Court upholds equal housing rights for gay couples

The Court of Appeal upheld a ruling that it is discriminatory and unconstitutional for the Housing Authority to bar tenants from registering their same-sex partner as family members of their public rental housing flats or subsidized flats, or becoming an eligible resident of those flats.

The authority earlier lost in two judicial reviews filed by two gay couples who were denied joint ownership of a subsidized flat and application to a public rental flat, as the Court of First Instance had said the authority's policies were "unlawful and unconstitutional."

The authority filed an appeal, which was dismissed yesterday.

Court of Appeal judges Jeremy Poon Shiu-chor, Aarif Barma and Thomas Au Hing-cheung said allowing same-sex couples to apply for a public flat will not affect the benefit of opposite-sex couples.

"The real effect of this, if any, is on the average waiting time of opposite-sex couples for the allocation of public rental housing units. However, the average waiting time is not a protected right under [the Basic Law]: there was never any guaranteed or specified average waiting time for opposite-sex couples for the allocation of public rental housing units before July 1, 1997, as a matter of policy or otherwise," the judges said.

"This is plain as the average waiting time is by its nature a variable which depends on the number of units available and the number of applicants at any particular time," they added.

The judges refuted the authority's claim that the current spousal policy of the Home Ownership Scheme can discourage a same-sex partner from purchasing a subsidized flat and lead to an increase in the number of available flats for opposite-sex couples, saying the claim was "red herring."

Granting joint ownership to same-sex couples will not affect heterosexual couples, as one person of a relevant same-sex is already an owner of a unit, they said.

"No question of any deprivation of the number of HOS units to be available to opposite-sex couples even arises," the judges said.

The Housing Authority said same-sex couples cannot enjoy the same treatment as heterosexual couples, as the current housing policy aims to promote childbirth, but the judges rejected it.

"The spousal policies draw no distinction between opposite-sex couples who are unable or are unwilling to have children. Nor is there any differentiation between same-sex couples who wish to, and are able to form a family with children, and those who do not," they said.

The Housing Authority said it is studying the judgment and will take appropriate action.

Henry Li Yik-ho, who filed the judicial review with his late husband Edgar Ng Hon-lam after they were denied joint ownership of a subsidized flat, said he is pleased with the judgment.

"What Edgar and I wanted was simply to be able to live together in our own home lawfully... sadly for us, it has been cruelly denied by the Housing Authority on the basis of sexual orientation," he said.

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."

"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," it said.

Executive Council convener Regina Ip Lau Suk-yee welcomed the ruling and urged the administration to set up an alternative framework for the recognition of same-sex couples within three years.

wallis.wang@singtaonewscorp.com