K v. SECRETARY FOR ENVIRONMENT AND ECOLOGY AND ANOTHER

HCAL 646/2022

[2025] HKCFI 3170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 646 OF 2022

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JUDGMENT

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A.  Introduction

1.  At what point does someone born a biological “female person” become a “male person” so as to permit him to enter, without fear of criminal prosecution, that part of any sex-segregated public convenience allocated for the use of male persons? Or perhaps to put it another way: where in this context is the line drawn between a “female person” and a “male person”, and who should draw that line?

2.  Those questions arise in this case because of the impact of the provisions in the Public Conveniences (Conduct and Behaviour) Regulation Cap 132BL (“PCCBR”) on the factual circumstances of the Applicant, K (who has been granted anonymity for the purposes of these proceedings).

3.  The main material provisions of the PCCBR are regulations 7, 9 and 10, which provide as follows:

7. Segregation of the sexes

(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.

9. Power to direct persons to leave public conveniences

The attendant of any public convenience may direct any person whom he, or any of his assistants, finds to be contravening any of the provisions of this Regulation to leave such public convenience.

10. Offences and penalties

Any person who—

(a) contravenes section 5, 6, 6A or 7; or

(b) fails to comply with any direction given to him under the provisions of section 9,

shall be guilty of an offence and shall be liable on summary conviction to a fine at level 1.

4.  Hence, the PCCBR makes it an offence for a “female person” to enter any part of any public convenience which is allocated for the use of “male persons” (and vice versa). For most people, knowing which toilet to use without fear of prosecution poses no problems. That may not be so for a person like K, who brought this application at a time when he was a pre-operative, female to male transsexual person.

5.  Though K was born female, I shall refer to K using masculine pronouns.

6.  As stated, K was born biologically female, but has since an early age identified as male. He was diagnosed with gender dysphoria in 2017, and (after self-treating with hormones from the age of 19) has been receiving medical treatment, including hormonal treatment, for gender dysphoria at the Gender Disorder Clinic of Prince of Wales Hospital (“PWH”). At the time of bringing the application, K was undergoing the process of ‘real life experience’ (“RLE”), in which a person seeks consistently to live his or her life in a gender role that is congruent with his or her identified gender (in K’s case, as a male). To facilitate his treatment, the doctor has issued K a ‘Gender Identity Letter’ (“GID Letter”), which certifies that K has been undergoing RLE and is to be treated as a male in social contexts and that using gender-specific facilities is an important part of the treatment and transition. In other words, part of K’s RLE would include using the men’s public toilets, as corresponding to his identified gender.

7.  K asserts that his constitutional rights are infringed by the consequent prohibition against him using public toilets allocated for male persons. Regulations 7 and 10 of the PCCBR are argued to be unconstitutional, on the basis that they contravene the right to equality/freedom from discrimination under Article 25 of the Basic Law (“BL 25”) and Articles 1(1) and 22 of the Hong Kong Bills of Rights (“BOR 1(1)” and “BOR 22”), and the right to privacy under Article 14 (“BOR 14”).

8.  K asks for a ‘remedial’ construction of the term “male” in regulation 7 of the PCCBR so that it includes persons such as himself, being (as it was put in the skeleton submissions filed for him) “a trans-man undergoing RLE”. In the Amended Form 86, K formally sought declaratory relief that there be a remedial construction of regulation 7 to the effect that the word “male” should be read as including pre-operative, female-to-male (“FtM”) transsexual persons who have met the two criteria of (1) being diagnosed with gender dysphoria and (2) having a medical need to undergo RLE in the male gender. Similarly, it is said that the word “female” should also be read as including pre-operative, male-to-female (“MtF”) transsexual persons who satisfy the equivalent same two criteria.

9.  It is important to recognise at the outset that K does not challenge the constitutionality of sex-segregated public conveniences. Rather, he makes a systemic constitutional challenge to the impact of the PCCBR on him (and persons in a similar position). In effect, accepting that there is a proper and unchallenged binary division between a “female person” and a “male person” for the purposes of the use of public conveniences, K asks that he be considered to be on the “male person” side of the line denoting that binary division. It has also been stressed that, in these proceedings, K does not seek that he should be regarded as a man generally, nor does he challenge the sex stated on his Hong Kong Identity Card (“HKID”).

10.  The first Putative Respondent in these proceedings is the Secretary for Environment and Ecology, being the authority authorized to make the PCCBR under section 35 of the Public Health and Municipal Services Ordinance Cap 135. The second Putative Respondent is the Secretary for Justice, as a result of the constitutional challenge. It is convenient to refer to the Putative Respondents together as the Government.

11.  Though at the time of the application K had been undergoing hormone treatment and was waitlisted for sex reassignment surgery (“SRS”) on the basis that he was well adjusted to his social role as the male gender in most social contexts, he retained female genitalia and his HKID identified his “sex” as female.

12.  Under the existing law in Hong Kong – and the policy then adopted by the Commissioner for Registration – K would only be able to seek a change to his HKID after completing full SRS. However, a decision of the Court of Final Appeal (“CFA”) given after the oral argument in this case moved away from that position, and that decision and its consequences will need to be taken into account. That case is Q and Tse Henry Edward v Commissioner of Registration (2023) 26 HKCFAR 25 (“Q(CFA)”).

13.  I heard the oral argument at a ‘rolled up’ hearing of the application for leave to apply for judicial review and the substantive application for judicial review.

14.  K was represented by Mr Timothy Parker SC of Counsel. The Government was represented by Ms Bonnie Cheng and Mr Harrison Miao of Counsel. Both sides had also filed prior written submissions.

15.  At the conclusion of the oral argument, I reserved my decision. As a result of the expected CFA decision in Q(CFA), I also directed further written argument to be provided after the Q(CFA) decision had been made, and had been considered by the parties. Those submissions were duly provided, and identified the necessary shift in arguments as a result of the CFA unanimously overturning the decision of the Court of Appeal in the same case, Q v Commissioner of Registration [2022] 1 HKLRD 803 (“Q(CA)”).

16.  This is my Judgment.

B.  Gender Dysphoria, RLE and GID Letter

B.1  Gender Dysphoria

17.  In the vast majority of people, the various indicia of psychological and biological factors comprising the sexual identity of an adult are all congruent. They identify the individual as either male or female. However, people suffering from gender identity disorder or gender dysphoria of transsexualism possess the chromosomal and other biological features of one sex, but profoundly and permanently identify as a member of the other sex.

18.  It is well-established that transsexualism is a condition requiring medical treatment. The World Health Organisation classifies transsexualism as a form of gender identity disorder involving a desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomical sex, and a wish to have surgery and hormonal treatment to make one’s body as congruent as possible with one’s preferred sex.

19.  As it was put in Q(CFA) at §4, gender dysphoria is a medical condition involving much distress and discomfort arising out of the discordance which persons diagnosed experience between the sex assigned to them at birth and the gender with which they intrinsically identify. For myself, I am not sure it is quite accurate to talk about a sex (male or female) being “assigned” to a person at birth, as if a person might be born with no sex but is then assigned one. However, it has perhaps become a convenient and common way of making reference to a person’s biological sex at birth (and corresponding gender) – and in so far as I use that word I shall use it in that sense.

20.  It is also worth recognising that, although the two terms have often been used interchangeably, in the context and for the purpose of identity “sex” is often distinguished from “gender”. It seems that somewhere along the linguistic evolutionary line the word “gender” has in part lost its meaning connected to and corresponding more or less to distinctions of “sex” (or, in grammar, the absence of sex), and has moved through being a euphemism for the sex of a person to becoming a potentially entirely separate concept, in effect a social construct.

21.  As it was put in by the Court of Appeal in Q(CA) at §10:

(1)  “Sex” refers to the biological indicators of male and female (understood in the context of reproductive capacity), such as sex chromosomes, gonads, sex hormones, and non-ambiguous internal and external genitalia;

(2)  “Gender” refers to the culturally and socially specific expectations of behaviour and attitude, mapped onto men and women by society, including self-definition, that is to say what a person recognises himself or herself to be.

