Gov’t argues Hong Kong public housing for ‘traditional families’ as fight for same-sex married couples’ rights reaches top court
Hong Kong Free Press
Hong Kong’s public housing policy was aimed at supporting “traditional families founded on opposite-sex marriage,” a government lawyer has told the city’s top court in an appeal over housing rights for same-sex couples married overseas.
Heterosexual couples in Hong Kong had an “exclusive” right to apply for the Public Rental Housing scheme (PRH) and purchase flats through the Home Ownership Scheme (HOS) through the spousal category, King’s Counsel Monica Carss-Frisk argued at the Court of Final Appeal (CFA) on Friday on behalf of the Housing Authority.
Exclusivity was one of six grounds the Housing Authority was seeking to rely on to overturn two lower court rulings that the spousal policies of the city’s public housing schemes were unlawful and unconstitutional. The policies constituted differential treatment based on sexual orientation, which was not justified and amounted to unlawful discrimination, the Court of First Instance earlier ruled.
On Friday, Carss-Frisk told a five-judge panel led by Chief Justice Andrew Cheung that the Hong Kong government’s public housing policy was aligned with its objective of solving the city’s imminent demographic challenges, such as an ageing population.
“The overarching aim is to support traditional families founded on opposite sex marriage,” she said.
The Housing Authority had argued in the lower court that the differential treatment in the PRH policy was intended to pursue a “family aim.” That meant protecting or prioritising the supply of PRH units or HOS flats to opposite-sex couples whose plans to marry or have children may be influenced by housing availability.
The current appeal stemmed from two separate judicial reviews filed in 2018 and 2019, respectively. Nick Infinger launched his legal bid in 2018 after his application for public rental housing was declined by the government. The authorities had said his relationship with his partner, whom he married in Canada in 2018, fell outside the ordinary understanding of “husband” and “wife” as adopted by the Housing Authority.
See also: LGBTQ rights in Hong Kong – breakthroughs and bitter court battles against discriminatory laws
The other judicial review was lodged in 2019 by Edgar Ng, who later took his own life in 2020. Ng had challenged the Housing Authority’s refusal to recognise same-sex spouses who married overseas as “spouses,” or other “family members” of subsidised flat owners. The appeal was taken over by Ng’s husband Henry Li following his death.
The Court of Appeal rejected the government’s appeal last October, but the Housing Authority was in February granted a chance to take its case to the apex court.
On Friday, the top court was also asked to consider whether homosexual couples were comparable to heterosexual couples in relation to the differential policies being challenged. The government lawyer said the Housing Authority had decided to align with and support the government objective of population growth, which would be achieved by natural procreation.
When asked by the chief justice to provide evidence showing that it was the government policy to have population growth achieved by natural creation, Carr-Frisk admitted there was no official reference to natural procreation. However, it was “entirely reasonable” to consider natural procreation as the “central way” and the “expected way” for most people to have a family, she said.
“It is justified by reference to… the inevitable greater capability of procreation ability of the opposite-sex couples… It is right and only realistic to have in mind it is going to be more complicated and expensive for same-sex couples to have children,” Carss-Frisk said.
Her argument was dismissed as “problematic and flawed” by the respondents’ lawyer, King’s Counsel Timothy Otty, who said the primary goal of the city’s housing policy was to address the housing need of the low-income population, rather than boosting population growth.
He went on to say that same-sex and heterosexual couples should be treated as similar or comparable, as they shared the same need for housing, the wish to live together, and the capability to enter a stable and committed relationship.
Otty also pointed to other types of public housing applicants under the “ordinary family” category, such as grandparent and grandchild, or unmarried siblings. He questioned why these people may benefit from the housing policy based on the government’s argument on increasing population growth, and same-sex couples could not.
Otty went on to criticise the Housing Authority’s arguments related to “reproductive capacity,” saying they imposed an “inappropriate stereotype” on homosexual couples, who could form families through artificial procreation and adoption.
Carss-Frisk argued that it was a “zero-sum” situation – that the “exclusive right” of heterosexual couples in accessing public housing would be diluted if same-sex couples were brought into the queue.
But the argument drew questions from the bench, with non-permanent judge Frank Stock asking whether the same result would happen if the government decided to expand the eligibility of other types of public housing applicants.
Permanent Judge Roberto Ribeiro also asked why the government representative did not see same-sex and heterosexual couples as being in the same queue. Waiting in the same queue was “a form of fair distribution,” he said.
“There is no zero-sum situation, it’s just their turn,” he said.
Otty echoed the judge’s comment and said that the right of opposite sex couples to access public housing would not be affected at all if same-sex couples joined the queue. The only adverse impact, at most, was an increase in waiting time, he said.
“There is nothing to show any entitlement to any waiting time,” he said.
The top court would reserve its judgement, the chief justice said.
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