The Introduction of Gender-Friendly Toilet Facility in Hong Kong

image source: HKFP 
​https://hongkongfp.com/2016/09/10/hkus-new-all-gender-toilet-public-convenience-or-political-gesture/

Derren Chan
Derren is currently a Year 3 LLB student in the University of Hong Kong.

Summary

This blog starts by examining the status quo of introducing gender-friendly toilets and the respective legal challenges and limitations in Hong Kong, including the legal position on gender recognition. It then evaluates the prospect and practical challenges of having gender-friendly toilets, mainly focused on the concerns of prolonged waiting time of other stakeholders and women safety. 

Introduction

A public toilet in Tsim Sha Tsui was labelled as a “unisex toilet”. It was initially thought that the government had been trying to implement gender-friendly measures regarding public toilet facilities but The Leisure and Cultural Services Department later specified that the label was clarification that disabled toilets were not gender-specific. [1] This blog aims to discuss the needs and legal challenges regarding the introduction of a gender-friendly toilet facility in Hong Kong. 

For the avoidance of doubt, this blog will adopt the definition provided by Hong Kong courts that “sex” refers to the biological indicators of male and female; “gender” refers to the culturally and socially specific expectation of behaviour and attitude, mapped onto men and women by society, including self-definition as defined in Q v Commissioner of Registration CACV 183/2019. Readers must also distinguish between unisex toilets and gender-friendly toilet facilities. While a unisex toilet is an independent facility which can only be used by one person at a time, gender-friendly toilet facilities are toilets with compartments where people need to queue up for usage. To better illustrate the difference, unisex toilets are generally known as a toilet for disabled persons while gender-friendly toilet facilities will be normal toilets except that they welcome everyone regardless of gender. 

Prospect

Pending an appeal to the Hong Kong Court of Final Appeal, gender identification in Hong Kong currently remains solely dependent on one’s sex. In other words, for transgender people to be recognised by their preferred gender, they must complete sex re-assignment surgery (“SRS”) unless they can prove that they cannot undergo the surgical procedures due to medical reasons: Q v Commissioner of Registration CACV 183/2019. In this regard, transgender individuals must go to washrooms that correspond to their sex and face the discomfort and embarrassment when they utilise  the traditional toilets that do not match their gender. In 2020, Terry Hui, a trans-woman, was rejected from using the fitting rooms in a women’s clothing shop merely because she had a masculine appearance. [2] Brenda, another trans-woman, also shared the experience of her sex being questioned and forcefully searched her phone and ID.[3] One could imagine the difficulty and embarrassment faced by individuals who do not dress or look according to socially codified norms with regards to their sex, when utilising toilets that reflect solely their biological genders, whether or not they have completed sexual reassignment surgery. Introducing anti-discrimination measures, therefore, becomes imperative to build an inclusive community for transgender individuals. 
The foremost advantage of setting up gender-friendly toilets is to reduce scenarios where transgenders are discriminated against and isolated from our community. It is hoped that the above-mentioned scenarios can be reduced such that the psychological harm caused to transgender individuals could be reduced to the minimum. 

