30 May, 2018
In the recent judgment of Leung Kwok Hung (also known as “Long Hair”) v Commissioner of Correctional Services [2018] HKCA 225, the Court of Appeal (CA) overruled the lower court’s decision and decided that the policy of the Correctional Services Department (CSD) in imposing different haircut requirements for male and female inmates respectively did not constitute direct discrimination under the Sex Discrimination Ordinance (SDO) and did not infringe the right to equal protection under the Basic Law.
Background
The applicant, also known as “Long Hair” (Applicant), was sentenced to imprisonment after conviction on a number of criminal charges. Despite his objection, staff of the CSD proceeded to cut his long hair.
According to the policy as set out in the relevant Standing Order issued by the CSD (Standing Order), “the hair of all male convicted prisoners will be kept cut sufficiently close…for the purpose of health and cleanliness”,whereas “a female prisoner’s hair shall not be cut shorter than the style on admission without her consent”.
The Applicant challenged the Standing Order on several grounds including the following:
(a) The Standing Order constituted direct discrimination against the Applicant by reason of his gender under the SDO; and
(b) The Standing Order infringed the Applicant’s right to equal protection under the Basic Law.
Discrimination under the SDO
Under the SDO, a person discriminates a man if on the ground of his sex that person treats him less favourably than he treats or would treat a woman. At issue in this case was whether the male inmate was treated less favourably than the female inmates. In determining this issue, pursuant to the SDO, a comparison of the cases of persons of different genders shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other. The CA also suggested that one must consider all relevant rights, privileges and obligations as a whole package.
In this connection, the CA ruled that the different requirements in hair length for male and female inmates should not be considered in isolation. The CA stressed that not every differential treatment is actionable, and only those that result in less favourable treatment to the complainant may be sued on.
The restrictions on appearance as a whole for male and female inmates should be assessed, while having regard to conventional appearance standards, in light of the common objectives to be served by the policy on different hair cut requirements.
It was held that the common underlying objective of the policy was to foster custodial discipline. It is fundamental to custodial discipline that there is reasonable uniformity and conformity amongst the inmates, and as part of the correctional environment, it is necessary to de-emphasize some aspects of individuality.
It was a conventional standard in society that most men are expected to have short hair while women can have long or short hair. The CA also used the example that female inmates were allowed to keep and use specified lipsticks but not allowed to keep other forms of cosmetic makeup. It was observed that the difference in treatment between male and female inmates could not be regarded as less favourable for male inmates because of the conventional standard for appearance in society.
Examining all the restrictions as a package overall, the CA ruled that male and female inmates are subject to similar levels of custodial discipline based on contemporary conventional standards. Male inmates are therefore not treated less favourably than their female counterparts. Accordingly, the Standing Order was not discriminatory.
Against the Applicant’s allegation of stereotyping in the CSD’s policy, the CA observed that the male-female division was still evident in sporting events, entertainment industry awards and the segregation of the sexes in lavatories. Furthermore, the CA in this case was not concerned with the difference in treatments based on generalisation or assumptions on skill or ability or the role played by male and female inmates.
Right to equality under constitutional documents
The Basic Law and the Hong Kong Bill of Rights (HKBOR) provide for equality of all Hong Kong residents (in the HKBOR, all persons) before the law. The HKBOR also states that “persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorised by law for the preservation of service and custodial discipline”.
In determining whether one’s right to equality has been infringed under the Basic Law, the CA adopts a four-step proportionality test to assess whether a difference in treatment, is justified as being rationally connected and is no more than necessary or not manifestly without reasonable foundation to pursue a legitimate aim, and whether a reasonable balance has been struck between the societal benefits of the encroachment and inroads made into the individual’s constitutionally protected rights.
The CA held that the Standing Order had not infringed upon the Applicant’s constitutional right to equality as:
(a) The maintenance of custodial discipline was a legitimate aim;
(b) There was a rational connection between the hair-length restriction and the maintenance of custodial discipline by setting a standard of conformity;
(c) Given that the Applicant was incarcerated in a male correctional institution and there was no challenge by the Applicant to the segregation of male and female inmates, any infringement of the right to equality was limited. The restriction on hair-length was also set by reference to the conventional standard of appearance in society. As a result, the Standing Order was not manifestly without reasonable foundation.
(d) A balance had also been struck between the societal benefits of the policy and restriction of the right to equality.
Comment
In coming to its decision, the CA seems to have placed great weight on the conventional standards of appearance in society. Indeed it noted that it is an objective fact that such standards exist and, while acknowledging that they could change over time, it was still possible for those in a society to discern, at a particular point in time, the conventional standards observed by the majority. The CA also stressed that not every differential treatment is actionable, but only those that result in less favourable treatment to the complainant may be sued on. The CA in reaching its decision also discussed various cases on dress/appearance codes imposed by employers. Those cases share the view that an even-handed approach does not necessarily mean that members of one sex are treated less favourably than members of the other simply because members of one sex are required to wear clothing of a particular kind but members of the other are not. It will depend on “the overall context of the code as a whole”.
Employers should bear this in mind when they are preparing any dress/appearance codes for their employees.
It has been reported that the Applicant may file an appeal to the Court of Final Appeal. It remains to be seen how this judgment, which concerns a public sector policy, would affect appearance codes in the private sector.
For further information, please contact:
Elsie Chan, Partner, Deacons
elsie.chan@deacons.com.hk
