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| Court outlawed ban on use of opposite-sex public toilets |
A High Court judge has ordered that a law criminalizing the use by transgenders of public toilets designated for the opposite sex be struck down for violating the minority group’s equality and privacy rights.
In his landmark judgment handed down today, Judge
Russell Coleman ruled in favor of “X,” a transgender man who challenged the
city’s public convenience regulations, which prohibits anyone aged five and
above from using toilets allocated to the opposite sex.
The judge
said “drawing the line” of a person’s biological sex at birth results in a “disproportionate
and unnecessary” intrusion into privacy and equality rights, and contravenes the
Basic Law and Hong Kong’s Bill of Rights.
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But he
said it would not be appropriate for the courts to distinguish between a “female
person” and a “male person,” saying this should be a matter for legislation.
He gave the
government up to a year to come up with a solution to end the contravention.
“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,” Judge Coleman said.
"This is a matter of the line-drawing, which seems
to me to be a question for the government or legislature to address."
The government was given 28 days to appeal the
decision.
"K"
had sought to amend the wording of the Public Conveniences (Conduct and
Behaviour) Regulation, which bans people aged five or above from facilities
allocated to their opposite sex. Offenders can be fined up to $2,000
on summary conviction.
K was diagnosed with gender dysphoria in 2017. When
he launched the legal challenge in 2022 he was holding a “gender identity letter”
from a doctor that certified he is to be treated as male in social contexts,
and that using gender-specified facilities is an important part of his
transition.
K argued that his constitutional rights were violated
by the prohibition against him using public toilets designated for men.
He asked for the regulation to be changed so pre-operative
transgender people who have been diagnosed with gender dysphoria like him can use
toilets that correspond to their preferred gender.
The
government opposed his claim, arguing that public toilet access rules protect
other users' rights, including privacy and security, as well as societal expectations.
The decision
marks another victory for groups advocating for the rights of LGBTQ+ people in
Hong Kong, including a landmark ruling in 2023 that said that full
reassignment surgery should not be required before transgender people can have
their gender changed on their official identity cards.
