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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USA: Supreme Court upholds Tennessee’s law banning gender-affirming care for youth

POLICY NEWS       Supreme Court upholds Tennessee’s law banning gender-affirming care for youth   Today, the Supreme Court upheld Tennessee’s law banning access to gender-affirming care for transgender youth. Williams Institute research shows that an estimated 1.6 million people ages 13 and older in the U.S. identify as transgender. The decision impacts the 112,400 transgender youth ages 13-17 who live in Tennessee and 24 other states that have similar laws banning access to gender-affirming care for transgender youth.     While impacting thousands of transgender youth and their families, the decision does not affect access to care for the youth living in states that do not ban access to hormones and puberty blockers. Many of these states have shield laws that protect access to care for youth and their families and safeguard providers who offer care. These states could offer access to care for transgender youth living in states with bans who can travel to them. Research shows that these bans deny young people access to care endorsed by every major medical association in the U.S. and negatively impact providers. In response to a recent Williams Institute survey, 29% of providers in states without bans reported that they had received threats to their workplace related to the provision of gender-affirming care, and 26% had been personally threatened online. Over half (55%) of providers have experienced a recent increased demand for care among youth, and many reported long waitlists. Today’s decision upholds state laws that ban access to gender-affirming care for youth. However, it was decided on narrow grounds, which leaves open avenues to legally challenge other laws and policies that limit transgender people’s participation in areas such as the military, education, and health care.   For example, the majority opinion leaves open the question of whether sufficient evidence of animus toward transgender people by the government could result in a different outcome. It also did not determine whether classifications based on transgender status are entitled to heightened scrutiny, allowing Equal Protection challenges to other forms of discrimination against transgender people to proceed. The Court’s decision extends only to laws that implicate both minors and medical care. The opinion also doesn’t impact other constitutional arguments, including the fundamental rights of parents to make decisions about their children’s medical care, the responsibility to protect incarcerated transgender people, or the First Amendment rights to obtaining a valid passport and fully participating in public education. Additionally, Justice Alito stated in his concurring opinion that Bostock is now “entitled to the staunch protection we give statutory interpretation decisions,” so any efforts to overturn workplace nondiscrimination protections for transgender people are likely to fail. Notably, the Justices’ written opinions depart from language used in executive actions by the Trump administration, which denies the existence of transgender people or portrays them as trying to commit fraud in the military context. In its first sentence, the majority opinion cites the Williams Institute’s estimate of the transgender population and includes references that use respectful language, an marked departure from the administration’s rhetoric regarding transgender people.  “Today’s decision will directly impact the health care decisions of thousands of transgender youth and their families,” said Christy Mallory, Interim Executive Director and Legal Director at the Williams Institute. “But based on research and the personal stories of transgender people, the Supreme Court affirmed that transgender people of all ages exist, they have experienced discrimination, and constitutional and other legal arguments remain available to challenge such discrimination.”

The Williams Institute at UCLA School of Law is an academic research institute dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.

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The US Supreme Court issued an opinion on Wednesday upholding a 2023 Tennessee law restricting minors’ access to gender affirming care in the state.

The 2023 Tennessee law, SB1, prohibits medical procedures that alter a minor’s hormonal balance, remove a minor’s sex organs, or otherwise change a minor’s physical appearance when undergone with purpose of enabling a minor to identify with an identity inconsistent with the minor’s sex, or treating discomfort from discordance between the minor’s assigned sex and asserted identity. The law emphasizes that it only prohibits the medical procedures when the purpose is for gender-affirming reasons.

Shortly before the law was supposed to take effect in 2023, three Tennessee families who have transgender children and one physician brought suit against the state of Tennessee. The plaintiffs argued that the Tennessee law violated their equal protection rights under the Fourteenth Amendment because the law classifies on the basis of sex and discriminates against transgender persons. The Biden Administration ended up joining the plaintiffs in their action, and the case later became known as US v. Skrmetti.

A district court originally blocked the law, calling it unconstitutional, but in a tight decision, the US Court of Appeals for the Sixth Circuit reversed, allowing the law to become effective as proceedings continued. The Supreme Court approved the plaintiff’s writ of certiorari and, in a 6-3 decision, upheld the law. Chief Justice John Roberts’ majority opinion, which is joined in or concurred with by all of the conservative justices, states that the Court has decided this law sets age- and use-based limits on medical care and exercises the states’ authority to regulate medicine. Therefore, this law must be reviewed under rational basis review, which passes.

Chief Justice Roberts concludes his opinion with a statement on the Supreme Court’s role in policy debates in the US:

The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best. Our role is not “to judge the wisdom, fairness, or logic” of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.

In a dissent joined by the other two liberal justices, Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor writes that she wholly disagrees with the majority’s use of rational basis review to analyze this law. She states this law discriminates against transgender adolescents and should have been held to intermediate scrutiny for this reason. Justice Sotomayor warns of the dangers that leaving the rights of transgender persons in the hands of a “political whim.”

The decision comes amid the strongly polarized debate over transgender rights in the US after multiple states have enacted similar laws to SB1 and laws relating to the restriction of transgender athletes’ participation in women’s sports.

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