THE top court upheld earlier rulings that favoured subsidised housing benefits and equal inheritance rights for same-sex married couples, in a landmark victory for the city’s LGBTQ+ community.
The Court of Final Appeal’s dismissal of the government’s appeals yesterday ended some years-long legal battles over the differential treatment facing same-sex couples married overseas under Hong Kong’s Housing Authority policies and two inheritance laws.
The unanimous decisions are expected to have a far-reaching impact on the lives of same-sex couples, who have traditionally had fewer rights compared to their heterosexual counterparts in the global financial hub.
Chief Justice Andrew Cheung said in his judgement that exclusionary housing policies were argued to be beneficial to opposite-sex married couples because they increase the supply of subsidised housing for them and thereby support the institution of traditional families.
But Cheung said authorities failed to provide evidence showing the potential impact on opposite-sex couples if those policies were relaxed.
“The challenged policies cannot be justified,” he wrote.
On the inheritance laws, judges Roberto Ribeiro and Joseph Fok ruled in their written judgement that the disputed provisions are “discriminatory and unconstitutional”.
Hong Kong does not recognise same-sex marriage, prompting some couples to marry elsewhere.
Currently, the city only recognises same-sex marriage for certain purposes such as taxation, civil service benefits and dependent visas.
Many of the government’s concessions were won through legal challenges and the city has seen a growing social acceptance toward same-sex marriage.
In September last year, the top court ruled that the government should provide a framework for recognising same-sex partnerships.
In separate judgements handed down in 2020 and 2021, a lower court had ruled that the housing policies involved in yesterday’s cases violated the constitutional right to equality, and that excluding same-sex spouses from inheritance law benefits constituted unlawful discrimination.
The government had challenged these decisions at the Court of Appeal but subsequently lost last October. It then took the cases to the top court.
Nick Infinger, who first launched a judicial review against the Housing Authority in 2018, told reporters that yesterday’s rulings “acknowledged same-sex couples can love each other and deserve to live together”.
“This is not only fighting for me, and my partner – this is fighting for all the same-sex couples in Hong Kong,” he said outside the court building.
The top court’s rulings also concluded a long legal journey taken by Henry Li and his late partner, Edgar Ng.
After they married in Britain in 2017, Ng bought a subsidised flat as his matrimonial home with Li.
The Housing Authority, however, said Li could not be added as an authorised occupant of the flat in the capacity of Ng’s family member because same-sex married partners do not fall within its definition of “spouse”.
Ng was also concerned that if he died intestate, his properties would not be passed to Li, the court heard.
Ng died in 2020 after suffering years of depression.
After the rulings, Li posted a message on his Facebook page, saying that although he has lived in pain in the absence of Ng, he has not given up his husband’s aspiration to pursue equality.
“Without you by my side, the arguments of the government and the Housing Authority in the cases seemed to become more cruel, causing me even more distress,” he wrote to Ng in the message.
“Our cases have finally reached their conclusion.” — AP
