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From courtroom to restroom – the battle for transgender rights

Author: Christine

Transgender rights have become a hot topic in recent years, particularly the right of restroom access. The right to use a restroom, despite often unrecognised and uncelebrated, is a fundamental human right that needs to be protected by law. This article will first outline the current dilemma which most transgender persons face daily. It will then highlight the transgender legal issues that arise from Hong Kong’s current and arguably outdated ‘restroom laws’, and explore the possible way forward from legal and social perspectives.

Current Dilemma

Currently, a binary gender recognition system is applied in Hong Kong. In other words, there are only two options for the sex-entry on a Hong Kong identity card. If a transgender person wants to change the sex-entry, a gender-affirming surgery, including removal and construction of sex organ, is required. However, there can be many reasons why a transgender person may not opt for a gender-affirming surgery – such as a lengthy process to receive surgery in the public sector, high medical expenses in the private sector (either locally or overseas), or simply the fact that the extensive changes to their physical state is unnecessary for exploring their gender identity or provides no therapeutic value. In the recent Court of Appeal judgment of Q v Commissioner of Registration,[1] the Court recognised various forms of distress faced by transgender persons, especially the fear of using restrooms in public spaces and being questioned of using the “wrong” restroom.[2] Under the cisgender-oriented binary recognition system in Hong Kong, transgender persons’ rights are often neglected or dismissed – the sex entry on identity document and the design of public restroom are two epitomes of the rigid system.

For many transgender people, a simple question of figuring out which restroom to use can be a challenge. The current reality remains that a transgender person may feel uncomfortable or even unsafe entering either male or female restrooms, as unsatisfactory as that may be. This is especially so for a transgender person that is undergoing gender affirming process to change body shape and some sex characteristics. They may be confronted by other restroom users, or be perceived as having an ill intent, regardless of their sex entries on identity card. Consequently, transgender people may from time to time be asked to justify their choice of a particular restroom, leaving them to face potential legal consequences and mental distress.

Under these circumstances, the lack of legal guidance or protections places transgender people in a difficult position, where they may face embarrassment, confrontations or even expulsion from the restroom of their choice. This is particularly true for transgender persons who have not undergone a full gender-affirming surgery or changed the sex-entry on their identity card.

To avoid trouble and embarrassment, many transgender persons will use two stop-gap solutions, which are both not ideal. Their first option is to use a restroom for disabled persons (which are usually unisex). Their second option is to carry with them a medical document known as the “proof of real-life experience” (colloquially known as the “toilet letter”) as written evidence for using the restroom if confronted by security guards and police officers. For the former, there are usually very few accessible restrooms that are in the proximity of every building. Those restrooms are also often locked by their property management companies. For the latter, the toilet letter is not seen as proof of identity, nor does it have any formal legal effect. While transgender persons already face many forms of discriminations and challenges in their lives, lacking clear legal guidance in their restroom use further adds to their struggles.

Hong Kong’s “Restroom Laws”

As of today, Hong Kong does not have any law that regulates the use of sex-specific public restrooms. Q v Commissioner of Registration[3] referred to the relationship between the sex entry on identity cards and access to sex-specific public toilets, but did not give formal legal guidance on how a transgender person may choose a public toilet in a binary setting.[4] In general, it is not a criminal offence to enter an opposite-sex restroom, and it is unlikely that transgender persons will be convicted on the ground that they use the restroom of their gender identity. However, there are two legal mechanisms that complicate the picture.

Section 7 of the Public Conveniences (Conduct and Behaviour) Regulation (Cap.132BL) states the following:

(1) No male person, other than a child under the age of 5 years who is accompanied by a female relative or nurse, shall, in any public convenience, enter any part thereof which is allocated for the use of female persons.

(2) No female person, other than a child under the age of 5 years who is accompanied by a male relative or male nurse, shall, in any public convenience, enter any part thereof which is allocated for the use of male persons.

This is the only provision in Hong Kong law that mandates the segregation of sexes in public restrooms, but it only applies to public restrooms set up by the Food and Environmental Hygiene Department. Therefore, other restrooms in public spaces, such as those in shopping malls, are not regulated by this Ordinance. It is also notable that the definition of “male” and “female” is not provided in the legislation. Thus, it is unclear whether transgender male fall into the definition of “male”, and whether transgender female fall into the definition of “female”. This, again, serves as a reminder of Hong Kong’s rigid binary gender recognition scheme and the lack of clear legal guidance on transgender people’s access to restroom in public spaces.

The other regulation complicates the situation even more. Loitering is a commonly used offence to prosecute people who illegally enter an opposite-sex restroom for sexual harassment or voyeurism, because the definition of “common parts” includes any restroom in a building. Under section 160 of the Crimes Ordinance (Cap.200), a person commits an offence of loitering if:

3. …any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being.

The ordinance gives a wide definition to loitering, and an intention to commit a crime is not an element of the offence. For example, a transgender female entering a female public restroom can be committing a loitering offence simply due to other female users’ concern, even if they had no intent to cause harm. Paradoxically, if a transgender female uses a male restroom, she can also be seen as committing loitering if her presence concerns other male users. By causing this absurdity, the current laws are in fact depriving transgender persons of their restroom rights, instead of clarifying and protecting such right.

The Way Forward

The current legislative framework demonstrates how Hong Kong law has yet to recognise genders beyond the cisgender-oriented system. Setting up more genderless restrooms may be a solution to this dilemma, and indeed has become a new trend in many public areas. But it is arguable that Hong Kong’s outdated laws are not doing enough to promote this solution. Section 8 of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations (Cap.123I) requires all restaurants to provide a certain number of urinals and lavatory basins in sex-specific restrooms. However, there is no requirement of setting up unisex restrooms.

Hong Kong’s current ‘restroom laws’ are passive, and not proactive enough in protecting transgender restroom rights. It is important to give a clearer legal guidance on restroom access. This can be done by recognising the legal effect of the “proof of real-life experience” issued by a doctor – a document that certifies a person is undergoing a gender affirming process. Further, the law may play a more proactive role in promoting gender inclusivity.

Apart from the legal aspect, there can be other solutions from policy-making perspectives. Following the ruling and observations made by the Court of Final Appeal in W v Registrar of Marriages,[5] the Hong Kong government has established the Inter-departmental Working Group on Gender Recognition. The Working Group is tasked with looking into the current cisgender-oriented binary recognition system in Hong Kong, and making suggestions for a better gender recognition system. The government should also encourage people to set up more accessible and unisex restrooms by educating the public. There are various recommendations made by the United Nation and Equal Opportunities Commission – for instance, a comprehensive gender recognition legislation and education. By implementing these recommendations, we can promote the visibility of the transgender and gender diverse community.

Perhaps it is the time for Hong Kong to review its outdated restroom-related laws, as they are creating unfair treatment towards the transgender community. Restroom access should be a fundamental human right to be legally protected regardless of gender and sexual identities. Afterall, a threat to justice somewhere, is a threat to justice everywhere. Hong Kong’s legislatures should take the initiative to update the current restroom-relevant laws, in order to achieve a better tomorrow for the transgender community.

[1][2022] HKCA 172 [2]Ibid, at para 28 [3][2022] HKCA 172 [4]Ibid, at para 53 [5] [2013] 3 HKLRD 90


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