Challenges

In fact, despite not recognising the concepts of transgenders, gender-neutral public toilet facilities have been set up since 2016 in Shanghai. [4] The rationale is to shorten the waiting time for female toilets in peak hours by maximising resources. This is undeniably applicable to Hong Kong. However, when the Hong Kong government dealt with the same issue, it merely re-labelled “disabled toilets” as “unisex toilets”. The measure had generated vast opposition from rehabilitation organisations for its potential increase in waiting time for people with disabilities. [5] Additionally,the UK government also discovered that the rise in the number of gender-neutral toilets had prolonged the waiting time for women. [6] Thus, if Hong Kong is to promote gender-friendly toilet facilities, it must be on the condition that it will not compromise the interests of women and people with disabilities. 
In addition, private organisations might face practical difficulties even if they decide to provide gender-friendly toilets under the current legal framework. As aforementioned, the current law in Hong Kong only recognises the traditional understanding of gender, that is male or female. Based on these traditional understandings, the law that governs the number of toilets in buildings is also limited to male and female: Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations (Cap. 123I). If private organisations wish to provide gender-friendly toilets, they could only set up extra toilets after satisfying the minimum standard provided by the law. Hence, for the limitations of drainage works and sizes of properties, the law deters property owners from setting up gender-friendly toilets. For instance, the University of Hong Kong set up its first gender-neutral toilet in 2016. [7]However, its number remains to be limited and inconvenient for users.
Concern for women’s safety is also a major challenge in introducing gender-neutral toilets in Hong Kong. According to research conducted by The Sunday Times in 2018, nearly 90% of the reports of changing rooms sex assaults in council sports centres or swimming pools took place in unisex facilities within the two years. [8] This concern is valid even if a gender neutral toilet facility is introduced in addition to the binary toilets as when women, whether they be trans-women or not, are not comfortable and refuse to use gender-neutral toilets. This would defeat the sole purpose of inclusiveness when women cannot enjoy the benefit of unisex toilets. Nonetheless, this concern was addressed by the Shanghai gender-neutral toilet. The compartments are generally bigger with taller partitions. Apart from its structure, there are two toilet attendants at any time in case help is needed. [9] If protection mechanisms are adequate, confidence in women’s safety could be built up to ensure the effectiveness of gender-neutral toilet facilities. Indisputably, the cost of operating gender-neutral toilets will also be larger than that of traditional binary toilets. 

Conclusion

To conclude, the introduction of gender-neutral toilet facilities involves the balance between the needs of transgender, women’s safety and the limitation on resources and land. It also requires vast public support for its smooth promotion. Hence, future promotion must focus on the acceptance of the transgender community in Hong Kong. 
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Bibilography
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[1]https://www.hk01.com/%E7%A4%BE%E6%9C%83%E6%96%B0%E8%81%9E/48528/%E6%A8%99%E7%A4%BA-%E7%84%A1%E5%88%86%E6%80%A7%E5%88%A5-%E5%BA%B7%E6%96%87%E7%BD%B2%E8%A8%AD-%E6%80%A7%E5%88%A5%E5%8F%8B%E5%96%84%E6%B4%97%E6%89%8B%E9%96%93 
[2] https://www.bbc.com/zhongwen/trad/chinese-news-54553312 
[3]https://www.hk01.com/%E7%A4%BE%E5%8D%80%E5%B0%88%E9%A1%8C/41001/%E6%B8%AF%E5%A4%A7%E8%A8%AD-%E6%80%A7%E5%88%A5%E5%8F%8B%E5%96%84-%E5%BB%81%E6%89%80-%E8%B7%A8%E6%80%A7%E5%88%A5%E4%BA%BA%E5%A3%AB-%E6%9C%AA%E5%85%AC%E9%96%8B%E7%9A%84%E8%B7%A8%E6%80%A7%E5%88%A5%E8%80%85%E9%9B%A3%E5%8E%BB%E7%94%A8 
[4] https://www.bbc.com/zhongwen/trad/china/2016/10/161031_shanghai_unisex_toilet 
[5] https://tgr.org.hk/index.php/zh/component/content/article?id=178:2016-08-03 
[6] https://www.bbc.com/zhongwen/trad/uk-62050253 
[7]https://hongkongfp.com/2016/09/10/hkus-new-all-gender-toilet-public-convenience-or-political-gesture/ 
[8]https://www.thetimes.co.uk/article/unisex-changing-rooms-put-women-in-danger-8lwbp8kgk 
[9]https://www.hk01.com/%E4%B8%AD%E5%9C%8B/53896/%E4%B8%8A%E6%B5%B7%E9%A6%96%E5%BA%A7-%E7%84%A1%E6%80%A7%E5%88%A5%E5%85%AC%E5%BB%81-%E5%BB%BA%E8%A8%AD%E5%AE%8C%E6%88%90-%E7%95%B6%E5%9C%B0%E5%A5%B3%E6%80%A7%E6%9C%80%E6%93%94%E5%BF%83%E7%A7%81%E9%9A%B1%E5%95%8F%E9%A1%8C