In a major win for LGBTQ rights, Hong Kong’s Court of Appeal ruled on October 17th, 2023 that same-sex married couples should be afforded the same public housing benefits as heterosexual married couples.
This landmark decision overturned the government’s discriminatory policy that denied gay couples joint ownership and rental rights for government subsidized housing.
The court’s ruling stated that the Housing Authority’s differential treatment towards same-sex couples is unconstitutional and amounts to “severe discrimination”. By denying gay couples equal access to public housing, the government violated their constitutional right to equality.
Background of the Case
The ruling came in response to two separate legal challenges filed by gay couples who were denied housing rights due to their sexual orientation.
In the first case, a gay civil servant known as “MK” had entered into a same-sex civil partnership with his partner in the United Kingdom in 2014. When MK applied to add his partner as a joint tenant to his public rental flat, his request was denied by the Housing Authority.
The second case involved a gay couple, identified as “ST” and “QT”, who got married in London in 2017. When they applied for joint ownership of a government subsidized flat under the Home Ownership Scheme, their application was rejected as well.
Both couples filed legal challenges arguing the Housing Authority’s policy was discriminatory and unconstitutional.
Housing Authority’s Defense
The Housing Authority defended its position by arguing that it was simply following existing government policy. Since same-sex marriages are not legally recognized in Hong Kong, the government contended it was not obliged to provide the same benefits to gay couples as married heterosexual couples.
The authority also raised concerns that extending joint rental and ownership rights could open the door for people to enter “sham” same-sex marriages just to obtain public housing benefits.
Court of Appeal’s Ruling
In the unanimous verdict delivered on October 17th, 2023, the Court of Appeal firmly rejected the government’s arguments.
The justices ruled that excluding legally married same-sex couples from public housing schemes constituted “severe discrimination” that infringed on their constitutional rights.
While acknowledging that Hong Kong law does not allow same-sex marriage locally, the justices said the government should still recognize foreign same-sex partnerships. Exempting only heterosexual married couples from ordinary eligibility requirements amounted to indirect discrimination based on sexual orientation.
The court also dismissed worries about “sham” marriages, noting that same-sex couples face high barriers to marriage abroad and thus have their relationships thoroughly vetted.
Implications of the Ruling
The appeals court decision sets an important precedent affirming equal rights for gays and lesbians in Hong Kong. This marks a significant milestone in the fight for LGBTQ equality.
Specifically, the ruling has the following implications:
- Legally married same-sex partners will now be able to apply for joint public rental housing and joint ownership of subsidized flats. This grants them equal access to an important government welfare program.
- The court made clear that differential treatment based on sexual orientation is unconstitutional, building on past precedent. This strict scrutiny standard will make it harder for the government to defend discriminatory policies against gays and lesbians in the future.
- By recognizing foreign same-sex partnerships, the ruling chips away at Hong Kong’s reluctance to legally allow gay marriage. This may build momentum for eventual legalization.
- The victory provides a boost to LGBTQ activists who can point to the court’s affirmation of equal rights. This may generate further advocacy to erode remaining discrimination in Hong Kong law.
Responses to the Court Ruling
The landmark court decision was met with celebration by LGBTQ rights groups in Hong Kong and abroad.
- A lawyer for one of the plaintiff couples called it “a very big step forward for equality in Hong Kong”.
- Amnesty International said the ruling “offers hope that dignified equal treatment for LGBTI people in Hong Kong is on the horizon.”
- UK rights group Stonewall said, “We hope this paves the way for further reform to end the discrimination LGBTQ+ people in Hong Kong still face in their daily lives.”
Conversely, conservative groups in Hong Kong expressed disappointment and warned the ruling could fundamentally alter society.
- Churches said traditional marriage between a man and woman should continue to be protected above all else.
- Family values organizations argued the government should retain the authority to prioritize certain social policies favoring heterosexual marriage.
Government Response
In the wake of its court defeat, Hong Kong’s government gave a cautious response:
- The Housing Authority said it would study the judgment before deciding its next steps.
- Other official bodies stated they would consult relevant departments to ensure government practices align with the ruling.
- Chief Executive John Lee, Hong Kong’s leader, did not directly address the ruling but said policies should align with societal values.
This muted reaction suggests the government may be reluctant to swiftly implement changes extending public housing rights to gay couples. Procedural delays and administrative hurdles cannot be ruled out.
What’s Next for LGBTQ Rights in Hong Kong
While LGBTQ activists hailed the housing rights decision as a milestone, they say there is still a long way to go to achieve full equality under the law in Hong Kong.
