[Same-sex marriage] Gay men and spouse challenge public housing policy Victor: Must consider fairness

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Written by: Li Huina

2020-03-04 15:19

Married gay men apply for public housing units in Hong Kong, but the Housing Authority refers to their non-monogamous "couples" as stated in the policy and rejects their applications. One of them raised a judicial review challenge decision, pointing directly to the decision as discriminatory , The right to exploit same-sex families; the government says the policy does not target same-sex couples, but traditional marriages should be protected more than other forms of marriage. The High Court issued a verdict today, arguing that the HA's approach has ensured that the same-sex and heterosexual "couples" are treated differently and violates the principle of fairness. Therefore, the gay ruling was won, and the HA must pay the other party's costs. Applications for public housing with their spouse must also be returned to the HA for reconsideration.

In addition, the judge also refused approval for another application involving a Filipino pastor's request for the right to be "sacrament of alliance" in Hong Kong.

The applicant was Nick Infinger, who claimed that he was married to same-sex couples. He was dissatisfied with the Housing Authority's rejection of their "couple" relationship and went to the High Court for review. (Profile picture)

The applicant is Nick Infinger and the respondent is the Hong Kong Housing Authority.

Discrimination with heterosexual couples

The applicant stated that the Housing Authority's differential treatment of same-sex and heterosexual partners constitutes discrimination. As a result, same-sex couples cannot live in the same public housing and their waiting time will increase. Refers to policies that exploit same-sex families in Hong Kong.

The judge mentioned in his judgment that the Court of Final Appeal has repeatedly reiterated that the court must protect the value of traditional heterosexual marriage and its legislative intent, but when considering the economic rights of the spouse, it may not necessarily have a reasonable relationship with this legislative purpose. In the past, the Court of Final Appeal must also consider whether it involves unfairness or discrimination when considering applications involving the enjoyment of rights of same-sex spouses. In this case, one of the government's arguments mentioned that the housing resources are limited, and traditional marriage and family will have children, so a choice must be made. However, the judge believes that the government has no firm data to prove that if a prospective homosexual spouse applies for public housing, The waiting time has a significant impact.

The court must consider whether the practice violates the principle of justice

Judge Zhou Jiaming pointed out in his judgment that the government regards public housing resources as a "zero-sum game" and refers to the allocation of a unit by the Housing Authority, which means that the waiter loses an opportunity to be allocated, which is an effective resource allocation. Assigned to same-sex couples, with heterosexual couples first. However, the judge considers that the statement of limited resources can be used in most situations in which resources are allocated, and the court still has to consider whether there is a violation of the principle of fairness in exercising this practice.

Different treatment for same-sex and heterosexual couples

Zhou Guan pointed out that although providing sufficient housing resources for heterosexual couple families has a positive impact on the marriage planning of unmarried heterosexual couples and birth planning couples, and rejecting homosexual couples' application for public housing will indeed increase the distribution of heterosexual couples. Opportunity, but in this case, there will be different treatment for same-sex and heterosexual partners.

Judge Zhou Jiaming said that while examining the distribution of resources, he must also consider whether the principle of fairness is violated. (Profile picture)

Failure to confirm impact on overall waiting time

The judge pointed out that the HA has not provided the number of same-sex couples eligible for public housing in Hong Kong, and there is no relevant data to show how long the waiting time for public housing will be extended if they allow same-sex couples to apply for public housing. Officials believe that there is sufficient evidence that allowing same-sex couples to apply for public housing will have a significant impact on traditional families.

Low-income same-sex families also have housing needs

Zhou Guan also pointed out that low-income same-sex families will not require less housing than heterosexual families, and the Housing Authority now has a mechanism to authenticate heterosexual couples who marry overseas. Therefore, the Housing Authority does not think that the Housing Authority is verifying and confirming Administrative inconvenience can occur when same-sex couples are married overseas. Therefore, the HA's approach was considered unconstitutional, and the applicant's public housing application was ordered to be returned to the HA for reconsideration.

▼ Other cases involving same-sex marriage in recent years ▼

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Waiting time up to 17 years

The applicant also suggested that because same-sex couples cannot apply for a family unit, they need to wait up to 17 years before they can go upstairs. If same-sex couples need to rent a temporary house during the waiting period, they will pay up to 12 more than heterosexual couples. Annual rental difference.

Housing shortages are not a reason to exclude same-sex families

The applicant also stated that although Hong Kong is facing the problem of housing shortage and long waiting time for public housing, it cannot be used as a reason to exclude same-sex couples. The applicant questioned whether the exclusion of same-sex couples from applying for public housing would maintain the traditional marriage system in Hong Kong. They also questioned whether applications covering covered same-sex couples would really extend the waiting time for public housing.

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Housing Authority should exercise discretion

The government's representative countered that public housing is an important and precious social resource, and the government needs to consider socio-economic conditions when allocating public housing resources. The Housing Authority should have more discretion in this policy, and the court should try its best Avoid intervention. The regulations do not target same-sex couples and do not directly discriminate against them.

Government needs to protect the needs of traditional families

A government representative also stated that the Court of Final Appeal recognized that the protection of monogamous traditional marriages was a legitimate purpose, so traditional marriages should be protected more than other forms of marriage. Furthermore, in traditional marriages, most families have children, and the government needs to prioritize the needs of these families.

Case number: HCAL2647 / 2018

Same-sex marriage judicial review court