By Jasmine Kwong

Hong Kong, 10 January 2025: After another landmark court victory for Hong Kong’s LGBTQ+ community, attention now turns to a looming deadline for the government to provide an alternative legal framework that recognises same-sex relationships. Thus far, the authorities have yet to provide an update on their deliberations or engage in any public consultations.

At the end of 2024, the Court of Final Appeal unanimously upheld three key judgments granting equal housing and inheritance rights to same-sex couples. In doing so, it dismissed the administration’s appeals which sought to preserve discriminatory and unconstitutional housing policies and intestacy laws.

In the first matter, the CFA ruled that the Housing Authority was wrong in turning down an application by permanent resident Nick Infinger to rent a public flat under the “Ordinary Families” sub-category with his husband because their marriage in Canada was not recognised in Hong Kong. In the second matter, heard together with the first, the CFA ruled in favour of Henry Li and his late husband Edgar Ng in their judicial review of the Housing Authority’s decision to bar same-sex spouses from being added as an occupant in subsidised flats under the Home Ownership Scheme.

Chief Justice Andrew Cheung said the exclusion of same-sex married couples from the definition of “ordinary families” and “spouses” under the government’s Public Rental Housing Scheme and Home Ownership Scheme were discriminatory.

He rejected the Housing Authority’s contention that the housing benefits enjoyed exclusively by opposite-sex couples were “entrenched” and should be immune from a judicial challenge raised on the basis of inequality. He said the government body had failed to provide evidence showing the potential impact on opposite-sex couples if its policies were relaxed. “The challenged policies cannot be justified,” he wrote.

Li and Ng were also victorious in the third matter, successfully challenging the Intestates’ Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance. In their ruling, Justices Roberto Ribeiro and Joseph Fok held that some provisions in the two pieces of legislation were “discriminatory and unconstitutional”.

In the days that followed, high-profile lawmaker Junius Ho criticised the judgments and urged the government to override the CFA by inviting Beijing to provide an interpretation of the Basic Law. His request was turned down by the Department of Justice, which reiterated that the “relevant legal disputes should be resolved locally in judicial proceedings”.

The CFA’s rulings followed earlier legal successes for the LGBTQ+ community in matters concerning taxation, civil servants’ benefits and the ability to use their preferred gender on identity cards. However, the overall development of equal rights for sexual minorities in Hong Kong continues to be snail-paced. The progress made thus far can be described as incremental, relying heavily on individuals taking legal action, often at great cost.

There are currently 36 jurisdictions around the world where same-sex marriage is legal, Taiwan being the only one in Asia, although Thailand is poised to join this progressive movement, with its legalisation set to take effect on 23 January. Same-sex union is against the law in Hong Kong, although public surveys show growing support for it.

In September 2023, the CFA handed a partial – but still significant – victory to the LGBTQ+ community by ruling that the government had not fulfilled its constitutional duty to provide a legal framework for recognising same-sex relationships. The top court suspended its declaration for two years to give the administration time to establish an appropriate mechanism.

Secretary for Constitutional and Mainland Affairs Erick Tsang revealed last May that officials were working with the Department of Justice to develop the framework. However, activists have expressed frustration over the administration’s lack of further information or progress updates and the absence of any public consultation.

Clearly, the calendar is turning quickly towards September 2025. We await with interest the government’s plan of action.

Jasmine Kwong is an Associate Solicitor at BC&C, developing her practice in both criminal and civil litigation. She is involved in cases across various areas of law, including fraud recovery claims, contractual disputes, employees’ compensation, personal injury claims, defamation, and matrimonial matters. She can be contacted at jasmine@boasecohencollins.com.