The recent UK Supreme Court decision clarifying that "sex" under the equality law refers strictly to biological sex has sent ripples far beyond Britain's borders. For Hong Kong, a city with a growing awareness of persity and inclusion but limited statutory protections for transgender inpiduals, reflecting on and understanding the implications of this landmark judgment will be crucial for fostering fair and inclusive workplaces.
The UK Supreme Court Ruling: A Brief Overview
On 16 April 2025, the UK Supreme Court ruled that the terms "sex," "woman," and "man" in the Equality Act 2010 must be interpreted according to biological sex (an inpidual's sex at birth). This means that, for the purposes of the Equality Act, a transgender woman (a person born as male but identifying as female) cannot legally be considered a "woman"—even if they possess a Gender Recognition Certificate (which is a legal document granted under the UK's Gender Recognition Act 2004 that recognises an inpidual's affirmed gender, allowing them to update their birth certificate and other legal documents, regardless of whether they have undergone any sex reassignment surgery). The Court emphasised that "sex" and "gender reassignment" are distinct protected characteristics, and that merging the two would create legal incoherence. While the ruling reaffirmed that transgender inpiduals remain protected from discrimination, it also clarified that such protections exist within a separate statutory framework.
Challenges for Transgender Employees: Lessons for Hong Kong
For Hong Kong, there is no equivalent to the UK's Equality Act or the Gender Recognition Act. Instead, there are 4 anti-discrimination ordinances, namely, the Sex Discrimination Ordinance (Cap. 480), the Disability Discrimination Ordinance (Cap. 487), the Family Status Discrimination Ordinance (Cap. 527), and the Race Discrimination Ordinance (Cap. 602). Unlike the UK, gender reassignment is not a protected characteristic.
The legal recognition of transgender inpiduals in Hong Kong has seen notable progress following the recent Court of Final Appeal judgment in the Q & Tse Henry Edward v Commissioner of Registration case in February 2023. Transgender persons are no longer required to undergo full sex reassignment surgery to apply for a change of sex on their identity card. Those who have completed specified surgical treatments aimed at modifying sexual characteristics, and who meet certain revised criteria, are now eligible to apply. Therefore, as things currently stand, a transgender woman who has undergone full sex reassignment surgery could be considered "female" in Hong Kong, contrary to the UK's ruling. Following the UK's ruling, it will be interesting to see whether the Hong Kong courts would take the same view when it comes to the definition of "sex" for the purposes of the Sex Discrimination Ordinance.
Despite significant progress in LGBTQ rights, transgender employees in Hong Kong continue to face significant hurdles, including:
- Lack of Statutory Protection: Gender identity or reassignment is not one of the protected characteristics under anti-discrimination laws in Hong Kong. The Sex Discrimination Ordinance does not cover transgender inpiduals, leaving only limited protection under the Disability Discrimination Ordinance, where gender dysphoria or gender incongruence may be considered a disability. Discrimination on gender identity grounds is therefore not explicitly unlawful.
- Workplace Exclusion and Stigma: Transgender employees often encounter difficulties with job applications, as most forms require a binary gender selection. Many fear accusations of dishonesty or face invasive questions if their gender history is discovered. Bullying, harassment, and exclusion remain common, with few avenues for legal recourse.
- Washroom and Facility Access: Practical issues such as access to gender-appropriate washrooms are a daily challenge. Section 7 of the Public Conveniences (Conduct and Behaviour) Regulation (Cap. 132BL, the "Regulation") makes it a criminal offence for a male person over the age of 5 to enter into a female toilet and vice versa. This Regulation applies to public restrooms run by the Food and Environmental Hygiene Department only and does not define the meaning of "male persons" and "female persons", but a judicial review has been brought to expand their definitions to include transgender inpiduals (K v. Secretary for Environment and Ecology & Secretary for Justice [HCAL 646/2022]). The judgment has not yet been handed down so whether the Hong Kong Court will take the UK's ruling into account when interpreting the meaning of "sex" is yet to be seen. Nevertheless, many employers in Hong Kong follow the Regulation and direct employees to use restrooms according to their biological sex, some also require transgender employees to use toilets designated for persons with disabilities, a compromise that many find inappropriate.
- Privacy and Disclosure: The absence of clear policies means that transgender employees' privacy is often not respected. Non-consensual disclosure of a person's transgender status can lead to further discrimination and distress.
The UK ruling, by reinforcing a strict biological definition of sex, risks reinforcing similar exclusionary practices elsewhere, including Hong Kong, unless employers take proactive steps to support transgender staff.
Practical Steps Employers Should Take
To fill the legislative gap and ensure that a safe environment is provided for transgender employees to work in, employers should:
- Implement Comprehensive Policies: Develop and communicate clear anti-discrimination, anti-harassment, and persity, equity, and inclusion (DEI) policies, including inclusive dress codes, that explicitly mention gender identity and expression.
- Establish Effective Complaint Mechanisms: Ensure there are confidential, impartial, and accessible channels for reporting and resolving complaints of discrimination or harassment.
- Respect Privacy: Safeguard the privacy of transgender employees, ensuring that information about their gender identity or transition is only shared with their consent.
- Provide Training: Regularly train staff and management on issues facing transgender employees, including the importance of using correct names and pronouns, and recognising and addressing unconscious bias.
- Review Recruitment and Facilities Policies: Make application forms gender-neutral where possible, and allow flexibility in whether an applicant states their gender or not. Whilst the law does not prohibit a male person from using a restroom designated for female persons and vice versa for private spaces, we recommend employers offer single-stall or gender-neutral options for those seeking additional privacy.
Conclusion
The UK Supreme Court's decision on the definition of "sex" in relation to the Equality Act underscores the complexity and sensitivity of issues surrounding gender identity in the workplace. For Hong Kong employers, the ruling is a timely prompt to review existing practices, close policy gaps, and take proactive steps to support transgender employees. By doing so, Hong Kong employers can not only mitigate legal risks but also foster a more inclusive, productive, and innovative workplace for all.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
