The government’s policy of denying same-sex couples the opportunity to apply for public rental housing as “ordinary families” is unlawful and unconstitutional, the High Court ruled today.
The legal challenge to the practice was mounted by Nick Infinger, a Hong Kong permanent resident who married his male partner, also a permanent resident, in Canada in 2018, RTHK reports.
The Housing Authority had rejected the couple’s application for a rental unit, unnecessarily twisting the knife with a quote from the Oxford English Dictionary’s definition of “husband,” which states “a married man especially in relation to his wife.”
In a judicial review of the denial, Infinger’s lawyers argued that without the “ordinary family” — which the couple would otherwise be eligible for — they would have to wait years longer to obtain one of the coveted government flats.
The authority’s lawyer, meanwhile, said the government entity was trying to protect the institution of so-called “traditional” marriage (huh, didn’t realize it was also the Marriage Authority), and argued that specific requirements for applicants were necessary due to the limited supply of flats available.
But Judge Anderson Chow wasn’t buying that rationale, saying that the criteria appeared arbitrary.
“Other than the fact that the applicant’s marriage with the partner is between two persons of the same sex, the Housing Authority has not been able to point to any difference between their marriage and other foreign opposite-sex marriages which it would accept for the purpose meeting the eligibility criterion,” Chow ruled.
He also rejected the suggestion that the authority would have difficulty in determining whether same-sex marriages were genuine.
“I am unable to see why it would be more administratively inconvenient or difficult to verify the validity or genuineness of a foreign same-sex marriage when compared to a foreign opposite-sex marriage,” he said.
As such, Chow ruled that the failure to categorize same-sex couples as “ordinary families” breached the Basic Law’s Article 25, which guarantees equal protection before the law, as well as Article 22 of the Bill of Rights, which protects against discrimination.
Chow also ordered the Housing Authority to reconsider Infinger’s application.
While Hong Kong does not allow same sex marriages itself, thanks to other recent court cases, it is increasingly recognizing ones officiated abroad.
In 2018, a British lesbian identified as QT won the right to live and work in Hong Kong with her partner in a landmark ruling that recognized same-sex marriages from other jurisdictions in granting spousal visas.
Last year, the city’s highest court also ruled against the Civil Service Bureau and the Inland Revenue Department in favor of a gay couple seeking civil servants’ spousal benefits and the right to file joint tax returns.
