BJ Courts Rule in a Landmark Transgender Discrimination Case
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This week, Chinese social media was awash with discussion on a court case related to the firing of a transgender employee at Beijing-based e-commerce giant Dangdang. The final ruling by the Beijing No. 2 Intermediary People's Court, in favor of the employee, was published on the court’s website in January of this year, and though it has major implications for the LGBT population of China, it took another six months for Chinese media to pick up on it.
According to the analysis of National Business Daily (nbd.com.cn), who first reported the story on Jul 4, an employee surnamed Gao traveled to Shanghai to be diagnosed with gender dysphoria and obtained medical documentation stating that she required gender reassignment surgery. However, Dangdang fired Gao in September 2018 claiming that the diagnosis was illegitimate and therefore could not be used as grounds for the medical leave she took for the surgery.
Lawyer, Beijing Daorong Law Firm
Gao claimed that the true reason behind her termination was discrimination, and in the case, she pointed to instances in which her colleagues had called her a “mental patient,” and said that she caused “restroom issues.” A Dongcheng district labor arbitrator ruled in favor of Gao in January of 2019, but Dangdang appealed the case. The court upheld the ruling, not only ordering that Gao be reinstated in her position and paid her agreed-upon monthly salary of RMB 51,259, but also that she be allowed to use the women’s restroom.
“The judge was not blinded by Dangdang’s claim that a serious violation had occurred,” Liu Minghui, a retired professor of the Law School of China Women’s University and lawyer at Beijing Daorong Law Firm, told the Beijinger. “Rather, the judge dug deeper to find the true reason behind the termination."
Director, Beijing LGBT Center
In the past, Liu has represented transgender clients in similar cases. She says that one such client was moved to tears upon hearing about Gao’s case. That client had lost a two-trial lawsuit related to discrimination. “It really was regrettable,” Liu said, adding, “Transgender people are certainly subject to employment discrimination, but some courts do not consider it to be employment discrimination.”
Where the issue gets complicated is in cases that Liu describes as “mixed-discrimination” – that is, where the decision to fire an employee is based on both legal and illegal motives. “As long as there is a factor of discrimination,” she says, “even if there are other legal grounds for dismissing the plaintiff, it should not affect the determination of discrimination.”
To be sure, there is a long road ahead for transgender rights in China, but there is also a struggle in Chinese society to talk about LGBT issues in the correct frame – most articles about Gao’s case referred to her using male pronouns, and headlines described her as a “male employee.” However, the director of the Beijing LGBT Center, Ying Xin, tells us that she is glad to see people talking about transgender issues as a result of the case.
“The case has paved the way for anti-discrimination law to include sexual orientation and gender identity expression, and it has inspired the community of transgender people in China,” she says, adding that, “It is difficult to measure the impact on public opinion in a measurable way, but the hashtag got 370,000,000 views, so there was a huge discussion from netizens.”
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Image: Baidu
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