Hong Kong court rules sex-segregated public conveniences breach equality and privacy rights
A Hong Kong court ruled Wednesday that the segregation of the sexes in public conveniences is unconstitutional for its disproportionate interference with transgender individuals’ right to privacy and equality. Judge Russell Coleman directed the government to review its regulations on the gender recognition scheme relating to access to public conveniences within 12 months.
The government conceded that the segregation by biological sex at birth is unconstitutional after the city’s top court ruling on another gender marker case. The only dispute that remained standing was whether the court could adopt a proper remedial construction to the statute.
Senior Counsel Tim Parker for the applicant argued that the law should recognize the real-life experience of a transgender individual and allow them, whose real-life experience is certified by a psychiatrist through a gender identity letter, to use washrooms conforming to their identified gender. Judge Coleman rejected this proposition, ruling that the government and the legislature, rather than the court, are in a better position to draw the line between male and female at law.
Judge Coleman also rejected the government’s proposal to recognize the gender marker on the individual’s HKID card for the purpose of accessing a public convenience. He reasoned that the proposal risks conflating the government’s policy with the law. He further reiterated that the gender marker on the HKID card is not conclusive on the legal recognition of a person’s gender and the associated rights under the law.
The judicial review concerns a criminal offense under the Public Conveniences (Conduct and Behaviour) Regulation, which prohibits any individuals from using opposite-sex public washrooms. In January 2023, the applicant challenged that the segregation based on biological sex at birth infringed on transgender individuals’ rights to equality and privacy.
Local transgender advocacy group Quarks welcomed the ruling. In a statement, the group urges the government to abolish the discriminatory statute and legislate for gender recognition.
In February 2023, the city’s top court ruled in another case that the requirement for full sex re-assignment surgery to alter gender marker on HKID card is unconstitutional. The court held that requiring transgender individuals to undergo the most invasive surgical intervention was disproportionate because it may not be medically necessary in the range of treatments for gender dysphoria.
In April 2024, the government revised its policy to allow pre-operative transgender individuals to change their sex entry. Nonetheless, the policy still requires the applicants to have received hormonal treatment for two years and submit blood test reports when required to have their identified gender reflected on their HKID card.
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International and Comparative SOGIESC Law - Professor Andreas R Ziegler 