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. Photo: GovHK.
The Court of Final Appeal handed down the verdicts on Tuesday, marking the end of years-long court battles waged by LGBTQ activists as far back as 2018.
The verdicts 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.”
The public housing review was lodged by Nick Infinger in 2018, who married his partner in Canada and filed the challenge after the Housing Authority refused to consider his public housing application. 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 passed away in 2020.
Henry Li (left) and Edgar Ng. File photo: Henry Li, YouTube video screenshot.
The third case – also lodged by Ng, and now taken over by Li – revolved around 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, government has sought to challenge those verdicts by appealing against lower court decisions.
Court battles
Activists have long criticised Hong Kong’s limited rights and protections for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.
A rainbow flag. File photo: Robert Midgley/No 10 Downing Street.
Hong Kong does not recognise same-sex couples who got 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 the LGBTQ community from discrimination in employment, the provision of goods and services, or from hate speech. Equal marriage remains illegal, although a 2023 survey showed that 60 per cent of Hongkongers support it.
