Landmark win clarifies HK’s sex discrimination law

Leung Kwok Hung is a celebrated Hong Kong politician and activist. His celebrity is not just due to his antics in the Legislative Council, but also due to his infamous mane of hair – giving him the moniker “Long Hair”.

In 2012 “Long Hair” was convicted of criminal damage and disorderly behaviour and given a custodial sentence.

The prison service in Hong Kong operates in accordance with Standing Orders, one of which details the length of hair of prisoners. It requires that male prisoners have their hair cut “close”, but that female prisoners may retain the length of hair they had on admission.

In accordance with this Standing Order “Long Hair's” celebrated mane was shortened; he claimed that such action was a breach of the Sex Discrimination Ordinance. The case proceeded through the courts and has finally been considered by the Court of Final Appeal.

In unanimously holding that the Standing Order setting out different treatment for men and women was unlawful, the Chief Justice has clarified how a court should consider issues of social norms, the objectives of a requirement and the meaning of disadvantage.

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Identifying unlawful sex discrimination
Sex discrimination can be direct or indirect. The difference is explained in our “Guide to Discrimination Law in Hong Kong”. The “Long Hair” case involves direct discrimination.

When lawyers are asked whether an act constitutes direct discrimination it is typical for them to refer to the “but for” test – “would the complainant have suffered this detriment but for the fact of his/her gender?”.

This test works in many scenarios, but it does not give a full answer where the issue in question relates to commonly accepted differences between men and women which do not result in obvious detriment.

For example, it has been long established that an employer is permitted to require its employees to comply with a dress code that contains different requirements for men and women. Therefore, an employer can require male employees to wear a different uniform from female employees.

Similarly, an employer can impose policies on jewellery and hair length which differentiate between men and women. The logic here being that an employer should be permitted to control its own image, provided that there is no disproportionate detriment being imposed on any particular gender.

In considering whether policies of this type are lawful or not the case law indicates that the court should look beyond the differential treatment (i.e., beyond the “but for” test) and consider also the rationale for such differences and whether the imposition of the different treatment results in less favourable treatment to one group over another. This is described as the “package” approach.

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The “Long Hair” case
So, with that background the Court of Final Appeal (CFA) in our “Long Hair” case was required to apply the “package” approach in assessing whether or not the Standing Order requiring Mr Leung's hair to be cropped was unlawful.

The Chief Justice gave an excellent leading judgement in which he focused on the meaning of “less favourable” and, in particular, the rationale for the different treatment set out in the Standing Order.

The rationale put forward by the Commissioner for Correctional Services for requiring male prisoners to have short hair was that:

Custodial discipline requires the imposition of uniformity in appearance between inmates; and

Difference in treatment between men and women in the Standing Order reflects conventional standards of appearance in society.

As such, there is no “less favourable treatment”.

Unfortunately for the Commissioner the CFA refused to accept such rationale. The CFA pointed out that no evidence had been put to the court to demonstrate that “conventional standards of appearance in society” required men not to have long hair.

In particular, and tellingly, the Chief Justice pointed out that the Standing Order had been in place for over 60 years and had not changed at all in that time (while there is little doubt that societal norms have changed hugely over that period).

In short, the CFA decided that the policy which removed from “Long Hair” the opportunity to retain his flowing locks was unlawful discrimination.

Whether this will result in all inmates in the future having to have short hair regardless of gender, or whether a male inmate will be able to opt to retain his length of hair on admission (as is the case for female prisoners) is yet to be seen.

However, what we can say without question is that “Long Hair” has struck a Samson-like blow against outdated policies which attempt to justify differentiating between men and women by reference to societal “norms” from past generations.

Society changes and the courts must recognise that, even if civil servants are not able to do so. Hurrah for the CFA!

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Lessons for employers
Any dress code that distinguishes between men and women could give rise to issues under the Sex Discrimination Ordinance.

To be confident that such a dress code is not unlawful employers should ensure that any gender-specific differences are reasonable and have a rational objective. Such codes and policies should also be reviewed regularly to ensure they continue to be reasonable in light of evolving social conventions.

Duncan Abate is a partner at Mayer Brown with experience in all aspects of employment and employee benefits law and regulation.

This article was originally published on Mayer Brown’s website and is reproduced with permission.