The High Court has said that a Housing Authority policy that prevents same-sex couples who married abroad from applying for public housing is unconstitutional and unlawful.
On Wednesday, the Court of Appeal ruled that the Spousal Policy violated the equal protection Hong Kong residents enjoy before the law, as well as the prohibition of discrimination as detailed in the Basic Law and the Bill of Rights Ordinance. The applicant of the judicial review, 26-year-old Hong Kong permanent resident Nick Infinger, filed the case in November 2018 – two months after the Authority’s rejection of his application for a family public housing tenancy with his partner.
Infinger and his husband wedded in Canada in January 2018 and they applied for public housing in March of the same year.
The Housing Authority wrote to Infinger regarding their eligibility in September 2018: “[T]he relationship between the applicant and family members must be either husband or wife, parent and child, grandparent and grandchild. As under the Shorter Oxford English Dictionary, ‘husband’ means ‘a married man especially in relation to his wife’ and ‘wife’ means ‘a married woman especially in relation to her husband,’” they wrote.
In relation to the housing policy’s premise of addressing the needs of low-income families, High Court judge Anderson Chow said that, other than its same-sex nature, the authority “has not been able to point to any difference between [the applicant’s] marriage and other foreign opposite-sex marriages.”
“There is no reason to believe that low-income families constituted by same-sex couples have any lesser need for housing than low-income families constituted by opposite-sex couples without children, he added.
Infinger’s application will be reconsidered by the Housing Authority in accordance with the judgement.
Following the judgement, Infinger said that it highlighted discriminatory and unconstitutional government policies that LGBT people in Hong Kong face every day: “How many judgments against the government does it take before the government stops relying on discriminatory policies and introduces LGBTI discrimination legislation in Hong Kong?” he said.
Michael Vidler, the solicitor for Mr Infinger, welcomed the decision: “Today’s judgment will have a real and positive impact on the lives of low-income LGBTI people in Hong Kong,” he said.
‘Time for same-sex marriage’
Hong Kong’s only openly gay lawmaker Ray Chan said the LGBT community was delighted by the ruling: “The legal victory should be viewed in the context of other rulings in favour of LGBT rights in Hong Kong in recent years such as employee benefits, dependent visas, and filing joint tax returns.”
I’ll speak at 2pm. I don’t understand how straight marriage is threatened by #gaymarriage. If anything, more people getting married will strengthen the institution. Moreover, these are the same people who are opposed to public discussion & consultation on #equality. #LoveWins https://t.co/87EFathwCm
— Ray Chan (@ray_slowbeat) March 4, 2020
Chan urged the Authority not to appeal against the decision and said he thought they had a high chance of losing the case. “Progress was made one step at a time… [And] every judicial victory comes at a high cost in terms of legal fees, time, and stress for the plaintiffs,” Chan added.
He called on the government to initiate a public consultation on same-sex marriage legislation as the current marriage system created hurdles for many: “It is time to announce that same-sex couples can enter into legally-recognised civil unions in Hong Kong.”
Director of Amnesty International Hong Kong Man-Kei Tam said: “This ruling is a triumph for equality and LGBTI rights, and a significant step forward in the fight against discrimination at the highest levels of Hong Kong society… No one should face discrimination because of who they are or who they love…. After the High Court’s welcome intervention, the authorities must ensure housing applications from same-sex couples are treated exactly the same as everyone else’s.”
“Today must be a wake-up call to the Hong Kong government, which must urgently review all its laws and policies to ensure no one else faces discrimination based on their sexual orientation, gender identity or intersex status,” he added.
Meanwhile, pro-establishment lawmaker Priscilla Leung told the press she was very disappointed and urged the government to lodge an appeal to seek fairness and justice, “in order to be responsible to the public of Hong Kong.” Hong Kong has yet to enact an anti-discrimination law to protect sexual minorities, which Leung said needed to be debated among lawmakers.
Last year, The Court of Final Appeal ruled in favour of gay civil servant Angus Leung who applied for spousal benefits for his husband after they married in New Zealand. The court approved the couple to be jointly assessed for tax purposes.
Opposition towards LGBT+ legal rights in Hong Kong is at a historic low, according to a recent survey by the Chinese University of Hong Kong.