Hong Kong’s top court extends housing and other rights to same-sex couples

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Hong Kong’s top court on Tuesday upheld a series of rulings granting housing and inheritance rights to same-sex couples, further extending legal protections for LGBTQ+ people in the Chinese territory despite government opposition.

In a unanimous judgment, the Court of Final Appeal (CFA) said “equality before the law is fundamental,” dismissing an attempt by the government to maintain discriminatory policies barring same-sex couples from applying for public housing or bequeathing certain properties to a same-sex spouse.

Chief Justice Andrew Cheung, who wrote the verdict, was particularly critical of an argument by the Housing Authority that public rental units should be restricted to opposite-sex applicants in order to support a national drive to boost the birth rate.

“The HA’s own policies on eligibility to apply do not differentiate amongst heterosexual married couples in terms of whether they have children, or are planning to have children, whether they are past child-bearing age, whether they are unable to have children for medical or other reasons,” Chief Justice Cheung said. “Nor does the HA’s argument take into account the fact that same-sex couples may be able to adopt children or have children by artificial means.”

Describing the HA’s argument as “contrived,” Chief Justice Cheung added the government body’s “primary, if not overriding objective is to meet the pressing housing needs of the lower income strata of society,” not concern itself with whether tenants might have children.

Suen Yiu-tung, associate professor of gender studies at the Chinese University of Hong Kong, said Tuesday’s ruling was just the latest in a decade’s worth of cases in which “the Hong Kong government has failed to provide convincing arguments to the court” to justify discrimination against LGTBQ+ people.

That includes the issue of marriage: last year, the CFA ruled the government must create a new framework to legally recognize same-sex partnerships by September of next year. While stopping short of granting immediate, full marriage equality, the court left the door open to interpreting constitutional protections for marriage as applying to all couples should the government fail to create a mechanism for civil unions.

Chief Justice Cheung, who also wrote that verdict, said future judges might give a “wider, more liberal interpretation” to Article 37 of the Hong Kong Basic Law, which does not mention gender and states merely that “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

The top court has already held that rights and protections given to opposite-sex couples married in Hong Kong must apply to same-sex couples married overseas.

Same-sex marriage is legal in 36 countries and has been slowly making headway in Asia. Taiwan became the first territory in this region to end marriage discrimination in 2019, followed by Nepal in 2023, while in June, Thailand’s Senate overwhelmingly approved a bill to make same-sex marriage legal as of January of next year, the first country in Southeast Asia to do so.

So far, the Hong Kong government has said nothing about its plan to recognize same-sex unions, to the growing frustration of activists. LGBTQ+ rights have taken a step back in mainland China in recent years amid growing conservatism and concern about population decline, but Beijing has not commented publicly on the Hong Kong cases and it is not clear how much of a factor this is in the Hong Kong government’s decision-making.

Speaking outside court Tuesday, Jerome Yau, co-founder of NGO Hong Kong Marriage Equality, said recent rulings had been “very clear” on this issue.

“Let’s hope the government will take note of the judgment and finally do their work and come up with something comprehensive,” Mr. Yau said, according to the Hong Kong Free Press. “The best solution is marriage equality.”