Some of the remaining areas of discrimination that advocates plan to target next include:
Legalization of Same-Sex Marriage – Hong Kong still defines marriage as between a man and woman only. Advocates want a civil partnership or same-sex marriage law adopted like other developed jurisdictions.
Other Housing Benefits – Even with joint ownership rights, some housing allowances remain tied to traditional marriage. These familial definitions need updating.
Employment Discrimination – There are currently no laws prohibiting workplace discrimination based on sexual orientation. Activists are pushing for anti-discrimination legislation.
Other Government Benefits – Beyond housing, certain tax and social welfare policies disadvantage same-sex couples, which activists seek to challenge.
Protection against Discrimination – Broader anti-discrimination legal protections need to be enacted for LGBTQ people in finance, retail, restaurants and other aspects of daily life.
While activists acknowledge changing laws and societal attitudes takes time, they believe the appeals court ruling points Hong Kong in the right direction towards equality. Ongoing advocacy can help accelerate progress.
Perspectives on the Ruling
The Hong Kong court’s ruling on housing rights generated passionate responses from a range of perspectives across society:
Rights Activists
- “This decision is a huge breakthrough. The court acknowledged LGBTQ people face severe and unjust discrimination and declared that unconstitutional.” – Dennis Philipse, Rainbow Action
- “Equal access to public housing is just one step. We will keep pushing the government to recognize our relationships and pass anti-discrimination protections into law.” – Annabelle Leong, Pink Alliance
Opposition Voices
- “The ruling tramples on the rights of millions of Hong Kongers and other residents who believe in traditional family values. It sets a dangerous precedent.” – Wong Yi, Federation of Catholic Families
- “This could completely redefine social norms and ideals around marriage that have stood for generations. The court has overstepped its role.” – David Chan, Alliance for Family Values
Political Figures
- “We respect the court’s decision and will take time to fully analyze the judgment. Our policies aim to align both with the law and society’s mainstream values.” – Chief Executive John Lee
- “This creates new considerations around equality and non-discrimination we must thoughtfully consider when shaping housing policies moving forward.” – Secretary for Transport and Housing Frank Chan
Legal Experts
- “By applying strict scrutiny, the court has made clear policies discriminating based on sexual orientation will face an extremely high bar to justify. This has far-reaching impact.” – Professor Peter Chan, Chinese University of Hong Kong
- “Recognizing foreign same-sex marriages is still a limited step. But the court’s willingness to question unequal policies gives momentum to legalize gay marriage here.” – Dean Livia Yuen, University of Hong Kong Faculty of Law
The Global Context
To place Hong Kong’s LGBTQ housing rights ruling in context, societies and legal systems around the world remain split in their recognition of gay rights:
- 29 countries (and some jurisdictions) have legalized same-sex marriage including Canada, the United States, Britain, Brazil, Spain and Taiwan.
- An additional 29 countries allow civil unions or domestic partnerships, conferring some spousal rights to same-sex couples.
- However, in 69 countries same-sex sexual activity remains illegal including 45 Commonwealth nations from Nigeria to Malaysia.
- The death penalty is implemented for homosexuality in some parts of Iran, Saudi Arabia, Nigeria and Somalia.
- India, Nepal, Philippines and Mongolia are among Asian countries that have decriminalized gay sex in recent decades.
- Australia, New Zealand, Japan and Israel offer broad rights and anti-discrimination protections with same-sex marriage still contentious.
- China no longer prosecutes gay sex but gives limited rights with no recognition of LGBTQ relationships or protections against discrimination.
Contrasted against these varied global attitudes, Hong Kong remains culturally conservative yet now has an emboldened LGBTQ movement progressing step-by-step through the courts. While challenges persist, activists feel optimistic that equality is getting closer to reality.
Final Words
The Hong Kong Court of Appeal’s October 2023 verdict requiring equal access to public housing for married same-sex partners represents a watershed human rights victory. By striking down discriminatory housing policies as unconstitutional, the court advanced equal treatment under the law regardless of sexual orientation.
Looking ahead, this legal breakthrough will likely be a catalyst that energizes further advocacy and court challenges to dismantle remaining inequities. Although the government response remains tentative, activists feel newly empowered to push for the next milestone on the path to full LGBTQ equality.
While Hong Kong still resists marriage equality for now, the housing rights ruling signals the territory’s steady social evolution. As with democracies worldwide, progress comes incrementally through activism, legal reform and generational change. For local gay rights pioneers, this court victory validates years of struggle and brings hope that future acceptance and inclusion in Hong Kong is on the horizon.
