Hong Kong Court rules in favor of homosexual couples inclusion in public housing policies News
Wpcpey, CC BY 3.0, via Wikimedia Commons
Hong Kong Court rules in favor of homosexual couples inclusion in public housing policies

The Hong Kong Court of Appeal unanimously dismissed two appeals from the Hong Kong Housing Authority (HA) Tuesday, which sought to uphold the constitutionality of excluding same-sex couples from enjoying the Public Rental Housing (PRH) policy and Home Ownership Scheme (HOS) as married couples.

Two applicants lodged a judicial review in 2020 against the HA’s decisions to refuse their applications made as an “ordinary family unit” under the PRH policy and HOS respectively. A lower court ruled in favor of the applicants in both cases stating that excluding same-sex couples from these policies is discriminatory and disproportionate.

The HA sought to challenge the prior rulings, claiming that allowing homosexual couples to apply for PRH in the ordinary families category will deprive heterosexual couples of social welfare rights as provided by Article 36 of the Basic Law. The government argued that the right to public housing is an exclusive right for married heterosexual couples. Thus, the inclusion of same-sex couples in “ordinary families” categories will diminish the right to social welfare protected by the Basic Law. The court dismissed this argument as allowing same-sex couples to apply as an ordinary family unit, would at most prolong the average waiting time.

The HA also claimed that opposite-sex couples are not comparable with homosexual couples. The government put forward that these housing policies aim to protect the need and right to raise a family with children. The court rejected this argument stating that procreative potential is irrelevant because the HA did not draw a distinction between couples that are unable or unwilling to give birth to children. On the other hand, homosexual couples could also lawfully form a family by artificial procreation, adoption or otherwise.

In addition, the court reaffirmed that homosexual and heterosexual couples have no material difference in considering whether the two couples are economically or financially in need of the provision of public housing. Regardless of their sexual orientations, they both share equivalent interdependent and interpersonal relationships, and their marriage shares the same characteristics of publicity and exclusivity.

Prior to this judgment, homosexual couples could only apply for PRH as a non-elderly one-person applicant. The HA has been committed to allocating housing units to ordinary families within 3 years. However, this commitment has explicitly excluded non-elderly one-person families’ applications.