Public toilet regulations barring transgender men in transition from male toilets unconstitutional, High Court rules; judge declines to redraw gender boundaries
公廁規例禁跨性別男子過渡期間進入男廁 高院裁違憲 惟拒絕自行劃性別界限
A transgender man identified as K had not completed gender reassignment surgery and his identity card still stated that he was female, although he had been issued a “toilet paper”. However, under sections 7 and 10 of the Public Toilets (Conduct and Behaviour) Regulations, he remained prohibited from entering male public toilets. K sought a judicial review, challenging the constitutionality of the regulations and asking the court to broaden the definitions of “male” and “female” in the regulations so that transgender people could use public toilets according to their gender identity during gender transition. In a judgment handed down today (23rd), High Court Judge Anderson Chow ruled that the regulations, and drawing the distinction according to a person’s biological sex at birth, constituted excessive and unnecessary interference with transgender people’s rights to privacy and equality. He also ruled that the regulations violated the right to equality protected by Article 25 of the Basic Law and sections 1(1) and 22 of the Hong Kong Bill of Rights, as well as the right to privacy protected by section 14. However, the judge rejected K’s request to broaden the legal definitions of “male” and “female” in the regulations to include transgender people undergoing transition, saying the issue was more appropriately dealt with by the legislature.
一名代號為K的跨性別男子因未完成性別重置手術，身份證仍顯示為「女性」，但獲發「廁所紙」，惟按《公廁(行為及舉止)規例》第7及10條，他仍被禁止進入男性公廁。K提出司法覆核，質疑有關條例違憲，並要求法庭擴闊規例中對「男性」及「女性」的定義，讓跨性別人士在性別過渡期間，可按其性別認同使用公廁。高院法官高浩文今（23日）頒下判決，裁定有關條例以及基於一個人出生時的生理性別來劃分界線，是對跨性別人士的私隱及平等權利構成過份及不必要的侵擾，並裁定條例違反《基本法》第25條、《香港人權法》第1(1)條、22條所保障的平等權，以及第14條所保障的私隱權。不過，法官拒絕應K的要求擴闊條例中「男性」和「女性」的法律定義至正在過渡期的跨性別人士，因為相關問題更適合由立法機關來處理。