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The Court of Appeal on Tuesday upheld its original verdicts that ruled the Housing Authority constituted illegal discrimination in rejecting same-sex couples who married overseas under the current public rental housing and subsidized housing schemes.
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This came as the authority lost in two judicial reviews filed by two gay couples and appealed against both cases.
The first case was filed by Nick Infinger who married his husband in Canada in 2018 and returned to apply for a public rental housing unit in the ordinary families category. Yet, he and his husband were denied the application despite fulfilling the income requirement as the authority ruled they didn’t satisfy the definition of a married couple.
The second case was filed by late Edgar Ng Hon-lam and his husband Li Yik-ho who got married in the UK in 2017. They filed a green form in hope of buying a Home Ownership Scheme (HOS) flat but the authority said same-sex couples didn’t fall within the definition of “family members” and “spouses.”
The High Court’s Court of First Instance in 2020 ruled that the policies constituted discrimination and were unconstitutional.
In the latest judgment released by the Court of Appeal, Chief Judge Jeremy Poon Shiu-chor, Justices of Appeal Aarif Barma and Thomas Au Hing-cheung rejected the appeals filed by the authority.
The three judges said the two cases do not affect the right for opposite-sex couples to enjoy social welfare.
“Opposite-sex couples’ exclusive eligibility rights to apply for public rental housing and to apply for being added as an authorized occupant or becoming a joint tenant of a HOS flat without the payment of a premium are guaranteed and protected constitutionally.”
They also hit back at the authority saying that differential treatment of the same- and opposite-sex couples was to pursue the family aim of supporting traditional family formations by opposite-sex marriage.
“It is extremely far-fetched to suggest that opposite-sex couples would be encouraged to marry or have children by the knowledge or realization that same-sex couples are prevented or deterred from applying to purchase HOS flats.”
They added there was never any guaranteed or specified average waiting time for opposite-sex couples for the allocation of public rental housing, saying it is a variable which depends on the number of units available and the number of applicants at any particular time.
They also agreed that the differential treatment under the spousal policies is based on the ground of sexual orientation, “which is discriminatory in nature and must be justified to be lawful.”
The authority was ordered to pay the legal costs.
Hong Kong Marriage Equality said the judgment made it clear that discrimination and unequal treatment on the ground of sexual orientation has no place in public policy decisions.
It said: “Instead of prolonging unnecessary and expensive litigation and approaching the issue of recognizing same-sex partnerships with a piecemeal approach, the government should proactively work with stakeholders to come up with a comprehensive framework to recognize these partnerships.”
Daly & Associates, the firm that represented Ng and Li, said discrimination not only inflicts oppressive legal and financial injustices on LGBT+ people, but also causes them irreversible emotional damage.
The firm also strongly urged the government and other public authorities to take timely, proactive actions to respect fundamental human rights, including the right to freedom from discrimination on the ground of sexual orientation.
Li said: “While I am grateful for today’s judgment, it also reminds me painfully that Edgar is no longer here to see this. We could no longer live together for which Edgar had fought so hard.
“It has been more than 4 years since this court case started. I sincerely hope that upon thoughtful consideration, the Housing Authority would not appeal and let this matter rest, and at last let Edgar rest in peace.”
File photo.
