Hong Kong’s top court backs equal inheritance and housing benefits for same-sex couples

Hong Kong’s highest court has upheld previous rulings favoring subsidized housing benefits and equal inheritance rights for same-sex married couples, marking a historic victory for the city’s LGBTQ+ community.

The Court of Final Appeal’s rejection of the government’s appeals ended long-running legal battles over the differential treatment faced by same-sex couples married overseas under Hong Kong Housing Authority policies Kong and two inheritance laws.

The unanimous decisions are expected to have a huge impact on the lives of same-sex couples, who traditionally have fewer rights than their heterosexual counterparts in the global financial hub.

Chief Justice Andrew Cheung said in his judgment that exclusionary housing policies were considered beneficial to opposite-sex married couples because they increased the supply of subsidized housing for them and thus supported the institution of traditional families .

But he added that authorities had not provided evidence showing the potential impact on heterosexual couples of relaxing these policies.

“The contested policies cannot be justified,” he wrote.

Regarding the inheritance laws, Justices Roberto Ribeiro and Joseph Fok said in their written ruling that the challenged provisions are “discriminatory and unconstitutional.”

The Hong Kong government said in a statement that it respected the court’s decisions, adding that it would study the judgments and seek legal advice on next steps.

Hong Kong does not recognize same-sex marriage, prompting some couples to marry elsewhere.

Currently, the city only recognizes same-sex marriage for certain purposes such as taxation, public service benefits and dependent visas. Many government concessions were won through legal challenges, and the city saw growing social acceptance of same-sex marriage.

In September 2023, the highest court ruled that the government should provide a framework to recognize same-sex partnerships.

This ruling, along with other successful legal challenges brought by members of the LGBTQ+ community, made Hong Kong the only place in China to grant such recognition to same-sex couples.

In separate rulings in 2020 and 2021, a lower court ruled that the housing policies involved in Tuesday’s cases violated the constitutional right to equality and that the exclusion of same-sex spouses from inheritance law benefits constituted illegal discrimination.

The government had challenged these decisions in the Court of Appeal, but then lost in October 2023. It then took the case to the highest court.

Nick Infinger, who first launched a judicial review against the Housing Authority in 2018, told reporters that Tuesday’s decisions “recognized that same-sex couples can love each other and deserve to live together.”

“This is not only a fight for me and my partner, but also a fight for all same-sex couples in Hong Kong,” he said in court.

But he added that he was still “a little pessimistic” about whether Hong Kong could become like Taiwan and Thailand by legalizing same-sex marriage.

Hong Kong Marriage Equality, a non-governmental organization, said in a statement that the judges’ decisions make clear that discrimination and differential treatment based on sexual orientation violate human dignity and equality. He called on the government to immediately end the exclusion of same-sex couples from marriage.

The top court’s decisions also conclude a long legal journey undertaken by Henry Li and his late partner, Edgar Ng. After they married in Britain in 2017, Mr Ng bought a subsidized apartment as a marital home with Mr Li.

The Housing Authority, however, said Mr Li could not be added as a permitted occupant of the apartment as a member of Mr Ng’s family, as same-sex married partners do not fall under its definition of “spouse “.

Mr Ng also feared that if he died intestate, his assets would not pass to Mr Li, the court heard.

Mr Ng died in 2020 after suffering years of depression.

After the rulings, Mr Li posted a message on his Facebook account, saying that although he had lived in pain in Mr Ng’s absence, he had not given up on her husband’s aspiration to pursue legality.

“Without you by my side, the arguments of the Government and the Housing Commission in these cases seemed to become more cruel, causing me even more distress,” he wrote in the message. “I hope you can always hear everyone’s gratitude to you.”