The decision comes after a landmark 2023 ruling by the same court shut the door on legalising same-sex marriage, but gave the government two years to set up an "alternative legal framework" to safeguard rights for such couples.
Tuesday marked the end of a six-year legal battle after resident Nick Infinger took the government to court when he and his partner were excluded from public rental housing on the grounds they were not an "ordinary family".
The case was later heard together with that of Henry Li and his late husband, Edgar Ng, who challenged government policies on subsidised housing and inheritance rules that barred same-sex couples.
Speaking outside court, Infinger displayed a rainbow flag and thanked his partner.
He said it would "take time" for Hong Kong to recognise further rights for the LGBTQ community.
"I hope Hong Kong can become more equal and fair. Today's court rulings acknowledged that same-sex couples can love each other and they deserve to live together," he told reporters.
Infinger praised the court but said he was still "a little pessimistic" that Hong Kong could match jurisdictions like Taiwan and Thailand on rights protections.
Li released a letter addressed to his husband Ng, who died by suicide in 2020, saying he was "grateful" for the ruling.
"I have lived in pain, but I have never given up your desire for equality... I hope you can still hear our affirmations of you," he wrote.
"I hope I have not failed you."
- Housing and inheritance -
Infinger and Li had previously won in lower courts, but the government in February took the cases to Hong Kong's highest appeals court.
On Tuesday, the court unanimously dismissed the appeals.
Chief judge Andrew Cheung said policies that excluded same-sex couples from public rental flats and subsidised flats sold under the city's Home Ownership Scheme "cannot be justified".
"(For) needy same-sex married couples who cannot afford private rental accommodation, the (government's) exclusionary policy could well mean depriving them of any realistic opportunity of sharing family life under the same roof at all," Cheung added.
Public rental flats house around 28 percent of the city's 7.5 million people.
On the issue of inheritance, judges Joseph Fok and Roberto Ribeiro wrote that existing rules were "discriminatory and unconstitutional", adding that authorities had "failed to justify the differential treatment" of same-sex couples.
Under the law, same-sex couples could not benefit from the intestacy rules applicable to "husband" and "wife" when it came to distributing a deceased person's estate.
Suen Yiu-tung, a gender studies professor at the Chinese University of Hong Kong, said the court had not accepted the government's rationale of excluding same-sex couples as a way of defending the institution of marriage.
Tuesday's rulings, along with similar cases over the past decade, show the government "has continuously failed to provide convincing arguments to the court to justify differential treatment of same-sex couples' experience in different domains of life," Suen said.
The Hong Kong government respected the Court of Final Appeal's decision, a spokesperson said on Tuesday.
"We will study the judgment thoroughly and seek legal advice from the Department of Justice for appropriate follow-up actions," the spokesperson added.
- 'End exclusion' -
Advocacy group Hong Kong Marriage Equality applauded the rulings and urged the government "to immediately end the exclusion of same-sex couples from marriage".
Support for same-sex marriage in Hong Kong has grown over the past decade and hit 60 percent last year, according to a survey conducted jointly by three universities.
More than 30 countries around the world have legalised marriage for all since the Netherlands became the first to do so in 2001.
Mainland China is not among them, and there are no explicit laws against the discrimination of LGBTQ people there.
LGBTQ activists say they hope Hong Kong's mandated upcoming framework can protect rights more comprehensively instead of relying on incremental victories in court.
The government told AFP in September that it had "been studying the range of issues involved and formulating implementation details" on protecting same-sex couples' legal rights.
Hong Kong's legal battles over LGBTQ rights: key dates
Hong Kong (AFP) Nov 26, 2024 -
Hong Kong's LGBTQ community has long resorted to the courts to fight for equality and rights protection -- and that strategy has gradually paid off over the past decade.
The Chinese city still does not permit same-sex marriage, but activists have won piecemeal victories that struck down discriminatory government policies on visas, taxes, inheritance and housing.
Here are some key dates:
- 1991: Decriminalisation -
Hong Kong's colonial-era lawmakers in 1991 voted to decriminalise consensual sexual acts between men aged 21 or above, belatedly following Britain's lead.
After the city was handed over to China in 1997, LGBTQ activists found limited success in a legislature packed with Beijing loyalists, and proposals for an anti-discrimination law on the basis of sexual orientation and gender identity went nowhere.
- 2006-2008: Early successes -
The case of Leung TC William Roy, which went to the Court of Appeal, helped lay the groundwork for LGBTQ rights protection under the Basic Law, Hong Kong's mini-constitution.
Appeal judges ruled in September 2006 that the Basic Law and Hong Kong's Bill of Rights should be read in a way that prohibited unlawful discrimination on the basis of sexual orientation.
In the 2008 case of Cho Man-kit, the court said Hong Kong's Broadcasting Authority was wrong to publicly criticise a television documentary that featured same-sex marriage.
- 2013 onwards: Trans rights -
Hong Kong's top court in 2013 ruled in favour of a transgender woman's right to marry -- a stance considered progressive compared with other Asian jurisdictions at the time.
The plaintiff had completed gender confirmation surgery and should count as a woman for the purposes of getting married, which would allow her to marry a man, the judges said.
In 2023, the Court of Final Appeal ruled that a transgender person can apply to change the "sex entry" on their Hong Kong identity card without having to fully complete surgery -- though activists say the government has not fully amended its policy to reflect the court's demands.
- 2018 onwards: Incremental wins -
Legal challenges in the late 2010s showed a pattern of activists targeting smaller wins to increase their chances of success.
Many of their arguments focused on how certain Hong Kong government policies treated same-sex couples differently from opposite-sex couples without good reason.
This led to the Court of Final Appeal siding with same-sex couples on issues such as spousal visas in 2018 and joint taxation in 2019.
- 2023: Same-sex marriage bid -
Jimmy Sham, a pro-democracy activist known for advocating LGBTQ rights, asked the court to strike down Hong Kong's ban on same-sex marriage -- a move considered more ambitious than previous legal bids.
On September 5, 2023, by a 3-2 vote, Hong Kong's top judges rejected same-sex marriage but ordered the government to set up an "alternative legal framework" to protect same-sex couples' rights.
Officials were given a two-year deadline to pass relevant legislation. No bill has yet been tabled.
The government told AFP in September that it was "formulating implementation details" -- but declined to say if a public consultation would be held.
Sham was one of 45 democracy campaigners jailed this year after being found guilty of subversion under a Beijing-imposed national security law, though his case was not directly related to LGBTQ advocacy.
- 2024: More gains -
On Tuesday, Hong Kong's top court ruled against the government to affirm housing and inheritance rights for same-sex couples.
Resident Nick Infinger went to court over a policy that excluded him and his partner from public rental housing on the grounds they were not an "ordinary family".
The case was later heard together with that of Henry Li and his late husband, Edgar Ng, who challenged government policies on subsidised housing and inheritance rules.
The court unanimously dismissed the government's appeals.
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