Chinese court rules in favour of transgender woman over wrongful termination in landmark decision

A Chinese court has handed down a landmark decision in favour of a transgender woman who sued her employer for wrongful termination after undergoing sexual reassignment surgery.

E-commerce company Dangdang has been ordered to resume its labour contract with Ms Gao, a product director, and to recognise her new gender identity, including allowing the use of female bathrooms at the office. The company must also pay her overdue salary of about 120,000 yuan (£13,600) to cover a two-month leave of absence for the procedure.

Ms Gao’s case is the first time a Chinese court has directly addressed transgender workplace descrimination, issuing an “epic decision,” said Wang Yongmei, a lawyer who has worked on transgender discrimination cases.

The unusually progressive ruling, which urged the public to be open-minded and inclusive, went viral this week in China after initially falling under the radar amidst the coronavirus pandemic.

“We are used to understanding society based on our knowledge of biological gender, but there are still some people who want to express their gender identities through their own life experiences,” the court wrote in its January decision. “It is necessary for us to gradually change our attitudes.”

Everyone is entitled to “enjoy the right of equal employment without discrimination after their gender is changed through surgery and recognised by the public security bureau,” referring to the country’s police department where foreign and Chinese residents must register their personal details.

China’s transgender population of about four million faces much discrimination due to longstanding norms. The government continues to classify being transgender as a mental illness, even after the World Health Organization dropped it as a mental disorder last May, creating a new chapter for sexual health in its official manual of diagnoses.

Because of the stigma, transgender Chinese often don’t pursue legal cases – they’d rather keep their experiences out of the public record, on paper and online.

Many “don’t even know the law can protect them,” said Ms Wang. But “cases like this can prompt serious discussion in society, and allow people to realise what being transgender really means, and the rights or protection they should have.”

Transgender youth in China afraid of being rejected by their relatives have been driven to attempt sexual reassignment surgery on themselves and to self-medicate via a dangerous black market for drugs, according to Amnesty International, a human rights group.

Gender surgeries also require the consent of families, a “major barrier in accessing safe treatment,” Amnesty wrote in a report last year.

A 2017 study found that 12 per cent of transgender people in China are unemployed, about three times higher than the urban unemployment rate at the time. About 40 per cent also chose to suppress their gender identity at work over fear of discrimination, according to the study by the Beijing LGBT Centre, a non-profit.

A cottage industry of “conversion therapy” programs for trans and homosexual people also continues to exist in China.

A Beijing court first ruled in Ms Gao’s favour last year, four months after she was dismissed in September 2018. Dangdang appealed, though the court upheld its original decision, released earlier this year – a surprising move in a legal and judicial system that typically favours the employer.

Dangdang originally cited “mental health” and “absence from work” as reasons for dismissal, and claimed employees wouldn’t have “peace of mind” as both male and female colleagues had refused to share bathrooms with her.

The official notice was submitted as evidence that Ms Gao’s contract was terminated on the basis of her sex.

Dangdang didn’t respond to a request for comment, and Ms Gao couldn’t be reached as her identity has not been made public.

Uproar ensued on social media over the court’s ruling, with some in support of Ms Gao and others saying any company would have terminated someone after a long absence from work – regardless of gender identity.

“Being tolerant doesn’t mean you have to agree that it’s right,” one person posted online. “It means respecting the choices of others.”

“What Dangdang didn’t accept was not the fact that he changed his gender, but that he was absent from work,” wrote another.

Prior to Ms Gao’s case, another local Chinese court decided in 2016 in favour of a transgender man in a wrongful termination lawsuit, but decided his dismissal wasn’t a result of transgender discrimination.