The discriminatory nature of the “reproductive potential” argument in the government housing case

Image Source: HKFP Hong Kong's homophobic public housing policy ruled unconstitutional and unlawful by High Court - Hong Kong Free Press HKFP (hongkongfp.com)

Clara Philippi

Clara Philippi graduated from the HKU LLM Human Rights program in the spring of 2022.

On 17 February 2022, Senior Counsel Abraham Chan, arguing on behalf of the HKSAR government, claimed that the Court of Appeal should overturn rulings that granted same-sex couples married abroad access to government housing on the basis that same-sex couples lack “reproductive potential” due to “intrinsic biological differences” when compared to opposite-sex couples [1]. In its submission, the government argued that one of the aims of its housing policies was to promote population growth within “traditional families”. Therefore, it equated allowing same-sex couples access to subsidized housing to a bad investment. 

Hong Kong currently does not facilitate same-sex marriages within its jurisdiction and only recognizes same-sex marriages entered into abroad limitedly (Leung Chun Kwong v the Secretary for the Civil Service [2019] HKCFA 19). Thus, same-sex couples in Hong Kong face a plethora of legal and administrative challenges relating to parenthood. 

For example, in most cases in which same-sex couples conceive with the help of an egg or sperm donor, only the parent biologically related to the child is granted legal parenthood in Hong Kong. In a 2021 landmark decision, the Court of Final Appeal granted a non-biological mother, whose partner had gotten pregnant using a sperm donation, legal parenthood in order to protect the best interests of the child [2]. However, the fact that her partner was the biological mother of the child was a crucial factor in that decision. The same-sex partner not biologically related to the child typically still encounters enormous difficulty in asserting their parental role relating to the child, whereas society may more readily accept non-biological parenthood in a heterosexual marriage. 

Moreover, commercial surrogacy is illegal in Hong Kong and altruistic surrogacy is only available to legally married couples [3]. Male same sex couples - barred from legally getting married in Hong Kong - are thus unable to make use of this path to parenthood. Furthermore, same-sex couples in Hong Kong cannot lodge applications for joint adoption, as they are not recognized as spouses under Hong Kong law, even if they were legally married overseas [4]. Single parent adoptions are permitted and practiced through Section 4(a) of the Adoption Ordinance. However, in such cases only one parent in a same-sex partnership is granted parental rights to the child, as they are legally considered single. 

Therefore, the difficulties same-sex couples in Hong Kong face when trying to become parents are, in fact, not based on intrinsic biological differences, but are artificially created through discriminatory practices of the Hong Kong government. Through the recognition of same-sex marriages or the granting of access to alternative pathways to parenthood for same-sex couples, the Hong Kong government could give same-sex couples the “reproductive potential” it claims they lack. Such developments would, moreover, allow same-sex couples the enjoyment of the equal right to marriage and family protected by Basic Law art. 37. 

Another argument invoked by the government in its submission to the court was that allowing same-sex couples access to subsidized housing would increase the already extraordinarily long waiting times for subsidized housing applicants. However, this issue is wholly the responsibility of the Hong Kong government due to a failure to provide adequate subsidized housing for market demand, and completely out of the control of individual same-sex couples. Therefore, it is unreasonable and illogical to deny same-sex couples access to housing based on shortcomings on the government’s part. 

Besides substantive flaws in the government’s argumentation, the very heart of the “reproductive potential” claim is the invocation of a comparator, which is commonplace in Hong Kong law. Comparators are used in cases in which direct discrimination is alleged. Direct discrimination is less favorable treatment on the basis of a legally protected characteristic compared to the treatment a person without this particular characteristic would have experienced. The comparator thus needs to be an equally positioned person that only lacks the characteristic in question. The aim of using comparators is to showcase that the allegedly discriminatory treatment is based on the protected characteristic and not another factor in the situation.

However, reliance on a comparator in this case can be problematic, as it oversimplifies complex social realities and disregards factors associated with membership in a minority group. For instance, the defense reminded the court that public housing is also allocated to siblings or the elderly, who cannot naturally conceive children. Moreover, in the Hong Kong context, same-sex couples and opposite-sex couples are not equal in all aspects other than their naturally given sexual orientations. Instead, same-sex couples are systematically denied access to alternative pathways to parenthood, which are open and accessible to opposite-sex couples. Therefore, the comparison to an opposite-sex couple, in this case, is ill-fitting, as it is not their sexual orientation which makes same-sex couples unable to demonstrate “reproductive potential”, but Hong Kong’s discriminatory policies regarding adoption, sperm and egg donation, and surrogacy. Furthermore, “reproductive potential” does not seem to be an essential precondition for access to government housing for non-LGBTQ+ applicants. 

Thus, this attempt to reverse a progressive and important landmark ruling that granted same-sex couples access to housing they should be entitled to appears to not be based on genuine concern for public interests, but instead rooted in anti-LGBTQ+ bias.
Bibliography
[1] “Elderly residents could die before getting Hong Kong public flats if gay couples granted same housing rights as heterosexual ones, lawyer argues” (16 February 2022); Wong, Brian. <https://www.scmp.com/news/hong-kong/law-and-crime/article/3167320/elderly-residents-could-die-getting-hong-kong-public>
[2] “‘A huge relief’: Hong Kong’s LGBT+ community hails court ruling granting parental rights for same-sex partners” (11 June 2021); Mogul, Rhea. <https://hongkongfp.com/2021/06/11/hong-kongs-lgbt-community-hails-step-forward-as-court-grants-parental-rights-for-same-sex-partners/>
[3] “Parental Rights for Same-Sex Partners in Hong Kong”, Gall. <https://www.gallhk.com/parental-rights-for-same-sex-partners-in-hong-kong/>
Also: “Surrogacy Shortcomings in Hong Kong” (1 April 2020); Tai, Crystal. <https://www.arianalife.com/topics/lgbt/surrogacy-shortcomings-in-hong-kong/>
[4] Re D (an Infant) 1962 HKLR 431
Also: “Gay and Lesbian Adoption in Hong Kong” (September 2020); Chong, Iris. <http://www.hk-lawyer.org/content/gay-and-lesbian-adoption-hong-kong>