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

Hong Kong’s top court has upheld earlier rulings that favoured subsidised housing benefits and equal inheritance rights for same-sex married couples, in a landmark victory for the city’s LGBTQ+ community.

The Court of Final Appeal’s dismissal of the government’s appeals ended some lengthy legal battles over the differential treatment facing same-sex couples married overseas under Hong Kong’s Housing Authority policies and two inheritance laws.

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

Chief Justice Andrew Cheung said in his judgment that exclusionary housing policies were argued to be beneficial to opposite-sex married couples because they increase the supply of subsidised housing for them and thereby support the institution of traditional families.

But he said authorities failed to provide evidence showing the potential impact on opposite-sex couples if those policies were relaxed.

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

On the inheritance laws, judges Roberto Ribeiro and Joseph Fok said in their written ruling that the disputed provisions are “discriminatory and unconstitutional”.

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

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

Currently, the city only recognises same-sex marriage for certain purposes such as taxation, civil service benefits and dependent visas. Many of the government’s concessions were won through legal challenges, and the city has seen a growing social acceptance towards same-sex marriage.

In September 2023, the top court ruled that the government should provide a framework for recognising 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 for same-sex couples.

In separate judgments handed down in 2020 and 2021, a lower court had ruled that the housing policies involved in Tuesday’s cases violated the constitutional right to equality, and that excluding same-sex spouses from inheritance law benefits constituted unlawful discrimination.

The government had challenged these decisions in the Court of Appeal but subsequently lost in October 2023. It then took the cases to the top court.

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

“This is not only fighting for me and for my partner, but this is fighting for all the same-sex couples in Hong Kong,” he said outside the court building.

But he added he is still “a bit pessimistic” about whether Hong Kong can become like Taiwan and Thailand in legalising same-sex marriage.

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

The top court’s rulings also concluded a long legal journey taken by Henry Li and his late partner, Edgar Ng. After they married in Britain in 2017, Mr Ng bought a subsidised flat as his matrimonial home with Mr Li.

The Housing Authority, however, said Mr Li could not be added as an authorised occupant of the flat in the capacity of Mr Ng’s family member because same-sex married partners do not fall within its definition of “spouse”.

Mr Ng was also concerned that if he died intestate his proprieties would not be passed 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 has lived in pain in the absence of Mr Ng, he has not given up his husband’s aspiration to pursue equality.

“Without you by my side, the arguments of the government and the Housing Authority in the cases seemed to become more cruel, causing me even more distress,” he wrote in the message. “I hope you can still hear everyone’s recognition of you.”