The Hong Kong government has been given the chance to take its appeals over housing rights for same-sex couples who married overseas to the city’s top court.
The Court of Appeal handed down its decisions for two cases relating to access to public housing and inheritance on Monday. With the victory, the proceedings will be heard at the Court of Final Appeal, where the government could potentially overturn earlier rulings welcomed by LGBTQ activists.
Both decisions came after lower courts in 2020 and 2021 ruled in favour of same-sex couples who got married overseas, granting them equal access to the city’s public housing under two schemes and to the same inheritance rights as heterosexual couples. Over the years, the government has sought to challenge those verdicts.
Last October, the Court of Appeal shot down both of the government’s challenges. For the public housing rights case, the court ruled that existing measures of the Public Rental Housing Scheme and Home Ownership Scheme breached the Basic Law’s provision that all Hong Kong residents shall be equal before the law.
For the inheritance laws case, the court said the differential treatment amounted to discrimination against same-sex couples.
Justice of Appeal Thomas Au wrote in the written judgement: “[The prosecution’s] arguments in essence amount to saying that there are certain core rights and obligations that are attached and unique to traditional opposite-sex marriage to give it a special status.”
‘Of great general or public importance’
In the written judgements published on Monday, the Court of Appeal said the government had raised points of “great general or public importance,” and should therefore be heard at the Court of Final Appeal.
Regarding the issue of access to public housing, the Housing Authority had questioned whether the Basic Law conferred to heterosexual married couples the right to “exclusively apply” for public rental housing and Home Ownership Scheme flats.
For the inheritance case, the secretary for justice questioned whether excluding same-sex married couples from the definition of a valid marriage offered a “reasonable balance between societal benefits and individual rights.”
The Court of Appeal judges added that the questions regarding the inheritance case were especially of importance given the Court of Final Appeal’s recent verdict. In September, the top court handed a partial victory to the LGBTQ community, ruling in a case lodged by pro-democracy activist Jimmy Sham that the government has an obligation to provide an alternative legal framework that recognises same-sex relationships.
The decision, however, stopped short of granting full marriage rights to same-sex couples in the city.
The government was given two years to develop a mechanism that recognises same-sex relationships before the court could say the government was in breach of the law.
The co-founder of NGO Hong Kong Marriage Equality, Jerome Yau, said in response to HKFP: “The cases will now go to the top court for final adjudication, and let’s hope this will mark the end of this kind of litigation.”
Referring to the Court of Final Appeal’s ruling for Sham’s case, Yau said the government has until October 2025 to come up with a framework for the legal recognition of same-sex partnerships.
“As such, the sooner the government can come up with a comprehensive legislative framework, the better,” Yau said. “Fundamentally, the legal recognition of same-sex partnerships is about dignity, respect and mental wellbeing of same-sex couples. The most sensible way forward is to implement same-sex marriage.”
Years-long court battles
The decisions on Monday marked the latest step in years-long court battles for LGBTQ rights advocates, with the earliest case lodged as far back as 2018.
That year, Nick Infinger – who got married to his partner in Canada – filed a case against the Housing Authority challenging the Housing Authority’s refusal to consider his application for public housing because his same-sex union was not recognised.
In 2019, Edgar Ng, who married his partner Henry Li and purchased a flat under the government’s Home Ownership Scheme – lodged a judicial review to challenge the Housing Authority.
The challenge came after the authority said it excluded same-sex spouses of homeowners from the definition of “family members” and “spouses,” meaning Li was not allowed to co-own the flat with Ng unless he paid a premium.
Also in 2019, Ng filed a judicial review against the Secretary for Justice to challenge the fact that marriage provisions did not include those who entered same-sex marriages overseas. Ng was concerned that because of the lack of recognition, his Home Ownership Scheme flat would not be transferred to Li in the event of his death.
Ng passed away in December 2020, after which Li took over the cases.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Activists have often criticised Hong Kong’s limited rights and protection for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.
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