A Hong Kong court has ruled that a law prohibiting individuals from using some public toilets designated for the opposite sex must be struck down, as a judge partially upheld a legal challenge for widening acceptance for transgender people in sex-specific facilities.
In the landmark ruling, the High Court upheld an anonymous litigant’s claim that the government violated its constitutional duty to safeguard residents’ equality and privacy rights by criminalising the misuse of public restrooms managed by the Food and Environmental Hygiene Department at the expense of the transgender community.
Mr Justice Russell Coleman suspended his judgment for a year to allow the government time to come up with an approach, noting that officials might feel content to “let the criminal offence go”.
“I suppose the view could be taken that, as with other conveniences accessible by the public (but privately managed), there are other offences which can be used to deter and punish improper conduct,” he said in a 51-page judgment.
“This is a matter of line-drawing, which seems to me to be a question for the government or legislature to address.”
He also stressed that the court would not judge where the line separating men and women should be drawn in the legal context, as it was a matter for legislation, “probably in the context of wider or interlinked questions”.
The government can also file an appeal against the decision within 28 days.
The applicant, a transgender man only identified in court as “K”, sought a judicial review in 2022 by highlighting a potential breach of local laws if he was found to have entered a public restroom that did not align with the female sex marker on his identity card.
The court heard that K held a gender identity letter showing he was undergoing a period of “real-life experience”, during which he sought to live consistently in the adopted gender.
The step is generally required in Hong Kong for anyone wishing to proceed to hormonal treatment or sex reassignment surgery.
The Public Conveniences (Conduct and Behaviour) Regulation, which governs the use of public lavatories managed by the department, bars anyone aged five or above from such facilities allocated to their opposite sex. Offenders can face a fine of up to HK$2,000 (US$254).
The applicant’s counsel argued the regulation should be revised to accommodate holders of such medical certificates so that they could access toilets of the sex they identified as before they were deemed fit to receive treatment.
Tim Parker SC, for K, highlighted the mental health challenges faced by the transgender community and said his client would minimise water intake while outdoors to avoid having to go to public toilets and arousing suspicion.
Authorities resisted the legal bid by highlighting safety and privacy concerns and society’s expectation that toilet access be limited in accordance with the users’ biological sex.
The present case has founded a new battleground for greater legal recognition by the LGBTQ community that has forced the city government to implement piecemeal reforms over the years through legal action.
The Court of Final Appeal delivered a landmark judgment in 2023 affirming transgender people’s right to use their preferred sex on their identity cards without having to undergo the full reassignment process.
But the top court also highlighted that the new legal position did not signify recognition of the holder’s sexual status as a matter of law.
One of the applicants behind the successful legal bid has since initiated a fresh challenge over what he considers to be unlawful requirements to continue using his preferred sex on his identity card.
Quarks HK, a concern group focusing on issues with transgender youth, said the ruling marked a significant milestone in human rights development in Hong Kong.
It urged authorities to set up more gender-friendly public facilities and double down on efforts to remove the social stigma attached to transgender people. - SOUTH CHINA MORNING POST
