The Hong Kong Court of Final Appeal ruled on Tuesday that the exclusion of same-sex couples in the current public housing policies and inheritance laws amounts to unlawful discrimination and is unconstitutional.

Regarding the right to apply for public housing as a family unit, the court held that the exclusive spousal eligibility for application for Public Rental Housing and transfer of ownership in the Home Ownership Scheme amounts to discrimination. The court rejected the government’s claim that Article 36 of the Basic Law grants exclusive rights to heterosexual couples under the contested public housing policies, based on the premise that such rights existed prior to the Basic Law coming into force in 1997.

The court also reasoned that the government failed to adduce any evidence on how the housing policies can promote the formation of traditional families nor why prioritizing heterosexual couples’ applications while accepting those from same-sex couples, as a less intrusive means, is unable to achieve the same legitimate aim of promoting traditional family founded in opposite-sex marriages.

Accordingly, the court upheld the lower court’s ruling, concluding that the government failed to strike a balance between same-sex couples’ right to social welfare and the societal aim. The decision affirmed the right of same-sex couples to apply for PRH as an ordinary family. Same-sex couples will now benefit from the government’s exclusive commitment to allocate housing units to ordinary family applicants in three years.

Regarding the inheritance laws, the court found that the differential treatment between opposite-sex marriages and same-sex foreign marriages serves no legitimate aim. The government attempted to justify the differential treatment by asserting that the differential treatment is necessary to maintain a coherent definition of marriages across legislation. The court was not persuaded by this argument, stating that recognizing the status of a surviving same-sex spouse reflects the legislative purpose to “lay down a scheme for the distribution of the deceased’s residuary estate,” different from other matrimonial laws.

The court also upheld the lower court’s reasoning, which maintained that the “marital maintenance duties” imposed on opposite-sex spouses by the local law are irrelevant. It further clarified that inheritance is not based on any legal obligations to provide for maintenance as other classes of beneficiaries under the provisions, such as parents and siblings, do not owe any maintenance duties to the deceased.

Even though same-sex marriage is not legally recognized in Hong Kong, the decision affirmed that the surviving same-sex spouse of the deceased, whose marriage is celebrated in a foreign country, enjoys the right of inheritance under the Intestates’ Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance, both require a “valid marriage” for the surviving spouse to assert their inheritance rights.

In September 2023, the court already affirmed the government’s duty to recognize same-sex marriage but allowed the government to distinguish between core and substantial marital rights. The government lodged its appeals in December 2023 and has yet to propose any framework.