(3)  Whilst a person’s sex is determined at birth, it is not necessarily the case for his or her gender.

22.  The precise causes of gender dysphoria are not known, but the medical consensus is that it is a biological condition, and not a lifestyle choice. The distress and discomfort from gender incongruence may be of varying degrees, and may result from the incongruence between the individual’s gender identity and the biological sex at birth as recognised by others in social interactions (social dysphoria) and/or from the mismatch between the person’s gender identity and bodily sex characteristics (physical dysphoria).

23.  Gender dysphoria has been the subject of some discussion in other recent cases and decisions, in particular the Q case at all levels. But there was also expert evidence filed for the purpose of this case. K relied on the evidence of Dr Wong Chun Bun Gordon, a doctor in private practice, specializing in psychiatry. The Government relied on the evidence of Dr Chow Lai Yin, a government doctor working in the Gender Identity Clinic of PWH.

24.  There is not much dispute between Dr Wong and Dr Chow as to the assessment of gender dysphoria, which has apparently become formalized or standardized within the medical profession over time. Both said that a psychiatrist will assess whether a person has gender dysphoria by referring to the diagnostic criteria according to the Statistical Manual of Mental Disorders, 5^th edition (“DSM-5”). These criteria include a marked incongruence between one’s experienced gender and assigned gender, of at least 6 months’ duration, as manifested by e.g. a marked incongruence between one’s experienced gender and primary and/or secondary sex characteristics, a strong desire to be rid of one’s primary and/or secondary sex characteristics, a stronger desire for the primary/secondary sex characteristics of the other gender, a strong desire to be of the other gender or to be treated as the other gender, etc. The criteria also include whether the condition is associated with clinically significantly distress or impairments in social, occupational or other important areas of functioning.

25.  Dr Wong said that the DSM-5 guidelines are designed as a set of diagnostic criteria for clinical diagnosis, but should not be approached as a checklist. The assessing psychiatrist’s clinical judgment and experience remain important in diagnosing gender dysphoria using the DSM-5 guidelines.

26.  Dr Wong also said that if gender dysphoria is left untreated, and the individual continues to live as a person with an assigned gender that is different to their identified gender, there is an elevated risk of depression and/or other associated mental health conditions. One medical study describes the psychological harm caused by repeated “misgendering” (where a transgender person is addressed or treated as a person of their “assigned” gender instead of their experienced or identified gender) as “death by a thousand cuts”. From a clinical standpoint, transgender persons are a particularly vulnerable group with significantly higher suicidal rates and mental health problems than the general population. Dr Wong referred to a study which shows that 67% of the transgender population in Hong Kong reported a history of suicidal ideation and 20.8% had attempted suicide.

27.  Treatment is available to assist people with gender dysphoria to explore their gender identity and find a gender role that is comfortable for them. Treatment is individualised, and what helps one person alleviate gender dysphoria might be different from what helps another person. Treatment is approached on a multi-disciplinary basis: see the discussion in Q(CFA) at §§12-18.

28.  In summary, central to the treatment of gender dysphoria is to affirm that person’s identified or experienced gender. Treatments may include: non-medical treatments, such as supportive counselling and voice training; hormonal therapy (such as taking sex hormones of the identified gender); and surgical treatments, such as removal of the original sex organs (breasts, ovaries, uterus, penis and testes) and the construction of the sex organs of the identified gender (artificial penis and vagina). These treatments help the person to transition to their identified or experienced gender. These treatments, in the order as set out above, run from the least intrusive to the most intrusive, and from the reversible ones to the irreversible.

29.  Dr Wong said that not all people with gender dysphoria wish to undergo all transitioning procedures available. Some people only wish to have hormonal therapy, some want “top surgery” and whilst others want “bottom surgery” as well. As also referred to in Q(CFA) at §4, having full SRS may not be medically necessary to treat a person’s gender dysphoria or to complete the transition to his or her identified gender from a clinical standpoint.

B.2  RLE

30.  Both Dr Wong and Dr Chow gave evidence that “real life experience” (i.e. RLE) is part of the treatment that may be included in the person’s transitioning process from biological sex at birth to his or her identified gender. K stated in his evidence that undergoing RLE was “a precondition” to his referral for SRS.

31.  RLE entails living in the identified gender consistently, on a day-to-day basis and across all settings of life, e.g. work, family and social. In the process, a transgender person will express his gender as he wishes. For a FtM person, the process may include wearing masculine clothes, being addressed with male pronouns, and being treated as male generally. Living and being received by society in the identified gender itself helps to redress the incongruence between the person’s biological sex and the identified gender.

32.  Dr Wong said RLE also serves another function – to ensure that the individual is well-adjusted to living in the identified gender before any irreversible treatments are performed.

33.  In this regard, Dr Wong suggested that the prohibition in regulation 7 of the PCCBR might diminish the effectiveness of the RLE as a medical treatment – entering and using male public toilets being an integral part of the RLE for a transgender man. As Dr Wong put it, it might diminish the ability to have the full spectrum of experiences that come with living in the identified gender, which is the purpose of RLE. It might also compel transgender people to use public toilets corresponding with their assigned (i.e. birth) gender, undermining and invalidating their core identity, and instead emphasising the incongruence which lies at the heart of gender dysphoria. It might also generate feelings of being discriminated against.

34.  It is apparently in those circumstances that many trans people choose not to use public conveniences at all, due to fear, the threat of harassment, and to avoid having their gender identity invalidated or undermined. I expressly acknowledge, but do not think it necessary to rehearse in this Judgment, the evidence filed which supports that statement. This is also in the context in which the transgender population may already be vulnerable, and subject to co-existing mental health problems greater than faced by the general population.

35.  Since part of the function served by RLE is to assess if the individual is suitable to proceed to irreversible treatments, RLE may naturally be expected to take place before any top or bottom surgery has been performed. It also means that a person undergoing RLE may not in due course continue along the path to transition, or any particular form of transition.

36.  But it is also of importance to note that RLE could apparently also take place before any hormonal therapy has been performed. Dr Chow said hormonal treatment and social transitioning (i.e. RLE) are usually in conjunction with each other, but sometimes one may precede the other. Dr Wong did not expressly say so, but that is implicit in his evidence. In any event, the parties basically do not dispute that real life experience as a stage of treatment or transitioning could precede hormonal treatment. The point is that a person who has been certified by a doctor as having the medical need to undergo real life experience could have retained all the biological and sexual characteristics of his and her assigned gender at birth, because he or she might not have taken any hormonal therapy or surgical procedures.

37.  As can be imagined, a transgender person could of course live and project himself or herself in the identified gender in his or her day-to-day life without being told so by a psychiatrist. In that sense, a transgender person could undergo RLE without having to go to a doctor.

38.  Mr Parker made it clear that K is not seeking or arguing for “self-certification” of gender. But, it seems to me to be obvious that by engaging in RLE – and whether with or without medical approval or direction – a person is at least making an intentionally public self-declaration as to his or her identified or experienced gender.

B.3  GID Letter

39.  As I understand it, the medical need to undergo RLE is to be certified by a psychiatrist and evidenced in a document issued by that psychiatrist. The relevant document is a Gender Identity Letter (i.e. GID Letter).

40.  K’s GID Letter was provided to the Court. The letter is issued by the Hospital Authority and signed by a Dr Kam from the Gender Identity Disorder Clinic of PWH. The letter reads:

The above-named is a transman with Gender Dysphoria and has been treated in our clinic since Nov 2019. Real life experiencing in this desired gender role, such as being addressed as Mr., being treated as a male individual in social context and using gender-specific facilities is an important part of the treatment. Please kindly facilitate the treatment and transition of the patient if possible.

41.  The GID Letter is in English and without an expiry date. The content suggests that the intended reader is those who might query the transgender person’s gender (or sex) in daily life. Though not informed whether the GID Letter is an ubiquitous document with established and formalized format and content, it appears from the evidence that documents of similar content are not new to medical professionals in this area.

42.  Dr Wong said the decision to issue a GID Letter (which he referred to as a “RLE Certificate”) is not a decision to be taken lightly by a psychiatrist. He said a specialist in psychiatry has the duty to conduct a comprehensive assessment of a transgender person before the issuance of a RLE Certificate. These assessments include, but are not limited to: diagnosing the person with Gender Dysphoria according to the established and objective criteria in DSM-5; ascertaining a determination to live in the identified gender for life; ascertaining that preparations have been made for living in the identified gender for life (such as making family, job and social changes for the new identity); ascertaining that preparations have been made for the anticipated challenges of living in the identified gender; and also assessing the existence of an adequate social support network.

43.  Dr Wong emphasized that the diagnosis of gender dysphoria will not lead to the immediate issuance of a GID Letter. Such a letter would only be issued when that individual is prepared for the transition in each of the domains listed above. Implicit in Dr Wong’s evidence is that RLE could be prescribed, or that the need to have RLE could be certified, before the individual has taken any hormonal treatment or surgical procedures, neither of which are preconditions to the issuance of GID Letter.

44.  As stated, between real life experience and full SRS, there are other possible lines of treatment such as hormonal treatments or partial surgery. For the determination of this case, it may be necessary to explore whether the evidence and submissions could exclude the possibilities that a line somewhere between RLE and full SRS could be constitutionally drawn by reference to the proportionality test.

45.  Before leaving the issue of gender and gender dysphoria, it is also helpful to note – as the Court of Appeal did in Q(CA) at §31 – that gender identity is one of the most crucial identities of a person. It concerns who people are and what sort of people they identify with; directs their personal development and behaviour, governs their relationship and interaction with others and the outside world; underpins most of their societal arrangements, and in many contexts, confers legal status and affects their rights and interests. This is why it was recognised – and is common ground here – that gender identity falls within the scope of protection of privacy under BOR 14. Privacy is a concept inherently linked to a person’s dignity.

46.  It is also common ground that the right to equality or to be free from discrimination under BL 25, BOR 1 and BOR 22 may extend to gender identity.

C.  HKID Cards

47.  It was said to be common ground between the parties at the hearing that, for the purposes of the PCCBR, “male” and “female” have the meaning of the biological sex of the person at birth.

48.  It may be that it was also put differently as being common ground that “male” and “female” are defined by reference to a person’s biological sex at birth, subject to change of the sex marker on the HKID. Indeed, in Mr Parker’s skeleton submissions, having identified that it is an offence for a person to use a public convenience designated for members of the opposite sex, he suggested that “sex” is defined as the sex shown on the person’s HKID card – though this may have been referring only to the way the law was implemented in practice.

49.  As the law or policy then stood, persons such as K could not change the HKID card unless and until completion of full SRS, which is why the PCCBR was said to preclude pre-operative trans people from using gender-appropriate conveniences notwithstanding its certified medical need.

50.  Ms Cheng also addressed that point when saying the focus should be on the practical impact on the person making the constitutional challenge, here by reference to the line drawn on the basis of the “sex” marker or “gender marker” on the HKID card. She submitted that whilst the correct interpretation of regulation is that “male” means the biological sex at birth, the use of the HKID “leavens” the risk of prosecution by the police through the practice of checking the sex marker.

51.  I can return later to the correct interpretation of “male” and “female” in the PCCBR. But, because much of the argument in this case related to the possible use of the HKID card, it is helpful to traverse some aspects of the HKID card. It was also, of course, the HKID card which was the focus of consideration in the Q case.

52.  HKID cards are dealt with under the provisions of the Registration of Persons Ordinance Cap 177 (“RPO”), and the Registration of Persons Regulations 177A (“RPR”).

53.  Under regulation 3 of the RPR, every person who is not an exempted or excluded person must report to a registration officer and apply to be registered and apply for an identity card.

54.  Indeed, as was noted in Q(CFA) at §2, every Hong Kong resident over the age of 11 is required to register for an HKID card. Failure to produce a HKID card when required to do so by a police officer or member of the Immigration Service is an offence. As is obvious and was also noted, production and inspection of HKID cards are ubiquitous, not just in dealings with government officials, but routinely in a wide variety of everyday transactions as a means of verifying a person’s identity.

55.  Put bluntly, the HKID card is intended to be used, and is routinely used, to show that the person holding it can be verified to be – i.e. it is true that he or she is – the person he or she claims to be.

56.  Under regulation 4(1)(b) of the RPR, a person applying for registration under regulation 3 for an identity card must, amongst other things, furnish to a registration officer particulars of (i) the full personal name and surname of the applicant, (v) the date of his birth, and (vi) his sex (as numbered in the paragraph). Indeed, as was further noted in Q(CFA) at §3, on its face the HKID contains the holder’s photograph and states the holder’s name and date of birth and whether the holder is male or female.

57.  Notwithstanding that the relevant part of the RPR requires the applicant to furnish particulars of his “sex”, the CFA described the latter as a “gender marker”. The CFA described it as a feature intended to function as an “identifier” (quotation marks in original), helping to verify the identity of the person producing the card as its holder. But the CFA stressed that the “gender marker” does not signify recognition of the holder’s sex as a matter of law. It merely operates as an element of an identification document.

58.  The CFA footnoted sections 9 and 7(2)(j) of the RPO and regulation 11A of the RPR – which I note respectively relate only to a general restriction on the use of particulars and records kept on particulars except for the purpose of enabling verification of identity of individuals, and the power to make regulations to provide for the inspection of identity cards, viewing of information re-produced from data stored in chips embodied in identity cards, and matching of fingerprints for verification of identity.

59.  The CFA also footnoted a passage of evidence in which a Security Bureau officer said:

[The gender marker] does not connote any general or formal or legal recognition of the person’s sex or gender as such. An HKIC serves the fundamental purpose of identifying the holder as a particular individual, with certain details or particulars put in as identification features of the individual such as the name, date of birth and sex.

60.  With respect, I confess to seeing some intellectual tension between (a) the idea that the HKID “does not signify recognition of the holder’s sex as a matter of law” and (b) the idea that the HKID is routinely used as a means of “verifying” that person’s identity in part by reference to that person’s sex, as well as (c) the idea that a person’s sex or gender is a recognized core element of their identity.

61.  For myself, I would think that each of a person’s name and date of birth (hence age) and sex (or gender) are fundamental elements – individually as well as cumulatively – of that person’s identity, and the statement of those matters on the HKID is precisely to identify and enable verification of the person by reference to those matters because they are correct (at least as a matter of fact). Indeed, under regulation 19 of the RPR, it is an offence to furnish false particulars.

62.  Of course, it can be acknowledged that the entry of the particular of “sex” – or the “gender marker” – does not of itself create or establish a person as male or female as a matter of law (or as a matter of fact, if that is said to be different). But, there must be at least some room for tension in the idea that it does not even recognise that person’s status as a male or female as a matter of law. But perhaps that is simply the result of the division which has opened up between the meanings of “sex” and “gender”, and the concept/recognition that it can change – and that there may be a divergence between biological sex at birth and gender.

63.  But, if the sex or gender marker on the HKID card does not signify recognition of the holder’s sex or gender, it might be asked how it helps identification, what the point is of ever changing it, and what is being reflected in any change made. This is also in the context where regulation 18(1)(a) of the RPR places a duty on holders to make a report to registration officer whenever the HKID card particulars previously submitted “have become incorrect”, and where failure to do so without reasonable excuse is an offence under regulation 19. I have in mind that it is necessary to change name marker on a HKID card if the person holding that card legally changes his name.

64.  But, leaving those possible tensions aside, it has been the Government’s consistent position – endorsed by the Courts up to and including the CFA – that the HKID card’s record of the cardholder’s sex does not actually connote any formal or legal recognition of that person’s sex or gender as such. The logical consequence of that position is that the HKID card is of no practical benefit or value in establishing whether a person is legally “male” or “female”.

65.  As will be seen below, this causes real practical problems in relation at least to both (1) the Government’s argument on how the PCCBR is operated in fact, and (2) the Government’s offered remedial construction of regulation 7 of the PCCBR when it comes to the potential grant of relief in these proceedings.

D.  Legal Principles

66.  The key legal principles can be set out with some brevity.

67.  The meaning of words in a legislative provision – here the meaning of “male” and “female” in the context of the PCCBR – is a matter of statutory construction: see W v Registrar of Marriages (2013) 16 HKCFAR 112 at §50.

68.  As is trite, the Court looks at the ordinary meaning of the word as well as the legislative context and purpose. The statutory context will be taken in its widest sense, including other provisions and history of the provisions. But the Court does not ignore the actual words used in the statute or distort their plain meaning.

69.  The statute draws the line between those who are entitled to a benefit and those who are not, the Court is entitled to take into account the clarity of the line and the administrative convenience of implementing the underlying policy or scheme: see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §73.

70.  The approach to be followed in a constitutional challenge is well-established. The Court will first examine whether any relevant constitutional right is engaged and whether the targeted legislation restricts the enjoyment of that right. If so, the burden shifts to the respondent to demonstrate that the restriction on rights is both (1) prescribed by law and (2) proportionate: see HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at §29. Proportionality is assessed by reference to the well-established four-stage proportionality test expounded in Hysan Development v Town Planning Board (2016) 19 HKCFAR 372.

71.  A similar approach applies in the context of a discrimination challenge, except that the relevant two questions are (1) whether there is differential treatment, and if so (2) whether the difference in treatment is justified: see QT v Director of Immigration (2018) 21 HKCFAR 324 at §§81-83, and Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127 at §19. The burden of justification rests on the Government.

72.  The two questions are intrinsically bound up together. As put by Lord Nicholls of Birkenhead in R (on the application of Carson) v Secretary of State for Works and Pensions [2005] UKHL 37 at §3:

…the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometime the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may be best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.

73.  There are three commonly regarded types of discrimination:

(1)  direct discrimination: where the complainant receives unfavourable treatment compared with persons in a relevantly similar situation;

(2)  indirect discrimination: where an ostensibly neutral criterion operates to the significant prejudice of a particular group;

(3)  Thlimmenos discrimination: where the complainant disadvantageously receives the same treatment as persons in significantly different situations.

74.  The principle of equality is about like cases been treated alike, and unlike cases which should be treated differently. The law does not treat differential treatment between two groups of persons as discrimination if there is sufficient relevant difference between them to warrant the differential treatment. Hence, if the two groups of persons are not in comparable situations, no question of discrimination arises as the law does not require them to be treated identically. However, if they can be regarded as to be in comparable situations, there would be prima facie discrimination unless the differential treatment can be justified under the proportionality test.

75.  On the comparability issue, I agree with Mr Parker that transgender people undergoing RLE (i.e. those in K’s situation) are not so obviously and differently situated from cisgender males such that excluding K (and those in his situation) from accessing the male public toilets should be treated as differential treatment for people in relevantly similar situations. At the hearing, Ms Cheng said she would not object for the Court to go straight to the four-stage proportionality test.

76.  To this end, the constitutional challenge based on both the privacy right and equality could be analysed through the four-part proportionality test. Any separate assessment of discrimination likely adds little to the analysis.

77.  Further, in the particular context where core rights are engaged, I accept that the appropriate standard of review is towards the ‘reasonable necessity’ end of the spectrum of standard of review, meaning that the margin of discretion is narrow.

E.  Meaning of “male” and “female”

78.  The words “male” and “female” are not defined in the PCCBR, nor in its primary legislation, the Public Health and Municipal Services Ordinance Cap 132. Nor are those words relevantly defined in the Interpretation and General Clauses Ordinance Cap 1.

79.  I have already pointed out that it was common ground between the parties at the hearing that, for the purposes of the PCCBR, “male” and “female” have the meaning of the biological sex of the person at birth.

80.  I agree. First, I think that is the obvious and natural meaning of the words.

81.  Further, the PCCBR were drafted and came into force in 1960 or 1961, at a time when no one would have had in mind the societal or other changes arising from the question of transgenderism or transsexualism. At that time there would have been likely no debate, and likely no conception of any need for debate, as to the meaning of the words “male” or “female”. It was also a time prior to the creation of HKID cards in the form which they now bear (though there had been various forms of HKID documents/cards since 1949, and the initial cards had no “sex” marker).

82.  I have considered whether any assistance in interpretation can be found in regulation 9, which (as set out above) empowers the attendant of any public convenience to direct any person whom he, or any of his assistants, finds to be contravening any of the provisions of this Regulation to leave such public convenience. I suppose it might be said that – as has apparently been the practice adopted – the use of the sex marker on a person’s HKID card makes it apt to think that the word “male” or “female” must have the meaning of whichever is shown by the sex marker on the person’s HKID card. But that also is problematic if the sex marker says nothing, even by way of recognition, of the person’s sex or gender as a matter of law.

83.  Of course, this meaning agreed of “male’ and “female” as the biological sex at birth means that even a person who has had full SRS and had the sex marker of the HKID card altered to reflect the result would still commit the offence under regulation 10 by entering a public convenience of the sex shown by that sex marker, and could only avoid committing the offence by entering the public convenience which is the opposite to the sex marker, and likely the opposite to all outward appearances.

84.  Once this is recognized, it may be thought that the question of any infringement of rights or other discrimination is fairly readily answered.

F.  The Original Contest / Arguments

85.  Though to an extent overtaken by the decision in Q(CFA), it remains relevant to consider the contest between the parties, and their competing arguments, as originally put forward on the basis where there was only the Court of Appeal’s decision in Q(CA).

86.  It is convenient to start with the position advanced on behalf of the Government by Ms Cheng. She submitted that the segregation of sexes in public conveniences under the PCCBR does not discriminate against pre-operative transgender persons, but serves to protect important public interests and other users’ rights including privacy, security and societal expectations. Such matters could only be achieved through “bright line” distinctions between different users of public conveniences.

87.  She submitted that the use of the “sex” marker on a transgender person’s HKID card, which (at the time of argument) could be changed only upon proof of completion of SRS, to control access to gender-specific public services including public conveniences is proportionate, as was held in Q(CA). Ms Cheng submitted that access to public conveniences was as a matter of fact or practice controlled by reference to a person’s HKID. This was because the sex marker on the HKID is sufficiently clear, certain, objective and readily available to achieve the statutory aims. She relied in particular on passages from Navarro v Commissioner of Correctional Services [2018] 4 HKLRD 38, for example at §§87, 92, 97-98 and 192, and Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §73.

88.  In any event, Ms Cheng submitted, the particular impact on a transgender person of not gaining access to public conveniences for his preferred gender must be assessed against the fact that such access is only one aspect of his RLE, and that in addition to public conveniences not operated by the FEHD there are available other non-gender-specific options, such as ‘universal toilets’ (“UTs”) or ‘accessible unisex toilets’ (“AUTs”). Ms Cheng pointed to the Government’s evidence that, as of September 2022, there were 397 AUTs and 11 UTs out of the 805 public toilets maintained by the FEHD, namely around 50% of the public toilets subject to the PCCBR.

89.  As regards any alleged discrimination, Ms Cheng submitted that:

(1)  No direct discrimination is involved, because it is the physical differences between K and cis gender men that impact on the sensibilities of other users, giving rise to valid and recognise concerns over privacy and security. Hence, a person should be treated as relevantly similar to other persons who possess the genitalia of the same biological sex. Dividing users into two groups in accordance with their biological sexes and physical sexual attributes creates groups both of which would include transgender persons, so that all preoperative transgender persons are treated in the same way in relatively similar situations.

(2)  No indirect discrimination is involved because transgender persons have the option of using gender-neutral public conveniences, and even if they may choose not to undergo SRS, they are not barred from completing SRS and using their preferred public conveniences.

(3)  No Thlimmenos discrimination is involved because, in so far as use of public conveniences is concerned, preoperative transgender persons do not occupy significantly different situation from cis gender persons of the same biological sex. Therefore there is no discrimination involved in subjecting them to the same treatment.

90.  As to Mr Parker’s reference to reliance on certain decisions of the US Courts (see below), Ms Cheng pointed out by reference to other decisions that the US Courts do not speak with one voice. Though submitted that the US authorities are rooted in their own constitutional traditions and are highly sensitive to local cultural and social context, and that the principal consideration in the present proceedings must be the circumstances of Hong Kong: see Secretary for Justice v Wong Ho Ming [2018] HKCA 173 at §56.

91.  Ms Cheng heavily relied on the fact that both the Court of First Instance and Court of Appeal in the Q case had accepted the constitutionality of using the sex marker on a transgender person’s HKID card to control his right of access to public conveniences (and she provided some detailed analysis of the relevant findings). She submitted that the principle of sex segregation seeks to protect important public interests and legitimate aims – being those of privacy, security and social norms and cultural expectations, and that there was a logical rational connection in that the implementation of the PCCBR measures can reasonably be expected to contribute towards achievement of those aims.

92.  Ms Cheng referred to the Inter-Departmental Working Group on Gender Recognition Consultation Paper: Part 1 on gender recognition (“IWG”), in particular at §§6.41-6.45 and 6.83-6.88.

93.  As to the overall proportionality and balance, Ms Cheng emphasised that the Government does not seek in any way to trivialise the problems and difficulties faced by transgender persons, but submitted that the impact of the PCCBR on transgender persons must be viewed in its proper context. She also submitted that respect for an individual’s privacy will be narrower when it is brought into contact with public life or is in conflict with other protected interests. Further, the right to privacy is not absolute and may be subject to limitations, where the protection afforded by BOR 14 is against “unlawful” or “arbitrary” interference with privacy.

94.  She accepted that the standard of scrutiny was that of “no more than necessary”, but that meant only no more than reasonably necessary. The Court may disallow the impugned measure if a significantly less intrusive and equally effective measure is available, but the impugned measure need not be the least intrusive method or result in the least interference. She submitted that, this case, no other means – other than those adopted in practice by reference to the HKID card – are significantly less intrusive but equally effective. Medical certification of gender dysphoria and the need for RLE would not alleviate the privacy and security concerns, and there is no evidence that there is a universally or commonly accepted form of RLE, where the assessment criteria turns on a whole host of evaluative criteria. It is neither fair, reasonable nor practicable to expect enforcers of the PCCBR to have the necessary time, knowledge or expertise to verify, interpret or review certificate such as K’s own GID Letter, or apply them as objective yardsticks in a consistent and uniform manner across different users and enforcers.

95.  Ms Cheng submitted that if medical certification were to be adopted, detailed criteria on their issuance, content and effects would have to be laid down – and that is task for the legislature, rather than the Courts. Indeed, Ms Cheng submitted that, even in considering the balance to be struck, the Court should have regard to the undesirability of judicial line-drawing.

96.  For K, Mr Parker accepted (and, indeed, submitted) that, on a proper construction of the PCCBR, K would commit an offence if he were to use a male public convenience. This was common ground.

97.  Mr Parker submitted that, subject to the question of justification, all three forms of discrimination identified were present:

(1)  As direct discrimination, K is treated less favourably than cisgender men who are able to access male public conveniences, and less favourably than cisgender people generally who are able to access public conveniences according to their gender identity.

(2)  As indirect discrimination, the benefit of accessing male public conveniences (or public conveniences corresponding to the gender with which the user identifies) is conferred on the basis of an ostensibly neutral criterion, i.e. biological sex, which operates to the disproportionate disadvantage of pre-operative transgender people undergoing RLE.

(3)  As Thlimmenos discrimination, K is accorded the same treatment as a cisgender woman although he is in a materially different situation on account of (a) is gender identity as a man, (b) his diagnosis of gender dysphoria, (c) the prescription that he undergo RLE as a man, and (d) his possession of a GID Letter certifying those matters.

98.  Hence, Mr Parker submitted, the non-discrimination principle was engaged. On the issue of comparability, it was submitted that transgender people undergoing RLE are not so obviously and differently situated from the proposed comparators as to preclude any comparison being drawn at all. The case is one in which comparability is bound up with the issue of justification, so that it would be circular or unprofitable to try to assess similarity or difference in a vacuum. If K’s treatment is based upon his genitalia and HKID marking, it should be asked why these are the only criteria and why his gender identity, appearance and experience living as a man, his diagnosis and the GID Letter should be ignored.

99.  In view of the significant harm caused to trans people by the PCCBR, Mr Parker submitted, the remaining question is whether the Government could justify the different treatment with the necessary very weighty or particularly convincing weighty reasons. Mr Parker submitted that they could not.

100.  Mr Parker pointed out that the PCCBR apply only to public conveniences managed by the Food and Environmental Hygiene Department (“FEHD”), and the legislature has not considered it necessary to regulate any other bathrooms to which the public generally have access, such as those in shopping malls, schools and universities, or privately manage recreation facilities. That, Mr Parker submitted, identified the exclusion of trans people undergoing RLE from gender appropriate bathrooms is not viewed as being necessary or essential generally.

101.  In response, Ms Cheng pointed out that the PCCBR applies only to conveniences managed by FEHD, so defined because they are directed at public health and municipal services only. It does not follow from the absence of separate legislation compelling segregation in other public conveniences or bathhouses, that the statutory aims are only important in some public conveniences. There may well be other policy or practical considerations.

102.  As to the Government’s main justification relying on the claimed need to protect the privacy interests of other bathroom users, Mr Parker submitted that the PCCBR in fact make little if any contribution to user privacy, and actually would be counter-productive:

(1)  The Government’s privacy argument takes as its premise the proposition that K is to be treated as a woman for the purpose of bathroom use based on his biological sex at birth and/or HKID sex marker, but whether he should be treated as a male or female for this purpose is what is in issue.

(2)  The argument ignores the reality of what trans people actually do when they use the bathroom. As K does not possess male genitalia, he does not use urinals, and K uses a cubicle where he can neither see others nor be seen. (The same would be true of a trans woman visiting a female bathroom, which has only cubicles.)

(3)  Hence, given a male appearance, it is difficult to see how other male bathroom users would be affected by K’s mere presence, not least when fully clothed outside the cubicle or shower compartment.

(4)  K’s male appearance would likely cause more consternation if he were forced to use the female toilets, as he would appear to be – and K’s evidence was that he had in fact sometimes been accused of being – in the “wrong” bathroom. Forcing K to use female public conveniences would create an even greater privacy harm both to him and to female bathroom users.

103.  These points are supported by decisions in the US Courts, such as Grimm v Gloucester County School Board 972 F.3d 586 (4^th Cir 2020) at pp 622-623, and Whitaker v Kenosha Unified School District 858 F.3d 1034 (7^th Cir 2017) at 1052. These passages emphasise that common sense would tell that bathrooms are places where individuals act in a discreet manner to protect their privacy, and those who have true privacy concerns are able to utilise a cubicle or stall.

104.  As to any alleged security concerns, Mr Parker submitted that no evidence had been produced to suggest any correlation between permitting trans people undergoing RLE to use gender-appropriate bathrooms and an increase in sexual harassment or other offences. Previous cases had also rejected such a suggestion. In fact, the evidence would suggest a greater risk of harassment and intimidation from using a bathroom does not correspond with the expressed and identified gender.

105.  As to the Government’s contention that allowing K to use male public conveniences would violate social norms and expectations, that was also without proper evidential basis, and the supposedly prevailing views of the community would not provide justification for treating persons less favourably.

106.  As to the claimed necessity to draw a “bright line” on gender segregation, so as to provide a clear certain objective yardstick which can be consistently and effectively applied by attendance on police officers, Mr Parker described that as a strawman argument (where K was not seeking the ability to “self-declare”), and there is anyway nothing objectionable about relying on a doctor’s certification of medical matters affecting legal rights and obligations. Further, any “bright line” argument based on administrative convenience is in principle weak justification for differential treatment. The question should be why a line is drawn, not how clearly it can be drawn.

G.  Decision in Q(CFA)

107.  The applicants in Q were FtM transgender persons who, although biologically female at birth, had been identifying themselves as male since youth. They had undergone a lengthy course of medical and surgical treatments, including psychiatric treatment, hormonal treatment, mastectomy (i.e. the removal of the breasts) and RLE. Their gender dysphoria had been medically certified as having been sufficiently attenuated to enable their social integration and psychological well-being without the need for any further medical treatment or procedure.

108.  But their applications to alter their sex or gender marker on their HKID card from ‘F’ to ‘M’ was refused by the Commissioner on the basis that they had not undergone full SRS. To have a full SRS would have required Q to complete what might be called the ‘bottom surgery’, involving the removal of ovaries and the uterus, and the construction of an artificial penis. The surgery carries certain post-operative risk and possible complications.

109.  The CFA held that the policy of the Commissioner of Registration requiring transgender persons (except those with “medically justifiable reasons that SRS cannot be completed”) to have undergone full SRS as a necessary condition before the gender marker on the HKID card could be changed violated the applicants’ privacy rights under BOR 14 and was thus unconstitutional. But the CFA recognised that it is not for the Court to rewrite the Commissioner’s HKID card Policy, and there were various models and approaches for re-formulating the Policy in a manner in compliance with BOR 14. The CFA struck down the Policy and left it to the Government to revise the Policy to bring it in line with the applicants’ constitutional rights: see §§108-110.

110.  The CFA’s reasoning, broadly summarized, was as follows.

111.  The evidence disclosed that the refusal to allow the applicants to amend the gender marker on their HKID cards led to humiliation, distress and loss of dignity in routine activities involving the inspection of their HKID cards. The full SRS condition of the Policy required them to make a choice between accepting frequent infringement of their BOR 14 rights to privacy when using an unamended HKID card and undergoing major invasive surgery which is medically unnecessary: see §46.

112.  The applicants’ constitutional right to privacy under BOR 14 was encroached upon and it fell to the Government to justify the Policy by satisfying the well-established four-step proportionality test by showing that (1) the encroachment pursues a legitimate aim, (2) the encroachment is rationally connected with achieving that aim, (3) the encroachment represents a proportionate means of achieving that aim, and (4) a reasonable balance has been struck between societal benefits of the impugned measure and the individual’s constitutionally protected rights: see §§47-48.

113.  The CFA accepted that the Policy pursues the legitimate aim of establishing a fair, clear, consistent, certain and objective administrative guideline to decide when a change of sex entry on the HKID card is to be accepted, and the Policy is rationally connected to such aim. These were not disputed between the parties: see §49.

114.  For the third step of proportionality analysis, the CFA upheld the CA’s decision that the applicable standard of scrutiny should be one of “reasonable necessity” rather than, as suggested by the Commissioner, the standard of “manifestly without reasonably foundation”. The CFA endorsed the CA’s view that the Policy engaged core values concerning personal or human characteristics in terms of gender identity and physical integrity, and must be subject to the Court’s vigilant scrutiny by the more stringent standard: see §§54-62.

115.  The CFA rejected all the three justifications put forward by the Commissioner to argue that the Policy was no more than reasonably necessary in achieving the legitimate aim:

(1)  The Commissioner’s first justification was that full SRS is the only workable, objective and verifiable criterion to enable a registration officer to determine the application. The CFA held that the fact that the Policy admits of exception (permitting certification of different medical reasons as to why full SRS cannot be completed and consideration of applications by the registration officer on a case-by-case basis) shows that full SRS is not the only line that can be drawn. That conclusion is also supported by that in numerous other jurisdictions criteria short of the full SRS has been applied for determining if the gender marker on identification documents could be changed: see §§68- 78.

(2)  The Commissioner’s second justification was that practical administrative problems due to incongruence between the external physical appearances of the holder and the gender marker would arise if some other line was drawn, when the sex entry on HKID cards are used by law enforcement agencies, operators and frontline staff of various organizations and government departments as indicator of the holder’s gender in many aspects of everyday life. The CFA observed that the incongruence which regularly exposes transgender persons to violation of their privacy and dignity most commonly involves the discord between their outward appearance (rather than the appearance of their genital area) and the gender marker on their ID cards. It is only rarely that exposure of one’s genital area would be required. In the great majority of cases of possible external incongruence, leaving the gender marker unamended produces greater confusion or embarrassment: see §§79-92.

(3)  The Commissioner’s third justification was that hormonal and psychiatric treatments that precede full SRS are not absolutely irreversible and thus gave rise to the risk a FtM pre-operative transgender person whose sex entry on the HKID card has changed to male, but who then stops hormonal treatment and becomes pregnant and gives birth. The CFA took the view that the risk of post-transition FtM pregnancy is rare and exceptional and it would be wholly disproportionate to regard such risk as a justification to require all FtM transgender persons to have full SRS before they can change their ID card gender marker: see §§97-102.

116.  As to the second point, it is also useful to quote from §§87-90, as they are reflective of some of the submissions made by Mr Parker in this case, including by reference to the US authorities (see above). Those paragraphs state:

87. The incongruence which regularly exposes transgender persons to violation of their dignity and invasion of their privacy most commonly involves the discordance between their outward appearance (rather than the appearance of their genital area) and the unamended gender marker, when their ID cards are produced for inspection. This is what we call “external incongruence”. A FtM person who has undergone hormonal treatment and is living as a male will generally present himself and be regarded by others as a male. He may have facial hair, an Adam’s apple, a deeper voice and a male physique with increased muscle and redistributed fat, as well as a male hairstyle, clothing and demeanour, giving rise to possible external incongruence due to an unaltered gender marker. If a gender marker amendment had been made so that his external appearance was in line with his gender marker, such incongruence and any associated problems would be far less likely to arise, if at all. It is misplaced to suggest that “practical problems” involving external incongruence are somehow avoided by adhering to the full SRS Policy and refusing alterations to the gender marker on that basis.

88. As Lord Pannick KC pointed out, it is only rarely that exposure of a person’s genital area is required. Indeed, as the appellants have pointed out in their evidence, they go to great lengths to avoid being placed in that position as a matter of everyday experience.

89. In the great majority of cases of possible external incongruence, leaving the gender marker unamended produces greater confusion or embarrassment. For example, if a transgender man who had not had full SRS but whose external appearance was in every respect male was to enter a women’s public lavatory, the reaction of the women using the facility would almost certainly be one of consternation. It would be of little relevance for them to be told that he had entered because his gender marker stated that he was female and that he was using the women’s lavatory (he believed) to avoid being prosecuted. Yet the Commissioner’s evidence suggests that lawful use of such public conveniences should be in accordance with the gender marker’s designation:

“According to FHB [Food and Health Bureau], should the situation so warrant, the [lavatory] attendant may report the case to the Police for assistance and inspection of the subject's HKIC. If the HKIC sex entry cannot be reliably referred to in ascertaining the actual physical sex of a subject, there would be practical difficulties in enforcing the law when there is incongruence between the sex identified on the HKIC and the external physical attributes of the person concerned, as well as grave embarrassment for, and even complaints of misconduct of a sexual nature by or against, other users of the facility.”

