Research On The Employment Discrimination Of Transgender People In China

Gender identity is a deep understanding of one's own gender,which is also called psychological gender.Usually,the individual's gender identity is consistent with the physiological gender at birth,but there are also some groups.Their real psychological gender identity is not consistent with their physiological gender,which results in the phenomenon that physiological men think they should belong to women or physiological women think they should belong to men.These people are called transsexuals.Transgender people face different degrees of discrimination in employment in many countries.Labor and employment are not only the need for human survival,but also the basic way for individuals to achieve comprehensive development.To enable transgender people to enjoy equal employment rights is conducive to the protection of the right to subsistence and development of transgender people.Therefore,discrimination in the field of employment deserves special attention.The main points of this paper are as follows:Chapter one elaborates the current situation of transgender discrimination in employment in China.Transgender refers to a person who is psychologically unable to identify with his inherent physiological gender and believes that he should belong to another gender.Gender identity disorders are also frequently used in medical professions to explain transgender people.The formation of gender identity disorder is related to physiological factors and environmental factors.Once gender identity is formed,it will not change easily.Most people will only maintain a single gender identity in their life.Discrimination against transgender people mainly includes discrimination against their gender identity,gender orientation and gender expression.The source of discrimination against transgender people is a variety of gender paradigms shaped by many factors,such as history,power,cultural customs,etc.-the binary classification criteria of men and women(only two kinds of gender),and the temperament of men and women(men should be strong,women should be weak).This process of construction will eventually "hide" its traces of formation,and further dress up as a natural state,and eventually become a social paradigm with the help of the power system.Transgender is stigmatized and pathologized because the gender expression of transgender groups does not meet the gender expectations of traditional social concepts.In fact,the social paradigm has strict rules on the behavior of men and women.The social paradigm holds that men should behave strong,while women should behave gentle,and requires all people in society to obey.Under such a gender system,if a woman wants to become a man,or a man wants to become a woman,she will be regarded as a betrayer of her physiological gender and regarded as an alternative.Therefore,the author believes that the gender paradigm constructed by society should not be the reason for transgender discrimination.In the second chapter,the author mainly discusses the legitimacy of the protection of equal employment rights for transgender people.Firstly,in terms of the realistic demand for the protection of the equal employment rights of transgender people,the scope of employment discrimination prohibited in our country at present mainly includes seven kinds.Gender identity and gender expression are not included.It is for this reason that in the first transgender employment discrimination case in China,the court did not define unreasonable discrimination against transgender as employment discrimination.Secondly,in terms of the theoretical basis for the protection of the equal employment rights of transgender people,the author demonstrates it from two aspects:the theory of free value and the theory of equal value.From the perspective of liberalism,Mill put forward the principle of "freedom without harm".He believed that as long as individual behavior did not harm others,there would be complete freedom,and other people and society would not have the right to interfere.Free gender expression by transgender people does not infringe on the interests of others.Although "betraying" the dual classification system of men and women,the dual classification of men and women is the result of social construction rather than a "natural" existence.The emotional "offence" caused by transgender people to some homophobic persons cannot constitute infringement in the legal sense.From the perspective of egalitarianism,secondly,the employment discrimination against transgender people violates Rawls' principle of fair equality of opportunity and principle of difference,resulting in a significant imbalance in the distribution of job opportunities between transgender and gender groups,forming the Matthew effect.Thirdly,with regard to the value concerns of the protection of equal employment rights for transgender workers,on the one hand,discrimination against transgender workers in employment is contrary to the principles of human rights advocated by the Constitution of China and the Universal Declaration of Human Rights,violating the human dignity rights of transgender workers;on the other hand,discrimination against transgender people will not only bring losses to transgender workers themselves,but also to employers and society.Not a small amount of economic losses.Chapter three elaborates the extraterritorial experience of equal employment security for transgender people.International legislation has transcended the inherent gender paradigm and embodied the legislative trend of gender pluralism.Macao's legislation prohibits discrimination on sexual orientation in the field of employment.Taiwan prohibits discrimination based on gender identity and sexual orientation in the fields of employment and education.At present,Hong Kong has not promulgated any laws concerning the prohibition of gender identity and sexual orientation discrimination.In the Price Water House v.Hopkins case,the Supreme Court of the United States expanded the definition of "gender discrimination" to "gender-related discrimination" and realized the protection of transgender people.In the fourth chapter,the author conceives the equal employment security system for transgender people in China.(1)Revising the current effective Chinese Classification and Diagnosis Criteria for Mental Disorders(CCMD-3)to achieve transgender medical de-illness;(2)arousing social attention to the employment rights and interests of transgender peoplethrough influential litigation,providing reference and safeguarding basis for subsequent cases,and accelerating the reform of the system.(3)There are three ways to establish a legal support system for the equal employment rights of transgender persons: first,through judicial interpretation,"gender discrimination" can be expanded to cover discrimination of sexual orientation,gender identity and gender expression;second,the Anti-employment Disagreement Law of the People's Republic of China has been promulgated to explicitly prohibit discrimination against transgender persons in terms of gender identity and gender expression.Thirdly,the Employment Promotion Law should be amended to include gender identity,gender expression and sexual orientation as prohibitions against discrimination in the Employment Promotion Law.In view of the issue of equal employment rights of transgender people,the author believes that to judge whether the differential treatment of transgender people constitutes gender discrimination in employment can be judged through the following two steps: first,to judge whether the cause of differential treatment constitutes "real professional qualification",if it constitutes "real professional qualification",it does not constitute employment discrimination;and if the cause of differential treatment constitutes "real professional qualification",it does not constitute employment discrimination;If it does not constitute "true professional qualification",the second step is to judge and make purposeful analysis to see whether the reasons for employer's differential treatment are contrary to the legislative purpose.If the cause of differential treatment does not constitute "true professional qualification",but conforms to the principle of legislative purpose,it does not constitute employment discrimination.Among them,the differential treatment acts which can be used as the legislative purpose of employment discrimination can be derived from the following reasons: the requirements based on physiological gender characteristics,the requirements of solemnity and privacy protection,the requirements of customs or laws in other areas,The requirement of gender authenticity is maintained;if the cause of discrimination does not constitute "true professional qualification" and does not meet the legislative purpose,it constitutes employment discrimination.