An earlier court decision that would have given same-sex couples housing rights through a homeownership program was unsuccessfully appealed by the Justice Department.
Now, same-sex couples must submit separate applications for public housing, which necessitates a lengthy waiting period.
An appeals court affirmed two decisions in favor of same-sex couples in Hong Kong receiving housing subsidies, finding the government’s practices to be both discriminatory and unconstitutional.
The government’s claim that allowing homosexual persons to register for housing as married couples would threaten the status of their opposite-sex counterparts was rejected by the appeals court on Tuesday. The court noted that conventional marriage does not grant the latter unique rights and benefits.
The court argued that the legislation has never guaranteed that people can rent or buy apartments within a set period of time in response to the government’s argument that putting same-sex couples on the market will increase the wait time for residences.
The judge’s decision to let same-sex couples to apply for public housing and the ability to live together in subsidised apartments under the Home Ownership Programme was overturned after an appeal by the Department of Justice (HOS).
First Instance Court After being elevated to appellate status, Judge Anderson Chow Ka-Ming first prevailed over long-time resident Nick Infringer in 2020, claiming that the housing authority had wrongfully prohibited her and her husband from renting an apartment in public housing.
The next year, Chow granted the homosexual pair Henry Lee Yoo-hoo and Edgar Ng Hon-lam another court review and deemed the authority’s decision to forbid them from sharing a HOS apartment as oppressively unjust.
Now, same-sex couples must submit separate applications for public housing, which necessitates a lengthy waiting period. They are unable to incorporate HOS flat renters or change their status to joint tenants without paying the charge.
The 102-page judgement was given by Mr. Justice Thomas Au Hing-cheung on behalf of the three-judge panel on Tuesday. He stated that the disparate treatment in question was actually “a kind of targeted and direct discrimination” and required better justification.
Because the requirement is one that same-sex couples can never achieve, he said that differential treatment in current cases is a more severe kind of indirect discrimination than in other situations.
According to the authority’s legal advice, putting same-sex couples up against heterosexuals for housing would deprive them of already limited housing options.
Nonetheless, the AU insisted that the change would not impair the rights granted to conventional couples.
He said that there is no assurance on the typical waiting period for public rental apartments under the Basic Law, the city’s miniature constitution.
The judge disregarded the claim that relaxing current HOS restrictions would reduce the number of subsidized apartments accessible to traditional households as hypothetical.
High Court Chief Justice Jeremy Poon Shuichi and Appeals Judge Aric Barman both agreed with the AU’s conclusion.
In spite of his gratitude for the decision, Lee expressed his heartbreak at being separated from his boyfriend Ng, who took his own life in December 2020 after suffering from depression for years.
This court case has been ongoing for more than four years. I truly hope that, after giving the subject some deliberation, the Housing Authority won’t appeal and will allow Edgar to live in peace once and for all, Lee said in a statement.
The couple’s legal counsel, Daly & Associates, said in the same statement that the government’s anti-Gay laws had resulted in “oppressive legal and financial injustice” for the LGBT community.
The right to be free from discrimination based on sexual orientation is among core human rights, the company urged the government and other public bodies to uphold it. “
Hong Kong’s law does not permit same-sex marriage as a result of previous judicial challenges, although it does recognize the relationship to some extent in other contexts, such as applications for spousal visas and tax declarations.
The government was earlier ordered by the Court of Final Appeal to establish an official framework for recognizing same-sex partnerships within two years, including statutes defining the “basic rights” of such couples.
The decision may herald a significant change in LGBT rights, but the LGBT community is unsure if the proposed reforms would genuinely solve all of their issues.
Moreover, it urged the government to collaborate with key players in the community to put policies that would benefit the area into effect.
The government should proactively collaborate with stakeholders to develop a comprehensive framework for recognizing these partnerships rather than protracting needless and expensive litigation and treating the matter piecemeal.
A gender studies associate professor from a Chinese institution, Suen You-tung, recommended the housing authorities not to appeal the matter.
“It was Henry and Edgar’s desire to be allowed to occupy their home legitimately. Edgar has now died away and is no longer allowed to remain in the house due to a four-year legal fight, “says he.
I kindly request that the Housing Authority not take this case further on appeal.
Suen cited the court decision from last month that compelled the government to establish a formal framework for recognizing same-sex relationships as evidence that it had been “again and again” demonstrated that discrimination based on sexual orientation could not be justified.
According to him, “the government should assess the injustice that same-sex couples experience in society as a result of legal exclusion.”
A representative for Hong Kong Marriage Equality concurred, saying: “Gay marriage is without a doubt the greatest answer, and the government has the capacity to impose it if it wants to.”
