Asia has largely avoided the unhelpful “which toilet should ‘x’ use?” debate that has divided the west. But Hong Kong sometimes drifts in that direction, warns former top judge Henry Litton.
THERE IS A LATIN MAXIM which says De minimis non curat lex: “The law does not concern itself with trifles”. This principle protects the dignity of law and prevents its processes from being engaged in minute pointless issues, of no interest to anyone.
Take this scenario:
A woman self-identifies as male.
She dresses as a man, and presents herself as a man, with hair cut short in conventionally male style.
She walks into a public toilet marked “Men”, enters a cubicle to relieve herself, goes to wash her hands and leaves.
What possible offence could she have given to other male users of that toilet? Yet technically she has committed a criminal offence: regulation 7(2) of the Public Conveniences (Conduct and Behaviour) Regulations, Cap 1332BL which says:
“7(2) No female person …….shall, in any public convenience, enter any part thereof which is allocated for the use of male persons”.
Regulation 10 provides for criminal penalties.
Assume the facts set out above were known: is it conceivable that the authorities would prosecute? A charge laid in these circumstances would trivialize the law and bring it into disrepute. The case would have been laughed out of court. And yet a case based on Regulation 7(2), heard by Coleman J in January 2023, judgment handed down two and a half years later (23 July 2025), yielded a massive judgment of 151 paragraphs: K v Secretary for Environment and Ecology & Secretary for Justice [ HCAL 646/2022, judgment 23/7/2025 ].
THE FACTS
Coleman J began his statement of facts by saying: “Though K was born female, I shall refer to K using masculine pronouns,” then went on as follows:
“As stated, K was born biologically female, but has since an early age identified as male. He was diagnosed with gender dysphoria (a rare condition where a person feels he or she has been born into the wrong body) 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. 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 is or her identified gender (in K’s case, as a male). To facilitate his treatment, the doctor has issued K a ‘Gender Identity 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”.
“FEAR” OF CRIMINAL PROSECUTION
The introductory paragraph of the judgment posed this question:
“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?”
“Without fear of criminal prosecution,” said the judge. This is concocted fear, totally unreal. What kind of police state would it be if someone, going into the wrong toilet to use its facilities, should fear criminal prosecution?
The suggestion is absurd, particularly in K’s case where she was undergoing “real life experience” as part of a medical regime, and has a “Gender Identity Letter” issued by a doctor which said that she should be treated as a male in social contexts, and that using “gender-specific facilities ( such as a male toilet )” was an “important part of the treatment”.
If it was a real fear of criminal prosecution, where did that place the doctor? An accessory to a criminal offence?
ABSTRACT ARGUMENTS
From this artificial base sprang abstract arguments on constitutional law, “rights to equality”, “freedom from discrimination” and breaches of the Basic Law and the Hong Kong Bill of Rights. All this huffing and puffing occupied multiple pages of the judgment. It would be fruitless to try to summarize the arguments and counter-arguments, for they led nowhere, as will be seen later.
“DISPOSITION”
At para 147-8 the judge said:
“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”.
Then, in para 149, the judge “suspended” for 12 months the coming into effect of his Declaration “to permit the Government to consider whether it wishes to implement a way to deal with the contravention”.
But there was one problem, which the judge himself acknowledged. The Respondents to K’s application for relief were two government officials, and his Declaration did not “bite” (using the judge’s own words in para 149) on publicly accessible toilets such as those in shopping centers, etc, which were privately owned. He might well have added also all the public toilets in MTR interchange stations and many other stations: these are maintained by the MTR Corporation, which also was not a party to the proceedings. And, of course, numerous toilets attached to cafes and restaurants.
So what then is left in the real world? Virtually nothing?
This is what the judge said:
“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 centers, 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”.
CONCLUSION
“The Government might take the view that it is content to let the criminal offence go,” said the judge. In other words, as things stand, Regulation 7(2) serves no purpose. There was nothing on which the Declaration could realistically bite. After all the ponderous consideration of concepts of “constitutional validity”, “discrimination”, “equality”, etc, the Declaration simply evaporated into thin air.
Legal abstractions seldom solve real problems. The judge, caught up in the fantasy world, forgot the time-worn adage: the law does not concern itself with trifles.
And the supreme irony is that this particular trifle took 2 ½ years in the cooking.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.