Transgender people have right to use public toilets in line with their affirmed genders, Hong Kong court rules

HKFP

5 days ago

Transgender people are entitled to use public toilets according to their affirmed genders, a Hong Kong court has ruled in a landmark legal challenge filed by a trans man.
High Court Judge Russell Coleman said in a judgment delivered on Wednesday that the Public Conveniences (Conduct and Behaviour) Regulation (PCCBR), which makes it illegal for transgender people to enter public toilets in line with their gender identity, is unconstitutional.
Coleman ruled that two relevant provisions of the law should be struck down but suspended the judgment for one year to allow the government to 'consider and implement the appropriate way to resolve the contravention.'
According to provisions 7 and 9 of the PCCBR, no male person, other than a child under five who is accompanied by a female relative or nurse, can enter a public toilet allocated for women, and vice versa.
Under the current law, authorities have the power to order any person violating the law to leave public toilets. Those who violate the law may be committing a criminal offence and will be fined up to HK$2,000.
Judge Coleman ruled that those provisions contradicted Article 25 of the Basic Law, which states that all Hong Kong residents are equal before the law.
The PCCBR only applies to public toilets managed by the Food and Environmental Hygiene Department (FEHD). The High Court judgment did not touch upon the regulations of privately managed toilets accessible to the general public.
K, the applicant in the judicial review, said in a Chinese-language statement released by his legal representatives on Wednesday afternoon that he began preparing the legal challenge six years ago.
'Today, my transgender friends who are still undergoing gender transitions and I can openly use public restrooms without fear of being denied,' he said. 'This is a progressive step towards a more gender-friendly environment in Hong Kong, and we hope that the judicial system in Hong Kong will gradually become more inclusive in the future.'
K, who was assigned female at birth, has been receiving medical treatment, including hormonal treatment, since he was 19.
When he filed the judicial review, he was waitlisted for sex reassignment surgery and still identified as 'female' in his Hong Kong Identity Card, according to the judgment.
Daly & Associates, K's solicitors, called the ruling a 'victory' and 'another step forward on the long road towards equality for the LGBTQ+ community in Hong Kong.'
'We welcome this judgment as a significant milestone in the advancement of transgender rights in Hong Kong,' the solicitors said. 'We urge the Government not to continue perpetuating these injustices, but to take timely, proactive actions to protect fundamental human rights, including the right to protection from discrimination on the grounds of gender identity.'
Transgender concern group Quarks urged the government to 'immediately strike down' the provisions, as well as to push legislation of gender recognition and to comprehensively review gender-related laws and policies.
Definition of male and female
During the judicial review, K also asked the government to revise the definitions of 'male' and 'female' in the PCCBR to include transgender people like himself.
According to Wednesday's judgement, Coleman said it should be the legislature, not the court, that gives the definition.
The Court of Final Appeal ruled in February 2023 that it was unconstitutional for the government to require transgender people to complete full sex reassignment surgery (SRS) before they could change the gender marker on their identity cards.
In 2021, the Equality Opportunities Commission (EOC), Hong Kong's equality watchdog, called for legislation to provide for protection against discrimination based on sexual orientation, gender identity and intersex status. However, the government or the EOC has yet to introduce any proposals.