “The fact that heterosexual marriage is constitutionally recognised and protected by BL 37 does not mean that it is permissible to discriminate against same-sex couples based on their sexual orientation in relation to matters where same-sex couples and opposite-sex couples are in a comparable or analogous position.”
Li Yik Ho and the late Ng Hon Lam Edgar won a previous judicial review with a judgment finding that on inheritance rights in intestacy which decision has since been appealed by the Department of Justice. Since Mr. Ng’s death in December 2020, Mr. Li has issued a third judicial review of decisions denying him the right to identify his husband’s body without the authorisation of Mr. Ng’s mother.
In a postscript to a previous judgment in the case of MK v Government of HKSAR  HKCFI 2518, Justice Chow commented that cases such as this challenging discriminatory government policies will continue to be brought before the Court until the government conducts a wide scale review of its policies and their application to those in same-sex relationships. It remains to be seen whether the government will do so in light of the success of similar cases in the Court of Final Appeal in recent years.
Joanne Brown and Elizabeth Seymour-Jones
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