To mark Pride Month, we examine the continuing discrimination faced by transgender employees in China despite a landmark legal ruling last year.
In the two years since she got fired by her former employer after gender reassignment surgery, Ms. Ma has only been able to find odd jobs - voice acting, podcasting, etc.
“To get a job, I don’t intentionally reveal my transgender identity to my new employer,” Ma said. “Sometimes the recruiter would shout ‘renyao’ (a derogatory term loosely translated as ladyboy) at first glance. It was really humiliating.”
Ma’s former employer, an entertainment company in Hangzhou, abruptly ended her employment contract in 2019, telling her that, after her gender reassignment surgery, they couldn’t decide whether she should work with male or female clients.
Ma later filed a lawsuit against the company on the grounds of violating her right to equal employment. This was the first time a transgender person had used this legal provision in an employment dispute, although there had been earlier transgender rights cases filed on the grounds of illegal dismissal.
In 2020, the court ruled against Ma in favour of her employer, citing the company’s autonomy in making employment decisions. “The company said they fired me because I was late for work,” Ma said. “It was clearly an excuse; we had a flexible schedule, and many other employees were fine despite the fact that they were often late, too.”
Photograph. Ludovic Bertron, reproduced under a creative commons license.
Ma’s story mirrors the broader plight of transgender employees at workplaces in China. According to a 2017 report, the unemployment rate among the transgender population is nearly 12 percent - three times higher than the official national rate at the time. Another study conducted in 2016 showed that 14.3 percent of its respondents had been denied employment because of their sexual orientation or gender identity.
In May 2021, the Beijing LGBT Center released an extensive survey, LGBTI Diversity and Inclusion in Corporation in China, published with support of the United Nations Development Program. Among 122 companies surveyed, only 13.9 percent had official rules covering anti-discrimination and equal opportunities, and fewer than ten percent had programs on diversity training or LGBTI employee resources groups.
One of a few legal victories for transgender people’s workplace disputes took place in 2020, when a Beijing court ruled that e-commerce platform Dangdang had illegally fired a transgender employee, surnmade Gao, after she took two months’ leave for gender reassignment surgery in 2018.
“The trend of modern society is towards increasingly rich diversity,” the verdict read. “We are accustomed to understanding society through our conception of biological sex, but there are some people who express their gender identity in accordance with their own life experience. This kind of social expression - the existence of which is sustained - often requires us to renew our understanding and how we look at things.”
The court ruled that Dangdang should pay Gao her overdue salary of about 120,000 yuan. It also said that she had the right to use the office’s women’s toilet, and that other colleagues should respect her identity. The intermediate court emphasized the legal recognition of her changed sex in dismissing her coworkers’ discomfort.
However, in the time between the initial court decision and the appeal, Dangdang sent Gao a brazenly offensive letter that addressed her as “Mr.” and asked that she consider bringing her own security guard to work, in case, as a “mentally ill person,” she had an “episode” and violently attacked her colleagues.
Gao’s case is regarded as the clearest legal victory to-date for protecting transgender individuals’ rights in the workplace. However, the case was handled as a labour dispute not an equal right to employment case. Darius Longarino, a fellow at Yale Law School’s Paul Tsai China Center, pointed out:
“The courts did not say that all people should be treated equally regardless of their gender identity. The courts’ analysis focused on how Gao satisfied the regulatory criteria for transitioning from one legally recognized gender to another.”
Winning a successful transgender discrimination lawsuit will remain an uphill battle, according to Liu Minghui, law professor at China Women’s University, who noted that plaintiffs need to carry the burden of proof, which can be difficult to satisfy.
“People nowadays are becoming more empathetic with transgender people, with the media coverage of those law cases playing an important role,” Liu said. “But a lot of work has to be done to create a safe working environment for LGBT employees.”
Please see our explainer on workplace discrimination in China for a broader discussion of this issue.
Correction: An earlier version of this article quoted staff from the Beijing LGBT Center. The Center wishes to stress that it did not knowingly talk to China Labour Bulletin on this issue. We apologise for any misunderstanding.