Hong Kong’s Top Court Champions LGBTQ+ Equality in Landmark Housing Ruling

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Introduction

On November 26, 2024, the Hong Kong Court of Final Appeal (HKCFA) upheld rulings granting subsidized housing benefits and equal inheritance rights to foreign-married same-sex couples in Infinger Nick v. HKHA. This decision is the latest in a series of landmark judgments advancing LGBTQ+ rights in Hong Kong, including recognition of foreign same-sex marriages for taxation, civil service benefits, and dependent visas. These rulings underscore the court’s commitment to equality under Article 25 of the Basic Law (BL) and Article 22 of the Bill of Rights Ordinance (BORO).
However, the court also emphasized balancing societal interests with individual rights. To achieve this, it applied the four-step proportionality test from Hysan Development Ltd v. Town Planning Board, a flexible framework for scrutinizing restrictions on constitutional rights.


Hysan test, a flexible framework

Restrictions on constitutional rights are all subject to scrutiny. The well-established four-stage Hysan proportionality test is routinely applied as a crucial part of the judicial review process. The four-stage Hysan test is a cornerstone of Hong Kong’s judicial review process:

Legitimate Aim: Does the policy pursue a valid goal?
Rational Connection: Is the policy rationally linked to that goal?
Minimal Impairment: Is the policy no more restrictive than necessary?
Balancing Exercise: Does the policy strike a reasonable balance between rights and societal benefits?
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For LGBTQ+ cases, the court applies a stricter standard at stage three (no more than reasonably necessary), especially when fundamental rights are at stake.


Legitimate Aim and Rational Connection

Step 1: Legitimate Aim?
The government argued that subsidized housing policies aimed to encourage procreation within traditional (opposite-sex) families. The court accepted this as a legitimate aim, citing precedents like Sham Tsz Kit v. Secretary for Justice (2023).

Step 2: Rational Connection?
Here, the government’s argument faltered. The court found no evidence that excluding same-sex couples materially encouraged opposite-sex families to have children. Critically, the number of affected same-sex couples was de minimis (too few to be considered significant, and hence cannot materially impact opposite-sex families). Without empirical data, the Housing Authority (HA) failed to justify the exclusion. 


Minimal Impairment: Key Scrutiny

The Court of Final Appeal acknowledged and respected the government’s authority in making policy, and is equally aware of how it could impact and disadvantage certain groups of people, especially in socially redistributive decisions. In fulfilling their role of checking the government’s power, the courts require the executive’s policies to achieve their aims with methods that are no more than necessary.

Particularly, the apex court placed emphasis on the lack of empirical evidence to support the HA’s claims. It noted that whether evidence should be required to back up a justification depends on case facts, context, and the nature of the justification itself. The courts acknowledged that reasoning based on moral or political considerations may lack evidentiary support, and thus be more readily accepted even without proof. However, the same cannot be said for socio-economic justifications, where the courts require substantial evidence. 

Despite being in the best position to obtain information on how many opposite-sex couples benefit from the total exclusion of same-sex couples in this policy, the HA did not provide such data. This failure doomed the policy at stage three of the proportionality test. 
Indeed, not only was the HA’s case criticized for the complete lack of evidence to support their arguments, but it was also undermined by the absence of less restrictive measures that would also support their aim. For example, the apex court suggested prioritizing opposite-sex couples in housing queues while still letting same-sex couples apply. 


Balancing Exercise: Equality vs. Competing Interests

At the last stage, the HA’s argument that relaxing these policies would significantly thwart the promotion of traditional family structures, again, fails for lack of empirical data. Although the supply of housing is highly limited, the impact of including same-sex couples in “ordinary family” would be shared among the different types of family structure, so relaxing these policies does not undermine opposite-sex couples’ rights under Basic Law Art. 36. These policies are mainly concerned with applicants who are in the low- to middle-income strata; restricting same-sex couples from applying for and living in public renting housing units together may affect their ability to share a family life.

The HA suggested that including same-sex couples would disrupt its broader housing policy framework. The court rejected this outright, noting that equality rights under the Basic Law cannot be sidelined by administrative convenience.

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Interaction with Landmark LGBT Precedents

Infinger Nick builds on two pivotal cases in the development of LGBTQ rights in Hong Kong: QT v. Director of Immigration, which recognized foreign same-sex marriages for dependent visas; and Leung Chun Kwong v. Secretary for the Civil Service, which extended spousal benefits to same-sex couples. Both cases involved couples in foreign civil partnerships.

Notably, Infinger Nick relies on the interpretation of BORO and Basic Law rights from QT and Leung Chun Kwong. Infinger Nick refers to BORO Art. 1 (Leung Chun Kwong) and BORO Art. 22 (QT), and Basic Law Art. 25 (Leung Chun Kwong & QT), as well as Basic Law Art. 39 (QT) to support the idea of equality. The Court in Infinger Nick concluded that “there is no warrant to read a Basic Law guarantee on pre-existing social welfare rights as trumping the constitutional requirement of equality before the law under BL and of [BORO]”.

Two lines of reasoning from QT and Leung Chun Kwong permeate through the decision of the present case. Firstly, unlawful discrimination is “fundamentally unacceptable” (QT at [27]-[28]). Secondly, “same-sex couples who are lawfully married overseas are in an analogous and comparable position to opposite-sex married couples” considering the “publicity and exclusivity” of the relationship (Leung Chun Kwong). 

There are also some key differences. QT and Leung Chun Kwong both found it unnecessary to proceed with the last test of reasonable balance since “sexual orientation of spouse is not rationally connected to talent aim” in QT and “financial benefits on spouses taxation were not conferred to protect the institution of marriage” in Leung Chun Kwong. 

The present case, however, reaches the third and fourth steps of the test since there may be a connection between promoting traditional family structures and favouring opposite-sex couples in the application for HA units. However, it failed at the balancing stage since there is a total absence of any explanation as to why a less restrictive measure could not be adopted to support the promotion of traditional family structures.