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By Mark Melnicoe
A recent legal victory for a transgender worker in China was a triumph for the LGBT community in a country not known for viewing gays and lesbians sympathetically, but practitioners and activists say China still has a long way to go in protecting LGBT rights.
The worker, known only by his surname Chen, won the case in the southwestern province of Guizhou, where a court ruled Dec. 30 that his dismissal for presenting as a man was illegal. Because China has no specific antidiscrimination laws, the court used a more general law as the basis for its ruling.
“The decision did not address the issue of his being transgender, only that the termination was a wrongful one because the individual was not fired for cause,” Grace Chen, counsel at Covington & Burling in Beijing, told Bloomberg BNA in an e-mail.
“China's labor laws are very strict when it comes to terminating an employee during their term of employment, and an employer can only unilaterally terminate an employee when one of the grounds exists under China's Labor Contract Law,” Grace Yang, an associate at Harris Bricken in Seattle who specializes in labor law in China, told Bloomberg BNA in an e-mail.
So while the decision marks a watershed—the first time a transgender won an employment case in China—most practitioners and academics agree that much remains to be done to protect gays and lesbians from workplace discrimination.
To that end, several university professors, activists and social experts have been working for eight years to get a law enacted by the central government. A workplace antidiscrimination law that included protections for LGBT people was first drafted in 2008. In the years since, the group has periodically pushed for the annual National People's Congress in Beijing to pick up the cause.
Finally in 2015, the Financial and Economic Affairs Committee of the NPC agreed on the need for such legislation.
In June 2016, Liu Xiaonan, a professor at China University of Political Science and Law in Beijing and a member of the group pressing for a law, organized a seminar of experts and officials from the Ministry of Human Resources and Social Security. Liu was given a positive reception by ministry officials, providing new hope for such a law, she told Bloomberg BNA in a phone call Jan. 11.
While most practitioners interviewed by Bloomberg BNA agreed on the need for such a law, Chen of Covington & Burling said it could be counterproductive.
“Seeking specific labor protections for LGBT individuals may backfire as employers may simply avoid hiring LGBT individuals as employees at the outset if such laws are in place,” Chen told Bloomberg BNA.
Chen believes recognition of gay marriage “would be more useful.”
The big question is whether Chinese society is ready for such big social changes, which even in the West have come relatively suddenly in the last decade and remain controversial.
“I don't see things are getting any better in any meaningful way,” Yang said. “Occasionally we'd see this topic being discussed on media, but it's far from enough.”
As for getting a law passed, Yang said, “It's not likely to change anytime soon.”
Andy Yeo, a partner at the Mayer Brown law firm in Shanghai, said that while the LGBT community has seen some progress on social acceptance, the legal story has been quite different.
“There is hardly any progress on the treatment of gays/lesbians from the perspective of education, security, marriage, employment and the like,” Chen told Bloomberg BNA in a Jan. 11 e-mail.
As in the West, whether people support LGBT rights depends much on people's age.
“It's changing,” Chen said. “The younger generation appears to be more accepting and tolerant.”
Xu Bin, director of Common Language, which advocates for the LGBT community from its base in Beijing, sees enormous progress over the past two decades.
“In the past 20 years, there's been an earthshaking change in the treatment and acceptance of gender minorities,” she told Bloomberg BNA in a Jan. 10 phone interview, noting that homosexuality was decriminalized in 1997 and removed from the official list of mental diseases in 2001.
She credited the internet and social media with helping open up the discussion and cited several recent labor cases as providing at least a ray of light in the legal arena.
“In the past three years, the [LGBT] group themselves started appealing for legal protection,” Xu said. “The visibility of this group is getting more obvious and there are more influential lawsuits. For example, there's a university student suing the Ministry of Education because homosexuality is stated as an abnormal behavior in the university textbooks. And there's a gay couple suing the local marriage registration office because they were not allowed to register.”
Still, legal protection is almost nonexistent and court fights, even when won, often fail to result in a material victory, Liu said.
“There are no clear stipulations for compensation in our laws,” she noted in a Jan. 7 interview with Sixth Tone, a Chinese news portal. “Even plaintiffs who have won recent discrimination cases only received around 2,000 yuan ($290) in compensation—far less than the amount needed to recoup their legal fees. If this is the case, how many people would bother going to court? It makes the cost of breaking the law very low and fails to play a positive role in guiding employers.”
A well-documented crackdown on many forms of dissent under the regime of President Xi Jinping, including the jailing of hundreds of human rights lawyers over the last two years, raises the question of whether agitating for LGBT rights might involve some risk.
“Gender and sexuality used to be thought of as less-sensitive areas for rights activists to work on in China,” Yiu-tung Suen, an assistant professor in the gender studies program at the Chinese University of Hong Kong, told Bloomberg BNA in an e-mail. “This seems to be rapidly changing. In 2015, five women's rights activists were detained for weeks before they were released.”
“[F]ollowing the removal of hooliganism from the law (which was used to persecute homosexuality) and the removal of homosexuality from the list of mental illness in China, LGBT issues seem to [have] become less of a taboo in mainland China. [However,] politically LGBT issues could potentially be seen as sensitive when linked with the word ‘rights' or ‘legal protection,'” said Suen, who is the founding director of the university's Sexualities Research Program and associate director of the Gender Research Center of the Hong Kong Institute of Asia Pacific Studies. “It is especially the case as the LGBT movement is a very interconnected global social movement.”
“There may exist a risk of entry into this terrain, although not to the extent of human rights of a political nature like freedom of expression,” he said. “In the current social management system of the Chinese government, the pursuit of stability is the main rule. Given the current posture of ‘silence' regarding LGBT issues in Chinese law and the lack of active support by the Chinese government, aggressive human rights advocacy for LGBT groups is risky, but the result is probably non-response or apathy.”
Xu, who has been active in that arena for several years, sees little risk.
“I don't think it's politically sensitive to be involved in this terrain,” she told Bloomberg BNA. “Five years ago, maybe their lawsuits were not even accepted into the courts, so it is improving in accepting and hearing cases, but maybe it still takes some processes to get their rights and interests.”
To contact the reporter on this story: Mark Melnicoe in Shanghai at firstname.lastname@example.org
To contact the editor responsible for this story: Rick Vollmar at email@example.com
For more information on Chinese HR law and regulation, see the China primer.
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