Recent lawsuits cast spotlight on transgender rights

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A couple of recent lawsuits initiated by transgender individuals against their employers have attracted media attention in China.

In December 2019, a court in Hangzhou heard a dispute regarding the employment rights of a transgender individual named Jessy Ma. Ma underwent a gender confirmation surgery in October 2018, and when she returned to work two months later she was told to resign from her company. The company explained that they were unsure about how to assign Ma a position due to the ambiguity of her gender. Ma refused to accept the dismissal, so the company terminated her contract on the grounds that she was often late to work. Ma then began a proceeding against her employer for unfair dismissal and asked for 10,000 yuan in compensation. In January 2020, the court dismissed Ma’s request, arguing that there was insufficient evidence to back her claim that she was fired because of her transgender identity. Ma appealed her case to a higher court in Hangzhou. The second hearing took place on the 28th of May, but judgement has not yet been passed.

Jessy Ma is not alone in her troubles. A senior employee of Dangdang (当当网), a famous Chinese electronic commerce company, filed a request for arbitration with the Beijing Dongcheng District Committee on the Arbitration of Labour and Personnel Disputes for a similar reason in February 2019. The employee, surnamed Gao (the full name has not been disclosed), was diagnosed as a transsexual in April 2018 and as needing sex reassignment surgery. Gao asked the department manager for sick leave on the 27th of June and got approval. On the same day, Gao was admitted into hospital to prepare for the surgery. After the surgery, the doctor suggested Gao to take a few weeks off before returning to work, therefore Gao contacted the department manager again on the 17th of July for a longer sick leave.The manager approved the request and asked for the relevant medical certificates, which Gao sent as required. However, on the 6th of September 2018 Gao received a notice of termination. The company gave a couple of reasons for the decision related to the employment rules, including the rules on employees’ sick leave. However, Gao felt the company and other employees’ concerns over the change of gender were also a deciding factor.

When the Committee on the Arbitration of Labour and Personnel Disputes concluded that Dangdang should restore its contract with Gao, the company was not pleased with the result and appealed to a court of law. The court heard the case in 2019 and ruled that the termination of the contract was illegal. Dangdang appealed again to a higher court. In January 2020 the court announced its final decision, mandating that Dangdang should continue to employ Gao and accept Gao’s new gender identity.

The judge delivered an impactful conclusion to the ruling: “We used to understand society according to the gender of different people, however, there are some people who will need to express their gender identities based on their own understandings and life experience. This phenomenon, which always exists in any society, demands that we re-recognise and relearn (human society). This recognition and learning might be a very long process, but the fact is, more and more people choose to be more tolerant and supportive, and indeed we have to gradually change our attitudes (towards people’s gender identities). Only if we accept the diverse lifestyles of different people are we able to gain a more vibrant attitude towards culture, which will become the foundation of a society that respects the rule of law. Perhaps that is why academics point out that ‘a merciful society is a blessing for the rule of law’. We respect and protect the dignity, self-esteem and other lawful rights of transgender individuals, and this statement is based on the fact that we value citizen’s dignity and rights, rather than because we advocate and promote the concept of transsexualism.

Legal cases like the two above have put the rights of transgender individuals in China in the spotlight, and led to heated discussions among the public. It is estimated that there are over four million transgender people in China, and this group is often invisible but undoubtedly deserves more attention from the public, the job market, the legislative institutions and the government. The judge’s decision on Gao’s case has given transgender groups a glimpse of hope, nevertheless substantial changes demand efforts from both transgender individuals and the rest of the society. Discrimination in the work place is merely the tip of the iceberg, and more transgender-related rights issues have to be recognised, analysed, discussed and reviewed to provide evidence for foundational social and policy changes.