90. The implication that the gender marker establishes the holder’s “actual sex” as a matter of law is unsound. The construction and application of the Regulations governing conduct in public conveniences are not issues arising on the present appeals. Nevertheless, in practical terms, it seems clear that in the aforesaid example, if, instead of entering the women’s lavatory, the transgender person, appearing in all external respects to be a man, walked into the men’s facility, no one would have raised an eyebrow. After much experience of living in his acquired gender, he could be relied on to deal with his own transgender needs in a sensible and discreet way, such as by using a cubicle to ensure privacy.

117.  It may also be important to note that he CFA expressly said that the constitutional challenge to the HKID card Policy did not involve a person’s sexual status for all legal purposes. The CFA said that the challenge concerned merely the correction of a gender marker on an identification document which does not affect legal status. Hence, the issues in the appeals did not engage the need to have regard to any relevant consensus across different jurisdictions, nor did they give rise to complications about the relationship of inter-linked legislation across different contexts as would arguably be the case if the appeal concerned the question of gender recognition generally (a matter addressed in the IWG paper): see §61.

118.  Though not set out in the Q(CFA) decision, reference might be made to the IWG paper at §8.32, where it was stated:

However, changing HKIC does not itself establish a person’s sex or gender for all legal purposes. Rather, the legal gender of a person in Hong Kong from some legal purposes (e.g. marriage) is determined, prima facie, by reference to his or her birth certificate as envisaged by the CFA in W’s case. Changes made on an HKIC without changes on the birth certificate might create ambiguity regarding the person’s legal gender, and undesirable consequences might result, e.g. rendering transgender people vulnerable to prejudice and discrimination. Some people might have difficulty establishing a coherent personal history and therefore risk been suspected of identity fraud. Moreover, the changing of a HKIC might still give rise to controversy in some daily life situations, such as the use of toilets or changing rooms by transgender or transsexual people. Obviously, there will be a number of legal implications that have to be addressed if such a dual track scheme is introduced in Hong Kong.

119.  It is necessary to bear in mind some of the legal implications when considering the present application.

H.  The Shift in the Case

H.1  Shift to Focus on Relief

120.  Following the decision in Q(CFA), where the CFA overturned the CA and held that the Commissioner’s then HKID card Policy was unconstitutional, in that it amounted to a disproportionate encroachment upon the applicants’ rights to privacy, Mr Parker and Ms Cheng filed supplemental submissions and revised their positions.

121.  Albeit not expressly put in this way, in practical terms the Government has acceded to K’s application. Post Q(CFA), the Government is no longer defending the line drawn by the PCCBR (i.e. biological sex at birth) or the line drawn by reference to the former HKID card Policy (i.e. full SRS). In other words, the Government has in effect accepted that regulations 7 and 10 as properly construed (or even as was applied in practice) are unconstitutional.

122.  I think it is fair to say that the Government has never maintained the position that it would be constitutional to require that a person should only access public conveniences in accordance with their assigned or biological sex at birth. Subsequent to the decision in Q(CFA), Ms Cheng also accepted that it is no longer appropriate to require a transgender person to undergo full SRS in order to change the gender marker on his HKID card and thereby to gain access to the public conveniences designated for his preferred gender. In other words, the Government has also abandoned the position that the line should be drawn by reference to what was previously the practice, at full SRS.

123.  Hence, as it now stands, the only substantial dispute between parties concerns relief. The question left is whether – in addition to the recognition that regulations 7 and 10 contravene BL 25 and BOR 1(1), BOR 14 and BOR 22 – those regulations should be struck down as unconstitutional, or whether the impugned provisions should be remedially construed so as to bring them in line with the rights of those in K’s position, and if so what is the appropriate remedial construction.

H.2  Government’s proposed relief

124.  The Government remained adamant that any “relaxation” of the impugned provisions by way of remedial construction should not go beyond the new HKID card Policy – which, at the time of Ms Cheng’s supplemental submissions, was yet to be devised by the Government.

125.  Hence, Ms Cheng submitted that, insofar as is considered appropriate, the Court may adopt a remedial construction to regulation 7 such that the word “male” should refer to a person whose HKID card bears a sex gender marker for male; and “female” should refer to a person whose HKID card bears a sex or gender marker for female. As she put it, it would be inappropriate to permit a transgender person who is not able to change the gender marker on his HKID card (on the new model to be devised by the Commissioner) to use public conveniences of his preferred gender simply because he can show a medical need for RLE. This submission was apparently made on the assumption that the new HKID card Policy to be devised by the Commissioner would require more than showing a medical need for RLE, even though, in principle, one possible model to be adopted by the Commissioner in devising the new Policy might have been that transgender persons meeting the criteria as proposed by K – i.e. diagnosed with gender dysphoria and having a medical need to undergo real life experience – would be allowed to change the gender marker on their HKID cards.

126.  At the time of the supplemental submissions there might have been a legitimate concern that, since the class of person who would ultimately be permitted to change the gender marker on their HKID cards remained unknown and unascertainable, it would be difficult to see how aligning regulations 7 and 10 with that new HKID card Policy would strike the right balance. However, the new Policy has since become available.

127.  The Government published the new HKID card Policy, with revised guidelines, in April 2024. Whilst the Government now no longer insists on full SRS, some form of surgery and hormonal treatment is still necessary. For a FtM transgender person, he has to have had the breasts removed. For a MtF tansgender person, she has to have had the penis and testes removed. In addition to those surgical procedures, the transgender applicant for a change of sex or gender marker on the HKID card also has to satisfy the Commissioner by way of making a statutory declaration that he or she has or had gender dysphoria, has lived in the opposite sex for at least two years, will continue to live in the opposite sex for the rest of his or her life, has been undergoing hormonal treatment of the opposite sex for at least two years and will continue to undergo continuous hormonal treatment of the opposite sex and submit blood test reports as requested by the Commissioner for random checking of his or her hormonal profile.

128.  Hence, transgender persons at K’s position are still ineligible to apply to change the sex or gender marker on their HKID cards under the new Policy.

129.  I did not think it necessary to invite further submissions. The subject of the present constitutional challenge is not the HKID card Policy, but regulations 7 and 10 of the PCCBR. My view on the Government’s proposed remedial reading is set out below in the section headed ‘Findings and Appropriate Relief’.

H.3  The Applicant’s proposed relief

130.  Mr Parker proposed that the Court could choose from a combination of relief as pleaded in the Amended Form 86.

131.  Mr Parker accepted in the oral hearing that the Court should avoid granting a remedy that is prescriptive in nature if doing so would involve entering into essentially legislative territory. In Q, the CFA quashed the ID card Policy and declared that requiring full SRS as a necessary condition for altering the gender marker on ID unconstitutional but left it to the Government to come up with a revised policy. Mr Parker submitted that, similarly, the Court could (a) declare regulations 7 and 10 contravene K’s right to privacy under BOR (1), 14, 22 and right to equality under BL 25 and (b) strike down regulations 7 and 10. That is the relief sought at §1(1) and §(2) of the relief section of the Amended Form 86. Mr Parker said this option is appropriate if the Court considers that only some but not all persons within the class of transgender persons at K’s position have rights violated.

132.  Alternatively, Mr Parker submitted that if the Court takes the view that all persons with the class of transgender persons at K’s position have had their rights violated, then the Court should remedially construe “female” in regulation 7 as including pre-operative MtF transgender persons who has been diagnosed with gender dysphoria and have a medical need to undergo real life experience in the female gender; and remedially construe the word “male” in a similar manner. This is the relief pleaded at §2(2) and §2(3) of the Amended Form 86. Mr Parker submitted that the CFA’s analysis in Q(CFA) is highly supportive of this option.

I.  Findings and Appropriate Relief

133.  Insofar as it is necessary to do so, I think the approach to the four-stage proportionality test expanded in the Hysan case can be dealt with as follows, including with the adoption of the heightened standard of scrutiny applicable.

