Lecture on the constitutional safeguarding of the rights of the trans-gendered in China was successfully held2019/1/30
On January 4th,the Human Rights Research Center of Renmin University invited Prof. Zhou Wei,dean of the human rights research center of SiChuan University, to give a lecture on the constitutional safeguarding of the rights of the trans-gendered in China. The lecture was hosted by Associate Professor Lu Haina, general secretary of RUC human rights research center. Besides, the lecture was also one of the activities supported by the “protection of LGBTI’s equal rights towork” program co-operated by Renmin University and Yale, as well as a follow-up activity of Renmin human rights research center’s “Week of the constitution and human rights”. Prof. Lu gave an introduction to some influential cases represented by Prof. Zhou, which involved anti-discrimination against height,territory, social background and gene. Prof. Han Dayuan from RUC, Prof. LiuZhigang from FDU, Mr. Darius from the China Law Center of Yale University,Officer Yang from UN and Mr. Tang Xiangqian, together with some other students also attended the lecture.
Prof.Zhou built the lecture on four different aspects: 1、Why do the trans-gendered need constitutional safeguarding; 2、overseas legislation to protect their rights; 3、cases involving trans-gendered individuals in our country; 4、the protection for the rights of the trans-gendered under the constitutional equality.
At the very beginning, Prof. Zhou mentioned Chinese first response to LGBT-oriented questions in UN in 2018. The representation of Chinese government said that our country had always respected the health right of LGBT group and had granted them equal social insurance. Moreover, their right to sexual reassignment surgery were protected. Currently, our country’s not giving LGBTand homosexual citizens entitlement to marriage is not a discrimination but isdecided by our long-held historical and cultural value. After that, Prof. Zhou began to explain the reason why the minority’s rights need to be protected. Hestarted by telling the difference between a series of concepts including sexand gender, social sex and physical sex, sex identification and the expression of sex. Most importantly, he introduced the definition of trans-gendered individual given by APS (The Association for Psychological Science), which isthat the trans-gendered is a general designation referring to those whose sexidentification or sex expression is inconsistent with the sex they were bornwith. Prof. Zhou also gave some examples of the famous trans-gendered persons and events, and introduced the number of trans-gendered individuals and their living conditions by giving pictures and interview videos. From these sources,Prof. Zhou presented the participants a visualized picture of the reality problems that trans-gendered people are facing, such as the inconsistency between actual person and their ID, the discrimination in job market,education, poor living conditions and sexual reassignment surgery. This is also why the trans-gendered rights should not be neglected and should be protected by the constitution.
Following that, Prof. Zhou compared the overseas legislation as well as their practiceand cases of safeguarding the trans-gendered rights. For example, Netherland,Britain, Thailand, Pakistan, US and Australia all had their own legislation to protect the rights of trans-gendered group. Prof. Zhou pointed out that every country had their own traditions and cultures and their legislator shall adapt to the development of the society as well as the demand of citizens so that freedom and equality of the society would not be harmed.
After the introduction to overseas legislation, Prof. Zhou returned to the cases in our own country, one of which is the one tried by GuiYang intermediate people’scourt. The core issue of the case was that whether sex discrimination was involved in the case. The written order of second instance, for the first time,clearly stated that the individual sex identification and sex expression was within the protection of the general personality rights. Therefore, the employer shall not discriminate the employee based on their sex identification or sex expression. The first instance adjudicated that the plaintiff’s equal right to work should be protected but whether such act constituted discrimination couldn’t be decided. However, the second instance affirmed the original judgment due to a lack of evidence and did not require the employer to apologize or confirm the existence of discrimination. Prof. Zhou emphasized the importance of the tolerance to “promoting the construction of a community of human destiny”. As a matter of fact, how a society treats LGBT group is a key indicator of evaluating the tolerance of a society. Considering the close relation between sex and law, the diversity of individuals should never be neglected, however small their number is.
Prof.Zhou analyzed the dilemma that trans-gendered rights protection faced from various aspects such as legal system, legislation draft, legislative precedent and administrative measure. For example, our country only made technical rules about the identification of mental disturbance and disease in normative documents. However, sex equality must be implemented into the constitution level. Fortunately, the government have come to realize this problem.
As for the significant issues of gender emancipation, Prof. Zhou reviewed some progressive ideology since the founding of PRC and the 4th FWCW in1995. However, he pointed out a lack of consensus on multiple sex in oursociety.
Based on such reality, Prof. Zhou suggested their rights be protected under the Constitution. He also learned from the rules of trans-gendered rights inseveral international documents and proposed three aspects in which our country could improve the rights of trans-gendered individuals: (1) to rule in the Constitution that trans-gendered individuals shall be protected under the equal protection principle; (2)to add the content of protection for sex identification and sex expression in special laws; (3) to require guidance for typical cases from Supreme Court. Then he further prospected the rights protection of the trans-gendered from different aspects.
In the Q&A section, Prof. Zhou responded to the questions raised by the students.
In the section of concluding and commenting, Prof. Han Dayuan first thanked Prof.Zhou for his excellent lecture and spoke highly of his humanitarian value as a Constitutional scholar. By representing cases, Prof. Zhou brought the Constitution into everyday life and made great contribution to this progress.Prof. Han also spoke of his own opinions on trans-gender issues. He pointed out that article 33 of the Constitution rules that our country respects and safeguards human rights, which included two principles: right of equality, the value of the whole society. To add human rights to the constitution actuallychanged the subject of the right of equality, which should not only be citizens but should include everyone. As a principle of rule of law, the principle of human rights should be a part of the principle of equality. Whether to take the trans-gender surgery or when to take the surgery is individual’s own choice because the core of every kind of right is the right of choice, which is also the core of the Constitution. On one hand, to respect the personal choice is acountry’s passive obligation. On the other hand, the government is obliged tocreate a transgender-friendly environment and medical conditions under which people will be able to take trans-gender surgeries. Besides, Article 38 and 51of the Constitution should also be contained in the meaning of Article 33. In the end, Prof. Han hoped that everyone should have faith in the Constitution,for the constitutional spirit is the inner motive of the whole society and has long been fueling the progress of social ethos. Human, as a unique being, is one-of-a-kind and valuable. We believe that even if there was only one person choosing to live this way (trans-gender), our country and our society should fully guarantee his or her rights. Our problem about LGBTI group is the one about our attitude of treating them differently. Instead, we need to respect the uniqueness of individuals and the tolerance of the society.