Summary: A response to Infinger v Hong Kong Housing Authority - Same-Sex Couples' Unequal Access to Public Housing in Hong Kong

​​Author: Elizabeth Lui
Summarised by Jamie Wong

Summary
 
In March 2020, the Court of First Instance (CFI) handed down the judgment of the application of judicial review in Infinger v Hong Kong Housing Authority[1]. The appeal was against the Housing Authority’s policy on the eligibility for Public Rental Housing (PRH) under ‘ordinary families’, which excludes same-sex couples (Spousal Policy). The Court held that HA failed the third and fourth limbs of the proportionality test since (1) there was no sufficient evidence showing the Spousal Policy significantly reduced the availability of PRH to traditional families, and (2) there was no fair balance between the Spousal Policy and equality for lesbian, gay and bisexual (LGB)  
 
Facts of Infinger v Hong Kong Housing Authority 

Nick Infinger applied for PRH jointly with his husband as ‘ordinary family’. The HA decided that same-sex marriage does not fall under the meaning of husband and wife [2], thus rejected the application for registration as an ordinary family application (Registration Decision). Infinger filed a judicial review on the basis that the Registration Decision was illegal and unconstitutional as it is an unjustified discrimination and contravenes Article 25 of the Basic Law that stipulates everyone is equal before the law.  
 
The CFI’s decision 

The CFI held that the Registration Decision violated Article 25 of the Basic Law and Article 22 of the Hong Kong Bills of Rights Ordinance, hence the Registration Decision was unlawful and unconstitutional. To determine whether an alleged discrimination is lawful, the CFI applied the approach used in QT v Director of Immigration [3]. First, decide whether there is differential treatment on a prohibited ground, and second, if so, whether such differential treatment can be justified using the four-step proportionality test. 
 
Chow J held that the Registration Decision was a differential treatment solely on sexual orientation because HA’s aim was to provide affordable housing to low-income families while housing needs for heterosexual and same-sex couples is essentially the same [4]. The Registration Decision was not justified under the third and fourth limbs of the proportionality test. 
 
Examining the third limb of proportionality test: reasonable necessity? 
The PRH allocation system is a two-tier system: Low-income individuals may apply as non-elderly one-person applicants; or, if married, apply as ordinary families.  
Since there was no information about Hong Kong citizens’ sexual orientation nor the number of same-sex couples who have already married overseas, it is impossible to predict the number of same-sex couples that would have been eligible to apply as ordinary families. Using the data from the Gender Studies Centre of The Chinese University of Hong Kong and Census in 2016, it is estimated that 5.5% of the Hong Kong population are LGB persons. This suggests that more than 2,500 same-sex couples have already married in other jurisdictions. 
 
The Court accepted the HA’s submission that there is a huge scarcity of PRH resources competition for PRH units is a zero-sum contest. In other words, by excluding LGB couples’ eligibility, PRH units left to heterosexual couples naturally increased. Such an arrangement is in line with the Family Aim of preserving heterosexual marriage family formation. 
 
However, other evidence shows that looking at a broader picture it should not be a zero-sum contest between heterosexual couples and same-sex couples for PRH units. 
 
First, allowing a same-sex married couple to apply for a two-person flat saves space. The average living space for a two-person flat is smaller than a one-person flat because there are shared co-living spaces in two-person flats. It would be a wasteful arrangement for same-sex couples to file separate applications of one-person flats. Having two people living in a two-person flat instead of two one-person flats saves up space. The HA could actually construct 760 more two-person PRH units given the saved space if they allow same-sex couples as ordinary families.  
 
Second, in Hong Kong, many consider home ownership as prerequisites of planning a marriage. Having secured a one-person PRH unit, people have less financial burdens and would plan marriage with greater certainty and financial capacity, and would be more able to plan for future housing. In fact, research showed that without accommodation is a major factor for delayed marriage. Allowing same-sex couples to apply as ordinary families can reduce the competition for one-person PRH unit. Heterosexuals can own a housing earlier and with less financial burden, the heterosexual couples may get married earlier and with greater certainty.  
 
Examining the fourth limb: fair balance? 
Following some Canadian case laws, when deciding whether a fair balance has been struck between protecting a constitutional right and protecting a public interest, the impact of the alleged discriminatory measure has to be ‘tangible’ rather than ‘purely speculative’5.  
 
In the case of Infinger, the fiscal implication is tangible in the sense that same-sex couples have to suffer an enormous difference in living costs. Without the PRH units, the same-sex couples would have to go for other housing options like renting private housing. Some calculations suggested that LBG persons have to pay an additional $230,000 because of their sexual orientation, which is a huge economic penalty on LGB persons. Whereas HA’s argument of benefits of preserving the status quo and excluding same-sex couples from applying as ordinary families are simply ‘theoretical’ and ‘speculative. Further, with the aforesaid wasteful arrangement of forcing married same-sex couples to file separate applications for one-person PRH unit, it is difficult to see the benefits of preserving the status quo. 
 
Comments and critiques 

Infinger is a great step forward in protecting same-sex couples’ rights. The Court was willing to look at the broader picture instead of focusing on the zero-sum contest between heterosexuals and LGB persons. This case shows that by protecting LBG persons’ rights, a win-win situation can be achieved.