On 4 March 2020, the Hong Kong Court of First Instance gave judgment in Infinger, Nick v Hong Kong Housing Authority  HKCFI 329.
The Court allowed the application for judicial review against the Housing Authority’s (“HA”) 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”).
The applicant married his husband in Canada and subsequently applied to the HA for PRH as an “Ordinary Family”. The HA, applying the Spousal Policy, determined that the couple were ineligible to share a public housing unit together as a family because they were of the same sex. It refused to register his application or put him on the waiting list. The applicant would instead have had to apply for PRH as a “non-elderly one-person applicant”, which meant inter alia that he would not be able to reside with his husband in the PRH eventually granted. The applicant challenged the HA’s decisions and the Spousal Policy.
The mainstay of the challenge was 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, and at common law.
The CFI’s observations on the justification test
The CFI held that the Spousal Policy clearly accorded differential treatment to heterosexual and homosexual couples for the purpose of determining eligibility to apply for PRH as “Ordinary Families”. There was no relevant difference between the two groups having regard to the declared aim of the provision of PRH to address the housing needs of low-income families (§34).
The main issue was therefore whether such differential treatment was justified, and the CFI made several observations on important points of principle in this regard.
First, in response to the HA’s arguments that competition for PRH is a zero-sum contest, the CFI observed that the limited nature of public resources could not carry significant weight, since this was normally the case where the conferment of benefits amongst different groups was involved. The court must still consider whether the exclusion infringes the “core right to equality”, with the scarcity of public resources being taken into account in the overall proportionality assessment (§42).
Second, the CFI rejected HA’s argument that less weighty justifications will be required in cases of indirect rather than direct discrimination (§45). It was observed that most cases that have come to the courts concerned indirect discrimination rather than direct discrimination, yet, in the Court’s opinion, the vice is the same.
Third, the CFI held that the appropriate standard of review should be “somewhere in the middle of the continuous spectrum of reasonableness”, falling at a midpoint between the standard of “reasonable necessity” (at the high end) and the standard of “manifestly without reasonable foundation” (the low end). In arriving at this standard of review, the CFI took into account both the fact that the case concerns differential treatment on a suspect ground (namely sexual orientation) and the fact that the Spousal Policy concerned the allocation of highly scarce public resources which raises particularly acute socio-economic considerations. Notably, this appears to be the first time that a Hong Kong court had applied a standard of review lower than “reasonable necessity” to a case of sexual orientation discrimination.
The Family Aim
The HA originally attempted to justify the differential treatment on the basis of a need to uphold and protect the unique status of heterosexual marriage and the traditional form of family constituted thereby. However, the Court observed that the HA’s case later evolved in response to the Court of Final Appeal’s rejection of a similar justification in Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127.
The HA’s justification was formulated along the following lines: the Spousal Policy served the aim of a fair and rational allocation of highly scarce, zero-sum PRH resources by drawing a differential line on the basis of supporting the formation of traditional families with regard to their housing needs, including by protecting or prioritizing PRH supply to heterosexual unmarried couples whose plans to marry or have children may be influenced by housing availability (the “Family Aim”) (§37).
The CFI found that the Family Aim was a legitimate aim, following Leung Chun Kwong on this issue (§41 and 51(1)). The CFI also found that the Spousal Policy was rationally connected to the Family Aim, since excluding gay and lesbian couples altogether 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 (§51(2)).
However, the CFI found that the Spousal Policy was not a necessary or proportionate means of achieving the Family Aim, and that the HA had failed to strike a fair balance (§51(3)-(4)). The Court observed that there was “a dearth of evidence” on the impact of the differential treatment under the Spousal Policy on the advancement of the Family Aim, and in particular no or no sufficient materials to conclude that the Spousal Policy made any “significant or real difference” to the overall availability of PRH to traditional families. The CFI added that it would have reached the same conclusion even if the standard of review should have been that of “manifestly without reasonable foundation”.
The Administrative Effectiveness Aim
The HA also argued that the Spousal Policy ensured administrative effectiveness and pointed in this regard to the “differing, complicated and rapidly evolving concepts of same-sex marriage and civil partnership/union across various foreign jurisdictions”.
The CFI rejected this argument altogether, stating inter alia that any cases of genuine difficulty can be investigated in accordance with the HA’s existing mechanism for opposite-sex marriages (§52).
The CFI further observed that generally it would require a “very strong and clear case” before a court would accept administrative efficiency as a justification for a discriminatory measure, particularly one that discriminates on suspect grounds such as sexual orientation (§53).
The CFI ultimately concluded that the differential treatment under the Spousal Policy was unjustified (§54). The application for judicial review was therefore allowed with costs to the applicant.
The Spousal Policy was declared to be unconstitutional and unlawful, and the HA’s decisions to refuse the applicant’s application for PRH as an “Ordinary Family” were quashed and remitted for fresh consideration.
Tim Parker of Blackstone Chambers and Geoffrey Yeung of Denis Chang’s Chambers acted for the applicant.