Hong Kong’s High Court rules Government’s discrimination against same-sex couples in public housing policy unconstitutional

In a decision handed down today the High Court has ruled that the Hong Kong Housing Authority (“HA”)’s exclusion of same-sex couples from eligibility for public housing as “Ordinary Families” is unlawful and unconstitutional.

Background

Applications to the HA for public housing are available to low income families in Hong Kong that meet certain criteria. The Applicant, Nick Infinger, married his husband in Canada in early 2018. Shortly after Mr. Infinger made an application to the HA as an Ordinary Family on the basis of his recent marriage within the policy administered by the HA. Mr. Infinger fulfilled all the criteria for the application made as an Ordinary Family. However, the application was refused on the basis that marriage is between a man and a woman and therefore Mr. Infinger’s marriage was not recognised for the purpose of this policy.

In November 2018 Mr. Infinger launched a judicial review of the decision to deny his application. The judgment referred to the recent decisions of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 324 and Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127.

HA’s arguments

The HA denial of Mr. Infinger’s eligibility under their policy to make an application was on the basis of his sexual orientation. The HA argued, among other things, that the policy was a measure in pursuit of a legitimate aim to support traditional (heterosexual marriage) families with regard to their housing needs, and a separate but linked aim to ensure administrative effectiveness in implementing the HA’s overall public housing policy.

The Court’s decision

In consideration of the application of the recent QT and Leung decisions the Court held that the HA’s policy “plainly cannot be justified as a measure to ensure the administrative effectiveness in implementing the Housing Authority’s PRH policy, which is to address the housing needs of low-income families”. Further, it was held that it was no more administratively difficult to determine the legitimacy of a same-sex marriage than an opposite-sex marriage.

As a result the Court concluded that (1) the HA was not able to justify the differential treatment of Mr. Infinger on the basis of his sexual orientation; (2) the exclusion of same sex married couples from eligibility to apply for public housing under the policy is unlawful and unconstitutional; and (3) Mr. Infinger’s application be remitted to the HA for fresh consideration with priority restored to the date on which it was first made.

This decision is one of a number of equality rights cases which have been determined by or are moving through the courts at the moment in a seemingly snowballing movement of positive change in Hong Kong. It is a significant decision as it is the first of Hong Kong’s equality rights cases to directly benefit lower income same-sex couples following the recent successes in the areas of civil servant benefits, tax, and eligibility for dependant visas in Hong Kong.

Attitudes towards and policies dealing with equality rights in Hong Kong are shifting at a more rapid pace than has been seen before with changes in the law playing an interesting and important part. For more information or advice on advancing equality rights in Hong Kong please contact Mark Side or Joanne Brown.

For summaries of the recent decisions in Hong Kong please see our articles on the QT and Leung cases and for a general overview of the current status of other equality rights cases please see our article linked here.

Joanne Brown and Elizabeth Seymour-Jones

If you would like to discuss any of the matters raised in this article, please contact: