Menstrual hygiene is a luxury in Hong Kong jails

Ashley Kong

Author Ashley Kong is a law student at HKU enrolled in the JD programme.

This article is not exactly about queer people, but all people who menstruate – mostly cis-women, also some of the trans, non-binary, intersex, etc. population. It is regrettable how menstruation is an inescapable routine in so many people’s lives, but we talk so little about it. Today, various menstrual hygiene products have undergone innovation and improvement. Hong Kong users now benefit from fairly easy access to a much greater variety of options than our foremothers’ generations.

Menstrual hygiene in Hong Kong jails

While free persons in the jurisdiction may conveniently enjoy the fruits of technological advancement, the same is not shared by most menstruating inmates in local detention and correctional facilities. In fact, menstrual hygiene products are heavily regulated in local jails, such that each inmate can only keep in their personal storage a fixed number of two named products every month – 20 pieces of Whisper Instant Clean Slim Night Wing 28cm Sanitary Napkins and 80 pieces of Whisper Cottony Soft Pantyliner. [1] Any reader who has at least minimal experience with menstruation probably would be quick to notice that such rations will not suffice the realistic needs of those who tend to bleed heavily every period – which usually depends on the genetic lottery.

Remands (persons in custody pending trial) may receive menstrual hygiene products supplied by visiting relatives and friends, but again, such supplies are confined to the two named products. [2] Convicts are not allowed to collect such supplies from visiting relatives and friends, they rely on the central rations or they must work in prison industries units to earn wages for purchasing any extra sanitary supplies. They are paid at a rate significantly lower than the statutory minimum wage – at HK$46 to HK$200 per week. [3]

Under exceptional circumstances approved by the Correctional Services, for example upon a qualified doctor’s advice, an inmate may demand more rations of menstrual hygiene products, but normally not other types apart from the named two. Unless otherwise permitted, inmates are not allowed to keep more sanitary supplies than the monthly quota. Failure to comply with the quota without permission otherwise could amount to a violation of section 23 of the Prison Rules (Cap. 234A) and may attract reprehension.

To make matters worse, many inmates feel too shy and intimidated to demand extra supplies of menstrual hygiene products at all, due to the menstruation taboo which is still prevalent in contemporary Hong Kong culture. As a result, it is common to see bloodstained bed sheets and blankets in female prisons. In most facilities, beddings are rationed by respective central laundries, which may not always effectively clean all bloodied beddings. It often happens that inmates are distributed beddings with blotches of other inmates’ dried menstrual blood, deepened each time when another heavy bleeder inevitably blemishes the beddings again.

Civil society has made efforts to push reform with an aim to improve menstrual hygiene in local detention and correctional facilities. In 2017, the Correctional Services confirmed the monthly quota of sanitary napkins has increased from 10 to the current 20. [4] However, supplies remain strictly limited to the named two products. The Correctional Services consistently cited security concerns to justify its refusal to expand the list of articles approved for inmates’ possession.

Menstrual hygiene as a human right

In recent years, civic discourse on access to menstrual hygiene swept across North America and Europe. Jurisdictions begin to acknowledge menstrual hygiene as a human right and that access to menstrual hygiene products should be made as accessible as possible to all members of the population in need. Various countries, including the UK [5] and Germany [6], have abolished tampon taxes with the understanding that menstrual hygiene products are a necessity and should not be a taxable luxury.

With reference to the international legal framework, the right to health is promised in article 12 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”): “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

On the other hand, article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) requires governments to ensure women’s access to adequate health care on par with that enjoyed by men: “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” Both international conventions apply in Hong Kong with their provisions incorporated into the Hong Kong Basic Law and Bill of Rights.

While not specific to prisons, but rather referring to rural women, the United Nation’s CEDAW General Recommendation No. 34 (2016) states that governments should ensure “adequate sanitation and hygiene, enabling women and girls to practice menstrual hygiene and access sanitary pads” (para. 85(b)) [7] – logically, with regards to the right to health, the same recommendation probably should also apply to other parts of the population including prison inmates.

So far there has not been any local lawsuit challenging the Correctional Services’ present menstrual hygiene policy, possibly because it is generally understood that the court is not in a position to change such policies, reforms can only be achieved by the administration. With that being said, a recent judicial review case in Hong Kong may provide a glimpse into the Hong Kong jurisdiction’s position on prisoners’ rights, particularly on the dignity of the person. In Leung Kwok Hung v Commissioner of Correctional Services, the Court of First Instance adopted a rather conservative position that compulsory hair cutting in jail does not undermine “the inherent dignity of the human person”. [8] The discussion stems from article 6(1) of the Hong Kong Bill of Rights (incorporating article 10 of the International Covenant on Civil and Political Rights [“ICCPR”]): “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Despite ultimately quashing the haircut policy, the Court of Appeal [9] and the Court of Final Appeal [10] went ahead with the same view on prisoners’ dignity.

Break the silence

It is true that quite many other jurisdictions are not doing better than Hong Kong. American inmates face the same problem [11], but that is not a reasonable excuse for us to pat ourselves on our backs in a self-congratulatory manner.

Earlier paragraphs have briefly illustrated the disturbing situation of menstrual hygiene in local jails, which raise serious public health concerns. Further, it is only human that inmates feel distressed both physically and psychologically being subjected to such unnecessary, degrading and agonising treatment. While it might be true that inmates had committed unlawful behaviour and by the law it is right to send them to jail, if our society truly believes in rehabilitation and human rights, there is no legitimate reason why such horrid conditions should be allowed to remain unchanged, given in all other respects they have served their remand or sentence to the satisfaction of the law. This is for all menstruating people – we need to break the silence.

References

[1] Hong Kong Correctional Services, “Approved Hand-in Articles – Female Remand Person – Health Care Type”: https://www.csd.gov.hk/english/socialvisit/socialvisit_articles/frp_hc.html, Hong Kong Correctional Services, “Approved Hand-in Articles - Female Convicted Person – Health Care Type”: https://www.csd.gov.hk/english/socialvisit/socialvisit_articles/fcp_hc.html

[2] Ibid.

[3] Hong Kong Correctional Services, "Q&A Corner – Q14”: https://www.csd.gov.hk/english/info/qa/qa.html#q14

[4] 香港獨立媒體：《女囚犯每月得10塊衛生巾？懲教署：現每月派20塊可額外索取》(2017年8月29日): https://www.inmediahk.net/node/1051744

[5] Government of the United Kingdom, “Tampon tax abolished from today” (1 January 2021): https://www.gov.uk/government/news/tampon-tax-abolished-from-today

[6] DeutscheWelle, “Germany scraps 'tampon tax,' as menstrual products not a 'luxury'” (7 November 2019): https://www.dw.com/en/tampon-tax-germany-menstruation/a-51154597

[7] United Nations Office of the High Commissioner for Human Rights, “General recommendation No. 34 on the rights or rural women” (4 March 2016): https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_7933_E.pdf

[8] Leung Kwok Hung v Commissioner of Correctional Services [2017] 1 HKLRD 1041, [2017] HKEC 72.

[9] Leung Kwok Hung v Commissioner of Correctional Services [2018] 2 HKLRD 933, [2018] HKCA 225, [2018] HKEC 1049.

​[10] Leung Kwok Hung v Commissioner of Correctional Services [2020] HKEC 3781, [2020] HKCFA 37.

[11] Erin Polka, “The Monthly Shaming of Women in State Prisons”, Public Health Post (4 September 2018): https://www.publichealthpost.org/news/sanitary-products-women-state-prisons/ Also see report by American Civil Liberties Union, “The Unequal Price of Periods: Menstrual Equity in the United States” (November 2019): https://www.aclu.org/report/unequal-price-periods​