Elderly residents seeking public rental flats could die before they get one if same-sex couples enjoy similar benefits as their heterosexual counterparts, a government-assigned lawyer has argued in seeking to overturn a judge’s ruling that Hong Kong’s differential housing policies are unconstitutional.

The Housing Authority has lodged an appeal in respect of two judicial review applications which had ended with victories for the three claimants, who were denied their rights to either apply for public housing or live together in subsidised units.

Under existing rules, same-sex couples cannot apply for public rental housing as a family and have to file applications as separate individuals, which warrants a longer waiting time.

Hong Kong public housing estates in Tseung Kwan O.

They also cannot add occupants or transfer ownership of subsidised flats under the authority’s Home Ownership Scheme (HOS).

In March 2020, Court of First Instance judge Anderson Chow Ka-ming ruled in favour of permanent resident Nick Infinger in holding that the authority had illegally barred him and his spouse from renting a public housing flat.

The same judge similarly sided with gay couple Henry Li Yik-ho and Edgar Ng Hon-lam in June last year when he found that the authority’s policies on HOS flats constituted unlawful discrimination on the basis of sexual orientation.

In Wednesday’s hearing before the Court of Appeal, Abraham Chan Lok-shung SC, for the Housing Authority, said the line between traditional and same-sex families was drawn to protect the former’s rights to social welfare and raising a family freely under Articles 36 and 37 of the city’s mini-constitution, the Basic Law.

In the case of public housing, Chan said same-sex couples would compete with traditional ones, resulting in a longer queue for rental flats.

“Affecting adversely the waiting time in a constitutionally protected category [of residents] is itself an interference with their constitutional rights … Any additional period of waiting may critically affect their family life,” Chan said.

The lawyer suggested that, if not for the differential policies, some elderly residents would have passed away before the authority granted their applications.

“To put it bluntly, any further period of waiting may be critical or decisive to them … They may well die or become permanently hospitalised within that period,” he said.

Barrister Timothy Parker, who represents Infinger, said the authority had failed to provide evidence to show the purported impact on traditional families for adopting non-discriminatory housing policies.

“Evidence is clear that the authority has not attempted to assess how many same-sex couples will apply [if they are given the rights] and the impact on waiting time [for public housing],” he said.

The hearing continues on Thursday before justices Jeremy Poon Shiu-chor, Aarif Barma and Thomas Au Hing-cheung.