Dec 7, 2023

South China Morning Post Court win by staffer fired by e-commerce firm helps extend transgender rights in China Company calls trans employee ‘mental patient’ and threat to other staff Details have emerged of a judicial decision by a Beijing court in 2020 which upholds the rights of a transgender woman who was fired for being “absent” after she took time off to recover from gender reassignment surgery. The previously unknown details, which have reignited discussions about equal employment rights in China, were posted online by the Shanghai Federation Trade Unions on November 29. The case involves a transgender employee of the Chinese e-commerce platform Dangdang, surnamed Gao, who took her employer to court after it fired her for being “absence” in 2018 after she applied for sick leave with her supervisor on the day of her gender reassignment surgery. Gao submitted a medical certificate and documented the doctor’s advice that she needed two months off work after the surgery. Her application for leave was affirmed by her superior but human resources staff rejected her application saying her certificates contained “unclear content and cannot prove sickness”. During a sick-leave dispute, the company referred to the transgender woman employee as “Mr”. Photo: Shutterstock Gao was fired by the company two months after she first applied for sick leave, and two months after that she formally sought labour dispute arbitration. A letter the company sent Gao following her reassignment surgery was used by her as evidence of unlawful dismissal. In the letter, the company addressed Gao as “Mr”, referred to her as a “mental patient” and said that they had to “protect” other employees from her. In 2018, the World Health Organisation dropped “gender identity disorder” from its International Classification of Diseases, known as ICD-11, in a move to uphold transgender rights. China’s National Health Commission translated the ICD-11 and promoted its guidelines in medical institutions nationwide. The outcome was that the Beijing court supported Gao on two counts and ruled that Dangdang should continue to honour her original contract of employment. In addition, the court said Dangdang should pay her salary from the date she applied for sick leave to the date of arbitration, which amounts to 128,028 yuan (US$18,000). The Beijing No 2 Intermediate People’s Court went on to state that “social tolerance is a blessing of the rule of law” and highlighted the need to “respect diverse ways of living and protect the dignity of transgender people.” According to the 2021 National Transgender Health Survey Report by the non-profit organisation, Beijing LGBT Centre, the unemployment rate in the transgender community was 15.9 per cent, much higher than China’s registered urban unemployment rate of 3.96 per cent in the same year. Half of the 7,600 transgender respondents to the survey said they did not express their gender identity at work and 34 per cent said they had encountered workplace discrimination including rejection, isolation and harassment. Of the 293 respondents who had gone through gender reassignment surgery, a third said they continued to use the gender they were assigned with at birth, mostly due to “pressure from workplace and parents”. On January 1, 2019, the Supreme People’s Court of China included “dispute over equal employment rights” as a cause of action with which discriminated employees could defend their rights by filing a lawsuit. The Beijing ruling is in line with international norms when it comes to the rights of the LGBTQ+ community. Photo: Shutterstock A Beijing lawyer, who has been studying the issues and requested anonymity, told the Post that the cause of action had been generally only applied at the job-seeking stage of the employment process, this left the transgender sector unprotected against actual on-the-job workplace discrimination. But she praised the efforts of policymakers in working to improve the living conditions of transgender people in China. In 2022, the National Health Commission updated its regulations on gender reassignment surgery. The new regulations lowered the minimum age for surgery from 20 to 18 and removed a previous requirement that transgender people should have psychological or psychiatric treatment and assessment for a year before surgery, winning applause from the mainland LGBTQ+ community. Post