Hong Kong’s top court affirms same-sex married couples’ housing and inheritance rights in landmark decision

Hong Kong has few legal protections for LGBTQ+ people

Originally published on Global Voices

This report was written by Hillary Leung and published in Hong Kong Free Press on November 26, 2024. The following edited version is published as part of a content partnership agreement.

Hong Kong’s top court has ruled in favour of same-sex married couples’ housing and inheritance rights, handing a landmark victory to the city’s LGBTQ+ community following government appeals against previous court rulings.

The Court of Final Appeal handed down the verdicts on Tuesday, November 26, 2024, marking the end of years-long court battles waged by LGBTQ+ activists as far back as 2018.

The verdicts — all reached unanimously by a panel of five judges — encompassed three separate judicial reviews, a legal procedure that calls on the Court of First Instance to examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.

Two of the cases involve a challenge of the government’s Public Rental Housing Scheme and the Home Ownership Scheme, which exclude same-sex partners from its definition of “ordinary families” and “spouses.”

Nick Infinger, who lodged a review of the government’s housing policy after the Housing Authority rejected his public housing application with his same-sex partner, addressed reporters outside the court on Tuesday. He said in Cantonese:

I’ve been fighting for LGBTQ+ rights for over 10 years. Finally, there is something to show for it. The court’s verdict today can be seen as an affirmation of same-sex couples’ love and [their right to] live together. This is very important.

Jerome Yau, the co-founder of NGO Hong Kong Marriage Equality, said the court had made it “very clear” that there was no difference between same-sex marriage and heterosexual marriage. He added that the verdicts showed that discrimination on the grounds of sexual orientation was a violation of human dignity. Yau said:

So I think the next question is, if they are the same, why we should treat them differently? Let’s hope the government will take note of the judgement and finally do their work and come up with something comprehensive… the best solution is marriage equality.

Legal challenges

Infinger, who married his partner in Canada, launched his legal challenge in 2018. The Home Ownership Scheme review was filed by Edgar Ng after he was told he needed to pay a premium in order for his same-sex partner, Henry Li, to co-own the flat with him. Li took over the challenge after Ng died by suicide in 2020.

The third case — also lodged by Ng, and now taken over by Li — involved inheritance laws, which state that only those in a “valid marriage” can inherit the property of their partner if they pass away without a will. Same-sex couples are excluded.

In all three cases, the Court of First Instance sided with the LGBTQ+ activists. In 2020 and 2021, the court ruled in favour of same-sex couples who got married overseas, stating they should have equal access to the city’s public housing under the Public Rental Housing Scheme and Home Ownership Scheme, as well as the same inheritance rights as heterosexual couples.

Over the years, however, the government has sought to challenge those verdicts by appealing against lower court decisions.

During an October hearing, the Housing Authority argued that its policies were intended to support the government’s aim of population growth by encouraging procreation. A lawyer representing the housing body said opposite-sex couples had a “greater capability of procreation” than same-sex couples.

In their judgement handed down on Tuesday, the Court of Final Appeal judges rejected this argument, saying the authority’s “overriding objective” was to meet the housing needs of low-income people.

The judges added that the Housing Authority had also failed to consider that same-sex couples could adopt children or have children by “artificial” means.

Court battles

Activists have long criticised Hong Kong’s limited rights and protections for LGBTQ+ people, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.

Hong Kong does not recognise same-sex couples who get married overseas. Last September, the top court handed a partial victory to the LGBTQ+ community, ruling in a case lodged by pro-democracy activist Jimmy Sham that the government has an obligation to provide an alternative legal framework that recognises same-sex relationships.

The decision, however, stopped short of granting full marriage rights to same-sex couples in the city.

The government was given two years to develop a mechanism that recognises same-sex relationships before the court could say the government was in breach of the law.

During the hearing regarding the inheritance law judicial review, prosecution lawyer Monica Carss-Frisk said it was not appropriate for the government to change the definition of marriage in the context of inheritance laws until that framework was decided on. “Piecemeal” amendments would be “highly undesirable” as inconsistencies could cause confusion, she said.

Whilst same-sex sexual activity was legalised in 1991, Hong Kong has no laws to protect LGBTQ+ people from discrimination in employment, the provision of goods and services, or hate speech. Equal marriage remains illegal, although a 2023 survey showed that 60 percent of Hongkongers support it.

Written by Hong Kong Free Press