The Hong Kong High Court on Wed (4 Mar) declared the city’s government policy of denying same-sex couples legally married abroad the right to apply for public housing unlawful and unconstitutional.
In allowing permanent resident Nick Infinger’s judicial review on the Housing Authority’s decision to bar him and his husband from renting a public housing flat, Justice Anderson Chow Ka-ming said that the Authority had failed to “point to any difference between [the applicant’s] marriage and other foreign opposite-sex marriages” other than the orientations of the pair.
Mr Infinger married his husband in Canada, and had subsequently applied for public housing in Hong Kong under the category of “ordinary family” in Mar 2018.
However, the Authority’s restriction against same-sex couples applying for public housing would result in Mr Infinger only being eligible for non-elderly one-person flats.
The judge noted that the Authority’s decision to reject same-sex couples’ public housing applications was based on the government’s desire to meet the needs of “traditional” low-income families in the midst of a public housing shortage.
However, Justice Chow reasoned that there is “no reason to believe that low-income families constituted by same-sex couples have any lesser need for housing than low-income families constituted by opposite-sex couples without children”.
The Authority, said the judge, had also failed to provide the necessary data on the number of married same-sex couples who would apply for family public housing in the absence of its policy, or on how the overall public housing supply will be affected if the Authority relaxed the ban on same-sex couples’ applications.
“I am not satisfied that the differential treatment under the [policy] is a proportionate means of achieving the family aim,” said Justice Chow.
A Housing Authority spokesperson told South China Morning Post that it has received only one same-sex couple application — namely from Mr Infinger and his husband — to date, based on its records.
The spokesperson added that the Authority will “carefully study the judgement and take appropriate follow-up actions accordingly”.
The spokesperson also reiterated that the Authority’s decision to deny the application of Mr Infinger and his spouse was made on the dictionary definition of “husband and wife”.
In rejecting Mr Infinger and his husband’s application, the Housing Authority wrote in Sep 2018 that based on the Shorter Oxford English Dictionary, “the word “husband” means a married man especially in relation to his wife’, and ‘wife’ means ‘a married woman especially in relation to her husband‘”.
The Authority added that in order for applicants and their family members to be eligible to apply for public housing, the relationship between the applicant and family members “must be either husband or wife, parent and child, grandparent and grandchild”.
Anthony Chiu Kwok-wai, a member of the Authority’s subsidised housing committee, told SCMP that it is highly likely that the Authority would appeal against the High Court decision.
“There might be many more gay couples who previously did not show an interest who will apply for public housing, thus affecting the waiting time for family applicants,” said Mr Chiu.