134.  K does not challenge the binary segregation of the sexes into male and female in public conveniences, and hence does not object to a line being drawn somewhere for the definition of male and female for the purposes of access to public conveniences. The core complaint is not as to segregation, but as to the line which is the point of segregation, which line is said to have been wrongly drawn. Anyway, I accept that the aims of preserving bodily privacy, security and (at least to some extent) social norms and cultural expectations are legitimate aims. This is so whether or not a “bright line” is to be drawn.

135.  I also accept that there is a rational connection between the legitimate aims and the measures adopted, which logically further the legitimate aims in the sense that they can reasonably be expected to contribute towards their achievement. I do not accept Mr Parker’s submission that the fact that the PCCBR apply only to FEHD-run public conveniences (and not to other publicly accessible conveniences) means that there is either no legitimate aim, or that the rational connection is broken.

136.  As regards the third and fourth stages of the proportionality analysis, I take into account the arguments I have summarised above, including the discussion as to the availability of gender-neutral toilets, and the practical realities as to how persons use facilities in order to preserve their own privacy. As I have already indicated, following the decision in Q(CFA) the Government has not really sought to uphold regulation 7 as being proportionate by reference to either the meaning of “male” and “female” as biological sex at birth, or the approach adopted to the practice involving the sex or gender marker on a person’s HKID on the then applicable Policy. In any event, it is my own conclusion on the materials that regulations 7 and 10 – and drawing the line of a person’s biological sex at birth – create a disproportionate and unnecessary intrusion into the privacy and equality rights.

137.  Therefore, I accept that regulations 7 and 10 properly construed (see above) contravene BL 25, BOR 1(1), BOR 14 and BOR 22. It is appropriate to give a declaration to that effect.

138.  As stated above, K sought declaratory relief that there be a remedial construction of regulation 7 to the effect that the word “male” should be read as including pre-operative, FtM transsexual persons who have met the two criteria of (1) being diagnosed with gender dysphoria and (2) having a medical need to undergo RLE in the male gender; similarly, it is said that the word “female” should also be read as including pre-operative, MtF transsexual persons who satisfy the equivalent same two criteria.

139.  I acknowledge that this particular form of declaratory relief is sought based upon K’s own factual position. But, I am instinctively disinclined to give the declaration which, it can readily be anticipated, may be subject to further challenge or extension so as to deal with other potential factual scenarios. I think it is also a rather clumsy formulation, likely lacking the necessary specificity.

140.  In any event, the CFA’s observation in Q(CFA) do not support the remedial construction advocated by Mr Parker for K that the line should be drawn at RLE for the purpose of determining whether a transgender person should be recognized as a male or a female for the purpose of accessing a public convenience. The CFA’s focus was on whether it was proportionate to draw the line at full SRS for the purpose of the determining the sex or gender marker on HKID cards. It does appear that the CFA was of the view that the line might be drawn at outward or external appearance. But outward appearance is not, or not necessarily, the equivalent of RLE. Indeed, in the example used by the CFA, what it may take to achieve the “outward appearance” of the preferred gender may go further than RLE and would at least require some hormonal treatments. But a person within the class of persons represented by K may not acquire all the outward or external appearance of his or her preferred gender. A diagnosis of gender dysphoria with the medical need to undergo RLE may be made of a person who has not undertaken any hormonal treatment or surgery, and thus might retain all physical and biological characteristics of their sex at birth. Such a person might dress and style him or herself in the form generally expected of their identified gender, but it is not necessarily safe to think that he or she could walk into the identified-gender-specific facilities without ‘raising an eyebrow’ (a phrase used in some of the authorities).

141.  In any event, the CFA did not rule that the appropriate line to be drawn for HKID card purposes is external appearance. The CFA recognized that there could be different models and approaches and it would not be appropriate for the Court to say where the line should be drawn generally: see §110 and also §§73-76. This echoes the CFA’s own observation in its earlier decision in the W case at §§128-138, that it is best to leave it to the legislature to decide how the balance between the rights of transgender persons and others who may be affected should be struck, and the Court should refrain from drawing any line of its own.

142.  Ms Cheng also cautioned against judicial line-drawing, though Mr Parker said it is a fallacy to think that the line is drawn by the Court, because the line is drawn in the PCCBR, and the Court should simply say that to exclude K from the definition of “male” is unconstitutional.

143.  However, the remedial constructions proposed in effect seek to draw some line, and that offered for the Government at least risks conflating policy with the law. As already said, the CFA stressed that the gender marker on a person’s HKID card does not establish or even recognise a person’s gender as a matter of law.

144.  However, the remedial construction proposed by Ms Cheng would inevitably confer legal status on the sex or gender marker on a person’s HKID card in respect of access to public conveniences. In other words, the marker ‘M’ would mean that the holder of the ID card is a male for the purpose of the law under regulation 7 of the PCCBR; and the marker ‘F’ would mean that the holder is a female for such purpose. I see considerable force and attraction in there being some form of objective and readily available means for a person to prove, or for someone else to check, use of the correct public convenience. But adopting this approach would seem to me to change the nature of the gender marker on HKID cards from merely as a particular for verification of identity to some form of gender legal recognition, albeit only for the limited purpose of using a public convenience.

145.  Whatever the content of the new HKID card Policy is, it remains a policy in nature and could be revised by the Commissioner from time to time. Adopting Ms Cheng’s suggested remedial construction – i.e. reading “male” in regulation 7 as referring to a person whose HKID card bears a sex or gender marker for male; and “female” as referring to those whose ID card bears a sex or gender marker for female – remains a blanket sanction for whatever policy regarding the sex or gender marker on HKID cards that the Commissioner may have in place time to time. The consequence of accepting Ms Cheng’s proposed remedial construction would in effect conflate policy and the law, turn the Commissioner’s HKID card Policy into some sort of gender recognition scheme in law for at least the purpose of accessing public conveniences, and allow the Commissioner’s policy to dictate the law when it should be the other way round. The Government’s proposed remedial construction is therefore necessarily to be rejected.

146.  Further, a similar problem besets the remedial construction offered by Mr Parker, for the reasons which I have already identified.

J.  Disposition

147.  In the circumstances, the Applicant’s application for leave to apply for judicial review is granted, and the substantive application succeeds to the following extent, and gives rise to the following relief as seems to me to be appropriate in the exercise of my discretion.

148.  I make a declaration that regulations 7 and 10 of the PCCBR as properly construed contravene BL 25 and BOR 1(1), BOR 14 and BOR 22.

149.  Because I do not think there can be a remedial interpretation, I also make a declaration that those two provisions which together create the criminal offence be struck down. But I suspend, for a period of 12 months, the coming into effect of that declaration, to permit the Government time to consider whether it wishes to implement a way to deal with the contravention. I acknowledge that the Government might take the view – not least where there is no similar legal regulation biting on other publicly accessible toilets (such as in shopping centres etc) – that it is content to let the criminal offence go. 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. But, otherwise, I leave it to the Government to consider and implement the appropriate way to resolve the contravention. This is a matter of the line-drawing, which seems to me to be a question for the Government or legislature to address.

150.  Therefore, I think that the answer to the question posed in the first paragraph of this Judgment – namely, where in this context is the line to be drawn between a “female person” and a “male person” – is an answer not appropriately given by the Courts, and is more appropriately a matter for legislation probably in the context of wider or inter-linked questions. Hence, the answer to the other question posed – namely, who should draw that line – is also the legislature.

151.  As to costs, it seems to me that the costs should follow the event and the Applicant’s costs should be payable by the Putative Respondents, to be taxed if not agreed, and with the Applicant’s own costs to be taxed in accordance with the legal aid regulations. I make that order on a nisi basis, to become absolute after 14 days unless any party makes an application for variation of the nisi order. Any variation application will be dealt with on paper.