Sex Discrimination & ‘Long Hair'

A recent Human Rights case decided at the Hong Kong Court of Appeal in November 2020 is likely to resonate across a variety of common law jurisdictions like Australia.

A Gendered Society

Many advocates of anti-sex discrimination say we are still living even in the so called ‘modern age’ in a gendered society, regardless of our Sex Discrimination laws.

A gendered society among other things means that certain dress, behaviour, and attitudes are reserved exclusively for either men or women.

This is based on stereotypical ideals about men and women and how they are, should look and/or behave.

Not fitting into these gendered stereotypical ideals can cause a person to feel and experience adverse treatment, hostility and sex discrimination.

Some typical gendered stereotypical ideals in our community relating to dress and appearance are:

• women wear skirts, men wear pants;
• women grow and paint their nails, men don’t;
• Women wear heels, men don’t;
• women grow their hair and men opt for short back and sides.

‘Long Hair’

However, for one Mr Leung Kwok Hung also known as “Long Hair” stereotypical ideals do not fit in today modern thinking and should be fought against even when you are placed in a Correctional facility (prison).

Mr Hung was a politician and activist known as “Long Hair”. He was convicted of charges of criminal damage and disorderly behaviour in Hong Kong demonstrations.

Mr Hung nickname of “Long Hair” was due to you guessed it, the length of his hair, which was approx. 80 cm long.

Upon arrival at the reception centre at Hong’s Kong’s Correctional facility, he was told his hair would have to be cut as per the law and policy of the correctional facility.   

Mr Hung claimed the Correctional facility was discriminating against him because of his sex and was treating him differently only because he was a man.

Mr Hung claimed his treatment was very different compared to the women prisoners at the Correctional facility. He pointed to the fact that women prisoners did not nor were asked to cut their hair upon arrival.   

After a lengthy 2nd appeal case the Hong Kong Court of Appeal finally agreed with Mr Hung.

In Mr Hung’s appeal case now known as Leung Kwok Hung v Commissioner of Correctional Services[1] the Hong Kong Court of appeal said:

…. there will be discriminatory conduct if there has been stereotyping: [34].

…..The Commissioner’s evidence did not prove or explain why male and female prisoners should be treated differently: [42]. The Commissioner’s view, …on what hair lengths for men and women ought to be in society amounted to stereotyping: [53]. Less favourable treatment was given to Mr Hung compared with female prisoners. [Therefore] There was discrimination on the basis of sex: [54].

This international case highlights that stereotyping and stereotypical assumptions and ideals can amount to sex-discrimination.

And even though the case highlighted above is an international case it should be taken seriously here in Australia. As our Australian society is still predominately considered a ‘gendered society’.

So, let us remember that ‘Long hair’ is not the exclusive domain of women, men can grow it, wear it and style it as they please and should not be treated less favourably than women or told to cut it, either at work, at school or even in prison!

If you or someone you know has experienced Discrimination at work, Adverse Action at work, being dismissed or are simply seeking employment law advice as an Employer, Employee or Contractor contact Rep-Revive Criminal & Employment Lawyers® on (02) 9198 1996 for consultation.

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[1] [2020] HKCFA 37.