The Hong Kong Court of Appeal has upheld a constitutional challenge to the policy of the Hong Kong Housing Authority which excludes same-sex couples from eligibility for subsidised public rental housing units as “ordinary families”.
The applicant (Mr Infinger) married his husband in Canada and subsequently applied to the Housing Authority for a shared housing unit under the “Ordinary Families” policy.
The Authority determined that the couple were ineligible to share a subsidised housing unit together as a family because they were of the same sex. Only married, opposite sex couples were eligible. The Authority refused to register Mr Infinger’s application or put him on the waiting list.
According to the Authority, Mr Infinger was only eligible to apply as a “non-elderly one-person applicant”, meaning he would not be able to reside with his husband and would likely also wait much longer for a one person unit.
The applicant challenged the Authority’s decisions and the policy in judicial review.
Court of First Instance
The Hon Mr Justice Chow allowed Mr Infinger’s judicial review challenge:  1 HKLRD 1188.
Chow J held that the Authority’s policy discriminated against gay and lesbian couples on the basis of sexual orientation, breaching the constitutional protection of equality before the law and the prohibition of discrimination enshrined in Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (s.8 of Cap. 383).
He also rejected the Authority’s argument that excluding same sex couples was a fair and rational way to allocate highly scarce public resource in order to support “traditional” families.
Court of Appeal
The Housing Authority appealed to the Court of Appeal, arguing in summary that:
(1) The right to equality before the law did not apply because the case related to social welfare benefits, and was therefore governed exclusively by Article 36 of the Basic Law (§72).
(2) Married same sex couples were not comparable to married opposite sex couples, and there was accordingly no discrimination (§94).
(3) The difference in treatment was justified to protect “traditional” families (§§122, 142-143, 147-151).
The Court of Appeal (Hon Poon CJHC, Hon Au and Hon Barma JJA) rejected each of the Authority’s arguments:
(1) The right to equality and non-discrimination in Article 25 of the Basic Law and Article 22 of the Bill of Rights was engaged. Extending subsidised housing units to married same sex couples would not affect the pre-existing social welfare entitlements of married opposite sex couples, who continued to be free to apply (§72).
There being no impairment of the welfare rights of others under Article 36 of the Basic Law, there was no conflict with the application of equality rights under Article 25 of the Basic Law or Article 22 of the Bill of Rights (§79). The Authority was also wrong in its argument that extending public housing benefits to same sex couples would in any way undermine the right to marry enjoyed by opposite sex couples under Article 37 of the Basic Law (§90).
(2) On comparability, it was right a person claiming to have been discriminated against had to show that a valid comparison could be drawn between himself and the person with whom he sought to compare himself. However it was illogical and erroneous to try to test comparability in isolation (§96). The proper approach was to look at the justification proffered and to ask whether there was enough of a difference between the complainant (here, a married same sex couple) and the comparator (married opposite sex couples) to justify the difference in treatment (§98).
The Court further observed that, in the context of shared public housing in particular, same sex couples who met the financial eligibility criteria were just as needy as their opposite sex counterparts, and they were also equally deserving of the opportunity to live together under one roof (§98).
(3) On justification, the Court rejected the Authority’s contention that the applicable standard or review was the lower ‘manifestly without reasonable foundation’ test (§§130, 134).
The Authority was not able to show that the less favourable treatment accorded to gay and lesbian couples was necessary, still less that a fair balance had been struck (§162). On the one hand, the policy had a heavy impact on same sex couples, who were entirely excluded from access to shared public housing (§154). On the other hand, there was no evidence that extending that benefit to them would have any or any significant impact on opposite sex couples, for example on the waiting time they could expect to experience (§§153-154). The Authority’s policy, and the refusal to permit Mr Infinger to apply for a shared public housing unit, was accordingly disproportionate and unconstitutional.
The Authority’s appeal was dismissed.
The judgment can be viewed here.