Allowing same-sex couples who married abroad to apply for subsidised public housing would hurt heterosexual married couples because taxpayer-funded housing resources in the city are extremely scarce, a Hong Kong court heard on Wednesday.

However, an applicant who challenged the government’s discriminatory policy on the basis of sexual orientation, said authorities had not assessed the impact that changing existing housing welfare policies would have on heterosexual couples.

Choi Hung Estate Kowloon, Hong Kong. Photo: Jayne Russell.

The hearing was an appeal filed by the government to contest rulings that a Housing Authority policy that prevents same-sex couples who married abroad from applying for public housing is unconstitutional and unlawful.

It combined the appeal against two cases. The first applicant was Nick Infinger, a Hong Kong permanent resident rejected from applying for public rental housing (PRH) with his partner in 2018. The second applicant, Henry Li, was not allowed to live in a government-subsidised flat owned by his late partner under the Home Ownership Scheme (HOS) as a spouse, without paying the government a hefty premium.

Hong Kong Court of Appeal justices Aarif Barma, Thomas Au and Jeremy Poon. (left to right) Photo: HKFP Remix.

During the hearing, judges Jeremy Poon, Aarif Barma, and Thomas Au of the Court of Appeal heard from lawyers representing the Housing Authority, which oversees both the government-subsidised rental and home ownership schemes.

Senior counsel Abraham Chan, who represented the government body, argued that the city’s housing policies include an “eligibility line,” which favours heterosexual couples. The line to differentiate benefit applicants was a lawful and “systemic feature” in the distribution of an “extremely scarce” resource in the city, Chan said.

Heterosexual couples’ rights to apply for housing benefits existed before the city’s mini constitution was drafted, Chan argued. But since 1997 those rights had been “crystallised” into a constitutional right, thanks to guarantees on residents’ right to social welfare in Article 36, and their right to raise a family in Article 37, Chan said.

The Housing Authority’s spousal policies were also designed to protect access and availability to housing for “traditional families,” thereby encouraging their formation. Granting the right to same-sex couples would create “competing demand” to the detriment of heterosexual married couples, Chan argued, adding that changes to these policies must therefore be proportional to the negative impact they would have.

High Court. File Photo: Kelly Ho/HKFP.

There were also citizens in more urgent need of government subsidised housing, such as older couples desperate to have children, or an adult child who wish to provide housing for their elderly parents for the remainder of their life.

If same sex couples were allowed to apply for government subsidised housing, heterosexual families would face longer waiting periods that “may critically impact their family life,” Chan said. However, he conceded that “it’s not for us to exhaustively catalogue” or measure what that negative impact may be.

“Given limited housing supply, a difficult and agonising decision needs to be made on who-gets-what, based on the scarcity of the resources,” Chan said.

Henry Li and Edgar Ng’s wedding in 2017. Photo: Supplied.

Judge Jeremy Poon, meanwhile, pointed out to the government that in Li’s case, granting the right for a same-sex spouse to be added to a flat as a resident would have no effect on the supply of HOS units available to other couples, because the flat was allocated to Li’s spouse in the first place.

In response, the government lawyer said that the court should consider the question from a “systemic perspective,” where alteration to the policy would encourage same-sex couples to acquire more flats to the detriment of others.

Real world impact?

Tim Parker, who represented applicant Infinger, pointed out that although the government said altering the city’s housing policies to include same-sex couples would have a negative impact on traditional couples or families, the authorities had not measured that impact.

“There is also no evidence that the authorities had attempted to assess the real world impact on [the public rental housing scheme, if it were] to adopt a non discriminatory policy,” Parker said.

“The government relies entirely on the dogma that for each same-sex couple that occupies a flat, a heterosexual couple would be pushed out,” he said.

Denying housing welfare to same-sex couples is also “cruel” and put them at a “significant disadvantage” that would last at least until they turned 60 years old, Parker said. Those above this age are given priority for flat allocations.

By depriving same-sex couples of the right to apply for public housing units together, the government would force them to apply separately as individuals, further contributing to housing demand. The per-head cost to build single-person flats was also more expensive than those for two people, Parker said. “It’s not only unfair, but also wasteful,” he said. “[Public rental housing] supply is not as the government claimed, a zero-sum game.”

Citing papers submitted to the legislature, Parker said that as the average waiting time for family applicants to public housing units had grown to more than 5.9 years, the only solution to the supply-demand imbalance would be to “vigorously” increase the supply of subsidised housing.

The hearing will continue on Thursday, when lawyers for the second applicant will make submissions.

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Selina Cheng

Selina Cheng is a Hong Kong journalist who previously worked with HK01, Quartz and AFP Beijing. She also covered the Umbrella Movement for AP and reported for a newspaper in France. Selina has studied investigative reporting at the Columbia Journalism School.