Chinese trans man fights against discrimination in first ever legal case

Mr. C, a transgender man from southwest China’s Guizhou province, failed to get an apology from his former employer on Wednesday, who fired him last April for not wearing female dress.

Mr. C and his former employer, Guizhou Ciming health center, sat face to face at a local labor arbitration committee through which Mr. C was supposed to be given an apology or at least a persuasive explanation on why he was fired.

In a telephone interview with the Sino-US.com, Mr. C said that the real reason why his former employer fired him was because he was homosexual and had an opposite gender expression to the convention. However, during the adjustment at the committee, representatives from Ciming health center said it was because he didn’t wear female dress at work as was required by the center.

It is the first case in China in which a transgender person is taking legal action against sexual discrimination at workplace.

Mr. C is holding a notice from the labor arbitration committee of Yunyan district in Guiyang, the capital of Guizhou province, who accepted his arbitration application on Ciming health center. Photo provided to Sino-US.com

Fighting back

“I am a transgender man, Mr. C. Please use ‘he’ to describe me,” Mr. C told the Sino-US.com through WeChat.

Mr. C, who denied his first name was Chen as used by the Chinese media previously, worked at the health center for seven days in April 2015 before he was fired.

“I didn’t know well about the law in the past until I attended a law forum this January when I came to realize that what Ciming had done to me was probably against the law. That’s when I realized that I should protect my own right,” Mr. C told thepaper.cn last month.

On March 7, two days after the opening of the National People’s Congress (NPC), he applied for labor arbitration to the labor arbitration committee of Yunyan district in Guiyang, the capital of Guizhou province, for salary, compensation, and a written apology from Ciming health center. The committee accepted Mr. C’s application on March 14.

A journalism graduate, Mr. C worked as an intern at a TV station for one year. After that, he worked at an insurance company and then ran a startup for some time before he found the job as a salesperson at Ciming health center.

Mr. C said that after he entered the workplace, he had always been required to dress like a woman, otherwise people would think he was not qualified, according to thepaper.cn.

Since Mr. C was fired, he has not found a new job. He said this issue had left a “huge shadow in his heart.”

“I don’t know how to explain why I don’t have a job for such a long time during a job interview,” Mr. C told the Sino-US.com.

Ambiguous rules

Mr. C’s demands to the committee, however, were not accepted by the representatives from Ciming center during the adjustment, except the first one for salary. But the center only agreed to pay Mr. C for four work days.

“They denied my second and third requests, so the adjustment failed,” Mr. C said.

Mr. C’s lawyer Huang Sha said that during the adjustment, the representatives revealed that the center fired Mr. C because Mr. C is a woman and the company’s regulation stipulates that a woman should wear women’s dress. However, the representatives didn’t show any official document containing the company’s regulation, Huang said.

“The company should show its regulation to the employees who should agree with the regulation. Meanwhile, the regulation should also be put on record at the industrial and commercial bureau. It is illegal to fire an employee unilaterally without these three procedures,” Huang told the Sino-US.com.

According to the Chinese labor law, only when an employee “seriously violates the company’s regulation” can the company fire the employee unilaterally, said Huang.

However, even if the center does have a formal regulation which legitimizes the company to fire Mr. C, it is still a kind of sexual discrimination to some extent, said Huang, adding that what is legal may not be reasonable.

“Fundamentally, everyone has the freedom to express their gender. While some like dressing up like a man, others may do like a woman. But when it comes to job, it should only be related to one’s work ability instead of the dressing,” Huang remarked.

The labor arbitration committee will officially hear Mr. C’s case on April 11, and if the center fails to compensate and apologize, Mr. C can file the case to the local court.

“Through the first and second demands, I am only trying to take back what belongs to me. Money is not what I care about. What I really care is the last demand,” Mr. C said.

Mr. C (right) and his lawyer Huang Sha (left) Photo provided to Sino-US.com

Lack of legal basis

According to Yanzi, the head of the LGBT rights advocacy China group, it is the first case in China in which a transgender person is taking legal action against sexual discrimination at workplace, while there are still many LGBTs facing employment discrimination because of their sexual orientation, sexual expression and sexual cognition.

One of the reasons why Chinese LGBTs tend to keep quiet when facing discrimination is the lack of specific legal provisions that they can use to defend themselves, according to Liu Xiaonan, an associate professor at China University of Political Science and Law.

“The current law has too few provisions about LGBTs, and it is also hard for judges to make judgment sometimes. But discriminations do exist in real life, so it is very hard for LGBTs to defend their rights when facing discrimination,” Liu told the Sino-US.com.

In fact, Chinese government has been paying close attention to employment discrimination in the past two years, and the Ministry of Education and the General Office of the State Council have sent notices to employers every spring since 2013 to prevent any form of discrimination and inequality, Liu said, adding that there are actually some articles banning employment discrimination in the current law.

However, the problem is these articles are still “too general” and hard to form a complete system, Liu noted.

Liu is also one of the members of the draft team which proposed a law on employment discrimination in 2008 with several Chinese NPC delegates who have the right to raise issues for people at the grassroots. The daft which aims to eliminate any form of discrimination also prevents bias against LGBTs.

The employment discrimination draft had also been discussed by policymakers during the 2015 and 2016 NPC sessions. However, the draft is yet to be included in Chinese government’s law-making process, and there is still a long way to go, Liu said.

“China’s domestic violence law took into effect in March, and the making of the law took over twenty years. The legislation on employment discrimination could take longer, as it not only concerns LGBTs, but is also to the benefit of everybody.”

According to Liu, once the law is passed, it will not only guarantee the rights of sexual minorities, but also provide “clearer legal basis” for the judges when dealing with cases relating to sexual discrimination.

“Previously, in some cases relating to homosexuality, the judges rarely talked about the essential part of homosexuality. Instead, they usually talked about cases from the perspective of evidence and procedures,” Liu said.


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