Ensuring rights enforced – the story of Henry and Edgar

Image Source: SCMP
(Lawyers for gay homeowner call for his husband to be given equal treatment under Hong Kong’s inheritance laws | South China Morning Post (scmp.com))

Suzanne Mui
Suzanne Mui is a HKU law student currently enrolled in the LLB programme. With or without a legal dimension, LGBTQ+ has been a cause very close to her heart and will always be.

Following his husband Mr. Edgar Ng’s untimely death, Mr. Henry Li found himself barred from inheriting the legal title of the property he shared with his spouse and from living in it. He was also denied the right to make funeral arrangements or to handle probate matters for his late husband. Li as a result was faced with a chain of legal battles. 

In this blog, we will examine the following judicial review case: Li Yik Ho v The Hong Kong Housing Authority. Although the judgment handed down could be said to be favourable towards Mr. Li, it also reflects how Hong Kong constitutional law is crippled by outdated gender ethics and gendered language. 

Housing Rights

The background of the case was that Mr. Li had been trying to become a joint owner of a government-subsidised Home Ownership Scheme (“HOS”) Flat (“the flat”) which the property sale and purchase agreement was signed by his husband Mr. Ng. However according to the Housing Authority (“HA”), Mr. Li had to pay a premium in order to become a joint owner of that flat which he otherwise would not have to had he been in a heterosexual marriage, as the HA entitles heterosexual couples purchasing government-subsidised HOS flats as their matrimonial homes to almost equal ownership and occupancy rights, irrespective of each of their financial contribution. Also since Mr. Li does not qualify as a family member under the definition of a “spouse” in the HA’s policy which only covers heterosexual couples, he was not allowed to live in the flat with Ng unless he paid for it. 

Under the HA’s policy at the time, Mr. Li was rejected as an additional family member occupant, since that category was only open to “spouse(s)” or “children under the age of 18 of owner/ joint-owner”. The HA prescribed that a ‘husband’ under the category of “spouse(s)” means ‘a married man especially in relation to his wife’ and a ‘wife’ means ‘a married woman especially in relation to her husband’, effectively excluding same-sex marriages. As such, Mr. Li could not qualify as a spouse to Mr. Ng, and therefore ineligible for additional family member occupancy.  

At trial, the HA justified its policy by explaining that the founding aims of the HOS only intended to provide an “opportunity for low to middle-income families, as traditionally
conceived, to achieve home ownership”, confining the recipients of this scheme strictly to heterosexual couples. It was said that at the conception of the HOS in 1978, the policymakers did not see a need to allow homosexual couples’ entry into this scheme, which might explain the reason why the founding aims of the HOS Scheme were formulated as such. However, 43 years later in 2021, HA insisted that the founding aims have “remained essentially unchanged throughout the years”, the contention is one that is out of touch with changes in social conditions over the years: the society is not solely composed of heterosexual couples (married or not), relationship formulations and citizens’ needs have transformed significantly. The unchanging aims failed to meet the needs of contemporary sexual minorities, who are no less an important stakeholder group in society than any else. 

Furthermore, Chow JA considered in his ruling that the inadequacy of housing supply affect both opposite-sex couples and same-sex couples. It was also held that the HA failed to justify that its differential treatment towards same-sex couples in contrast with heterosexual couples is proportionate to achieve the safeguarding of “traditional families” in Hong Kong, thus raises the potential question as to whether such policy constitutes unlawful discrimination against specific sexual orientations. 

Critique

An important point raised by the Applicant’s counsel and subsequently acknowledged by the Court is that there is an “important distinction between encouraging a traditional family or childbirth and discouraging homosexual relationships.” In plain words, defenders of the traditional family fall short in explaining why their cause must be achieved by depriving the rights of same-sex couples. Rightly so, public bodies should not use traditional values as a shield to excuse discriminatory policies. Public bodies should also be in touch with changing social conditions, instead of insisting on where policies originated from, there is a realistic need to respond to societal changes by updating their policies and policy aims to meet new societal needs. 

Moreover, it is crucial to for law drafters should use more gender-neutral or otherwise more inclusive lexicons instead of sticking to the gender-binary. Housing is only one area of public policy that failed to take into account the needs of sexual minorities apart from the cis-straight majority.  However, even now government departments and public bodies demonstrate a general reluctance towards reviewing and reforming discriminatory policies until the Court makes a declaration on these policies as unconstitutional or unlawful. These policy failures giving rise to judicial review lawsuits sometimes also generate costs to public money as many claimants of these lawsuits rely on government legal aid to fund their claims against pertinent government departments for their grievances. 

And in reviewing existing policies, we urge the government to consider fundamental rights guaranteed by the Basic Law and the Hong Kong Bill of Rights with reference to applicable common law and international law. Indeed, the judgment of Mr. Henry Li and his late husband’s case notes that Basic Law Art. 37 safeguarding citizens’ private and family life does not give mandate permitting policies which “discriminate against same-sex couples based on their sexual orientation in relation to matters where same-sex couples and opposite-sex couples are in a comparable or analogous position”. The government should also recognize its obligation to protect citizens’ “housing” rights and to the “improvement of living conditions” prescribed under “rights of adequate standard of living” in International Covenant on Economic, Social and Cultural Rights (ICESCR) Art. 11 – everyone should have reasonable access to shelter regardless of their sexual orientations and sexual identities.

References
[1] Ng Hon Lam Edgar v The Hong Kong Housing Authority [2021] 3 HKLRD 427 https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=136766&QS=%28%5B2021%5D%2BHKCFI%2B1812%29&TP=JU

[2] Ibid, §-§(2), §10

[3]  Ibid, §21

[4] Ibid, §64(1)

[5] Ibid, §76

[6] Ibid, §51

[7] Ibid, §40