Hong Kong judge rules in favour of transgender bathroom access

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HONG KONG — A Hong Kong judge on Wednesday ruled to strike down regulations criminalizing the use of bathrooms designated for the opposite sex, ruling in favour of transgender individuals’ rights to access public toilets matching their identity.

Judge Russell Coleman approved the judicial review of K, who was born a woman and identifies as a man, saying the regulations contravene an article of the city’s mini-constitution that stipulates all residents should be equal before the law.

But he suspended the declaration to strike down the regulations for a year to allow the government “to consider whether it wishes to implement a way to deal with the contravention.”

He said in the judgment that the regulations and “drawing the line of a person’s biological sex at birth create a disproportionate and unnecessary intrusion into the privacy and equality rights.”

The ruling marks another step forward in recognizing the rights of LGBTQ+ people in the Chinese financial hub. In recent years, the government has revised policies following activists’ wins in legal challenges.

Currently, only children under 5 years old accompanied by an opposite sex adult can enter a public washroom designated for the opposite sex. Those violating the rule face a fine of up to 2,000 Hong Kong dollars (about US$255).

K launched a legal challenge in 2022, seeking to expand the exemption to pre-operative transgender people who have been diagnosed with gender dysphoria and have a medical need to undergo the process of living in their identified gender. He argued that his constitutional rights were infringed by the prohibition against him using public toilets allocated for men, the court heard.

The Environment and Ecology Bureau said in an emailed statement that the government will carefully study the judgment and consult the Department of Justice on the appropriate follow-up action.

Quarks, a group serving transgender youth in Hong Kong, welcomed the ruling, urging officials to take immediate action to rectify what it called long-standing discrimination in the system.

“The ruling is not just an affirmation of transgender rights legally but also a big step forward for Hong Kong’s overall human rights development,” it said on Instagram.

In 2023, Hong Kong’s top court ruled that full sex reassignment surgery should not be a prerequisite for transgender people to have their gender changed on their official identity cards.

The next year, the government revised its policy to allow people who have not completed full gender-affirmation surgery to change their genders on ID cards as long as they fulfill certain conditions. The conditions include the removal of breasts for transgender men, the removal of the penis and testes for transgender women, and having undergone continuous hormonal treatment for at least two years before applying.

Applicants also have to continue their hormonal treatment and submit blood test reports for random checks upon the government’s request.

In April, activist Henry Tse, who won the legal battle in 2023 and received his new ID card reflecting his gender change last year, lodged a fresh legal challenge over the new requirements.