Hong Kong top court affirms housing, inheritance rights for same-sex couples

HONG KONG – Hong Kong’s top court on Nov 26 ruled to affirm housing and inheritance entitlements for same-sex couples, siding against the government in favour of LGBTQ rights protection.

The ruling comes after a landmark 2023 decision, also by the Court of Final Appeal, that

shut the door on same-sex marriage

but gave the government two years to set up a framework for other rights for such couples.

It marked the end of a six-year legal battle that began when resident Nick Infinger took the government to court over a policy that excluded him and his partner from public rental housing on the grounds they were not an “ordinary family”.

The case was later heard together with that of

Mr Henry Li and his late husband, Mr Edgar Ng

, who challenged government policies on subsidised housing and inheritance rules that barred same-sex couples.

“The court unanimously dismisses” the appeals brought by the Hong Kong government, Chief Justice Andrew Cheung wrote in two court rulings.

Speaking outside court, Mr Infinger displayed a rainbow flag and thanked his partner.

He said it would “take time” for Hong Kong to recognise further rights for the LGBTQ community.

“I hope Hong Kong can become more equal and fair. Today’s court rulings acknowledged that same-sex couples can love each other and they deserve to live together,” he told reporters.

Mr Infinger praised the court but said he was still “a little pessimistic” that Hong Kong could match jurisdictions like Taiwan and Thailand on rights protections.

Mr Li released a letter addressed to his husband, who died by suicide in 2020, saying he was “grateful” for the ruling.

“I have lived in pain, but I have never given up your desire for equality... I hope you can still hear our affirmations of you,” he wrote. “I hope I have not failed you.”

Advocacy group Hong Kong Marriage Equality applauded the Nov 26 court rulings and urged the government “to immediately end the exclusion of same-sex couples from marriage”.

Support for same-sex marriage in Hong Kong has grown over the past decade and hit 60 per cent in 2023, according to a survey conducted jointly by three universities.

LGBTQ activists say they hope the mandated upcoming framework can protect rights in a more comprehensive way, instead of them relying on incremental victories in court.

The government told AFP in September that it “has been studying the range of issues involved and formulating implementation details” on protecting same-sex couples’ legal rights.

In his ruling, Chief Justice Cheung said policies that excluded same-sex couples from public rental flats and subsidised flats sold under the city’s Home Ownership Scheme “cannot be justified”.

“(For) needy same-sex married couples who cannot afford private rental accommodation, the (government’s) exclusionary policy could well mean depriving them of any realistic opportunity of sharing family life under the same roof at all,” he added.

Public rental flats house around 28 per cent of the city’s 7.5 million people.

Lawyer Monica Carss-Frisk, representing the government, argued in an October hearing that housing policy was designed to support “procreation” among opposite-sex partners.

But the Chief Justice responded at the time that opposite-sex couples without children were allowed to apply for public housing, many with no plans for offspring.

On the issue of inheritance, Justices Joseph Fok and Roberto Ribeiro wrote in Nov 26’s ruling that existing rules were “discriminatory and unconstitutional”, adding that the authorities had “failed to justify the differential treatment” of same-sex couples.

Under the law, same-sex couples could not benefit from the rules applicable to “husband” and “wife” when it came to distributing a dead person’s estate.

Gender studies associate professor Suen Yiu-tung of The Chinese University of Hong Kong said the court had not accepted the government’s rationale of excluding same-sex couples as a way of defending the institution of marriage.

Nov 26’s rulings, along with similar cases over the past decade, show the government “has continuously failed to provide convincing arguments to the court to justify differential treatment of same-sex couples’ experience in different domains of life”, Prof Suen said.

Mr Infinger and Mr Li had won in lower courts, but the government in February took the cases to Hong Kong’s highest appeals court, where they were heard by a panel of five local judges. AFP