Introduction

On 4 March 2020, the Hong Kong Court of First Instance (“CFI”) allowed a judicial review application and made a declaration that the Hong Kong Housing Authority (“HA”)’s policy to exclude same-sex couples from eligibility to apply for Public Rental Housing (“PRH”) as ordinary families under the general application category (the “Spousal Policy”) is unlawful and unconstitutional. This controversial court case stirs up debate over same-sex couples’ right to apply for public housing in Hong Kong.

Background

A man and his same-sex partner, both permanent residents of Hong Kong, married in an overseas jurisdiction that recognises same-sex marriage. Like many young couples, they struggled to find a home they could afford in Hong Kong. The man then applied for PRH as an ordinary family.  

According to Hong Kong’s public housing policy, the relationship between the applicant and family members in application for PRH as ordinary family must be either husband or wife, parent and child, grandparent and grandchild. In interpreting the terms “husband” and “wife”, HA adopted the dictionary definitions that “husband” means “a married man especially in relation to his wife” and “wife” means “a married woman especially in relation to her husband”.

In reliance on the dictionary definitions, HA determined that the relationship between the man as the applicant and his partner falls outside the meaning of husband and wife. HA therefore refused to register the man’s application or put his name on the waiting list.

Aggrieved by HA’s decisions, the man launched a judicial review alleging that the Spousal Policy constitutes unjustified discrimination on the ground of sexual orientation and therefore violates the equality guarantees in the Basic Law and the Hong Kong Bill of Rights.

Rationale

The doctrine of precedent has it that a court is bound to follow the ratio decidendi of a superior court’s decisions and often its own previous decisions. In the present case, the CFI acknowledged that it would have to take into consideration leading authorities determined by the Hong Kong Court of Final Appeal (“CFA”) on the issue of discrimination based on sexual orientation, namely, QT v Director of Immigration [2018] 21 HKCFAR 324 (the “QT case”) and Leung Chun Kwong v Secretary for Civil Service [2019] 22 HKCFAR 127 (the “Leung case”). The facts of which are discussed below in brief.

In the QT case, the Director of Immigration (“DOI”) did not recognise a married same-sex couple’s relationship for the purpose of his Dependant Visa Policy. The couple applied for judicial review, the judicial review was unsuccessful before the CFI but the Court of Appeal (“CA”) reversed the CFI decision. The CFA dismissed DOI’s appeal and held that there was no rational connection between the aims of attracting foreign talent and maintaining strict immigration control.

The Leung case again concerned a judicial review challenge by a married same-sex couple against the decisions that the partner could not be regarded as spouse for the purposes of claiming civil service benefits (the “Benefits Decision”) or electing for joint tax assessment (the “Tax Decision”). The CFI held that the refusal to spousal benefits was unjustifiable, while the CA affirmed the constitutionality of both the Benefits Decision and the Tax Decision. Upon further appeal by the applicant to the CFA, the CFA did not agree that heterosexual marriage would be undermined by the extension of the employment and tax benefits. Accordingly, the differential treatment constitutes an unlawful discrimination when neither the Benefits Decision nor the Tax Decision is rationally connected to the legitimate aim.

Following the legal principles laid down in the QT case and the Leung case, in every alleged case of discrimination, the court would first determine whether there is any differential treatment on a prohibited ground. In the present case, the Spousal Policy has treated heterosexual couples and homosexual couples differently for the purpose of determining eligibility to apply for PRH as ordinary families. Such differential treatment would be unlawful unless it can pass the 4-step justification test:

1.        Does the differential treatment pursue a legitimate aim;

2.        Is the differential treatment rationally connected to that legitimate aim;

3.        Is the differential treatment no more than necessary to accomplish the legitimate aim;

4.        Has a reasonable balance struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights.

In relation to the 1^st step of the justification test, the differential treatment served a legitimate aim of fair and rational allocation of the scarce PRH resources and that some lines must be drawn on the basis of supporting the formation of traditional families with regard to their housing needs (the “Family Aim”).

In relation to the 2^nd step of the justification test, since excluding same-sex married couples would enlarge the pool of available PRH units to opposite-sex married couples, and housing availability could have a positive impact on heterosexual couples’ plans to marry or have children, the differential treatment under the Spousal Policy may be regarded as being rationally connected to the Family Aim.

In relation to the 3^rd step of the justification test, as there was no sufficient materials to conclude that the Spousal Policy could make any significant or real difference to the overall availability of PRH to traditional families constituted by heterosexual marriage, or unmarried couples intending to form traditional families who are in need of such form of housing, the differential treatment under the Spousal Policy could not be regarded as a proportionate means of achieving the Family Aim.

In relation to the 4^th step of the justification test, for the same reason above, HA failed to strike a fair balance in that the differential treatment under the Spousal Policy resulted in an unacceptably harsh burden on same-sex couples lawfully married overseas.

Accordingly, the 4-step justification test was not passed and the differential treatment under the Spousal Policy was unjustified. The Spousal Policy to exclude married same-sex couples from eligibility to apply for PRH as ordinary families was declared unlawful and unconstitutional. HA’s decisions were quashed and remitted for fresh consideration.

Conclusion

This is a significant decision, the impact of which will no doubt have greater reach than just in respect of same-sex couples’ right to apply for public housing in Hong Kong. The extension of public housing to same-sex couples in this case would likely lead to similar extensions in other areas such as social welfare, employment and pension benefits etc. Amidst growing concern over the issue of same-sex couples’ rights, our society may need to strike a balance against the implications of opening the floodgates to other claims in view of the scarce resources.