Diversity and Inclusion of LGBTI People at Chinese Workplaces. The Corporate Sector as an Agent of Change?

Table of Contents

1. Introduction

2. Legal framework of LGBTI life in China
2.1 International norms
2.2 International norms targeting workspace
2.3 National law
2.4 National law targeting workspace

3. Chinese LGBTI perceptions of corporate culture
3.1 Access to education, vocational training and guidance
3.2 Access to employment
3.3 Conditions of work
3.4 Equal remuneration for work of equal value, career development and security of tenure

4. The economic dimension of ex- and inclusion of LGBTI workers
4.1 The price of exclusion
4.2 The benefits of inclusion

5. Conclusion

6. List of references

“There have been arguments about whether companies use LGBT marketing as a gimmick, But whatever their purposes are, they’re making LGBT people more visible. It’s a good thing, and the impact of the economy as the force of social progress is beyond our imagination.” Geng Le, founder and CEO of Blued (Fullerton 2017)

1. Introduction

It is estimated that around 70 million LGBTI (Lesbian, Gay, Bisexual and Transgender and Intersex¹ ) are living in the People's Republic of China (PRC)² (Fullerton 2017). Of those only 5% are estimated to live openly (UNDP 2016, pp. 6). The workplace is the last place where Chinese LGBTI people disclose their SOGIE (Sexual Orientation and Gender Identity and Expression). On the other hand, the workplace is also among the daily life environments with the lowest rate of discrimination contrasting high rates of discrimination at the family and the school (UNDP 2016, pp. 8).

This term paper is about the current situation of LGBTI employees in China and the way companies deal with the LGBTI issue. This paper mainly focuses on the triangle of businesses, their employees and the market itself, dealing with non-governmental organizations (NGO) and the lawmaker only marginally. The research question is whether the corporate sector can act as an agent of change, a promoter and driving force of LGBTI rights in China. This question shall be answered by analyzing several empirical surveys dealing with LGBTI peoples' perceptions of their workplace experience. Although the data is relatively new and comprehensive in the case of China, this term paper occasionally refers to data from different countries and regions. The author of this term paper is well aware that India and China and even Hong Kong and China are hardly comparable and acknowledges the limitations of those transfer implications (see 4.1 The price of exclusion; 4.2 The benefits of inclusion). Nevertheless, it is assumed that fundamental tendencies of those quoted findings are universal and transferable to China too.

Chapter two “Legal framework of LGBTI life in China” focuses on international norms affecting LGBTI life in general and at workplaces specifically. It is also considered necessary to take a look at the national law on LGBTI life as well as recent trials dealing with LGBTI issues.

Chapter three “Chinese LGBTI perceptions of corporate culture” gathers the findings of three recent surveys dealing with LGBTI employees working experiences in China. In doing so the author follows the approach of the United Nations Development Programme (UNDP) and the International Labour Organization (ILO) that LGBTI people face discrimination throughout the whole employment cycle.

Chapter four “The economic dimension of ex- and inclusion of LGBTI employees” analyses Chinese businesses as actors in dealing with LGBTI issues and potential cost and benefits they are facing implied by their way of conduct. The conclusion finally seeks to answer the research question laid out above by summarizing all findings worked out before.

2. Legal framework of LGBTI life in China

2.1 International norms

The Universal Declaration of Human Rights was negotiated by and signed by China, that days the Republic of China, in 1948. Regardless the issue whether the People's Republic of China can be juristically held accountable for the application of the declaration or only the Republic of China, there is no direct mention of SOGIE within the declaration at all.

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (United Nations 1948, Article 2)

The first-ever UN resolution on human rights, sexual orientation and gender identity was issued in June 2011 and was succeeded by two follow-up resolutions in September 2014 and June 2016. China abstained in the vote on the two prior resolutions (UNDP und ILO 2018, pp. 24). Moreover, due to the fact that UN resolutions are recommendations they are of non-binding character for the PRC. Since the historic resolution in 2011 all organizations under the UN umbrella have increasingly addressed issues regarding the LGBTI community, e. g. the launch of the global education campaign “Free & Equal” to promote the fair treatment of LGBTI people (UNDP und ILO 2018, pp. 25).

2.2 International norms targeting workspace

Since the Declaration of Human Rights in 1948 the United Nations launched several initiatives to increase compatibility of human rights and doing business. The non-binding pact “UN Global Compact” was launched in 2000 and consists of ten principals. Principle No. 6 aims for “the elimination of discrimination in respect of employment and occupation ” (UN Global Compact 2000). There is also a Global Compact Network China taking part, publishing annual reports etc. (Global Compact Network China 2010). The Global Compact Network China has currently 264 companies participating (compared to 548 in the US, 468 in Germany and 295 in Japan)³. In 2011, the UN Human Rights Council endorsed the “UN Guiding Principles on Business and Human Rights”. The Guiding Principles state that States' are obliged to respect human rights, business enterprises are required to respect human rights and all of them have them have to provide remedies when human rights are breached (United Nations Human Rights 2011, pp. 1). The Guiding Principles also make LGBTI rights at working places a matter of discussion, although still cautiously. States and companies should engage in LGBTI issues “by gaining an understanding of the situation of LGBTI persons in countries where they carry out their business activities.” (United Nations Human Rights 2017, pp. 17).

The implementation of the “Standards of Conduct for Business on Tackling Anti-LGBTI Discrimination” was another turning point in the settlement of international norms for the protection of LGBTI individuals in workplaces. The five standards are as followed: 1. Respect human rights - including rights of LGBTI people 2. Eliminate discrimination of LGBTI employees in the workplace 3. Provide support for LGBT individuals in the workplace 4. Prevent other Human Rights violations in the marketplace by ensuring there is no discrimination of LGBTI suppliers, distributors or customers 5. Act in the public sphere to encourage LGBTI rights in their respective countries (United Nations Human Rights 2017, pp. 5-6). The standards outlined are created to be used as a kind of reference booklet and example of good practice. The Office of the High Commissioner of United Nations Human Rights calls companies to endorse those standards.

The ILO issued several anti-discrimination regulations too, which are also ratified by the PRC (UNDP und ILO 2018, pp. 23). Convention No. 1009 addresses pay discrimination on the ground of sex amongst others, whereas Convention No. 111 prohibits discrimination against all employees on the grounds of race, color, sex, religion, political opinion, national extraction and social origin. Like most of the UN regulations (with the exception of the Standards of Conduct), the grounds of SOGIE are not specifically stated in the ILO Conventions (UNDP und ILO 2018, pp. 21).

2.3 National law

In the 1982 Constitution of the PRC is stated that “All citizens of the People's Republic of China are equal before the law. The State respects and preserves human rights.” (The State Council of the People's Republic of China 2014, Chapter II, Article 33). The Chinese Constitution and laws provide a lot of anti-discrimination regulations on the protection of women, the disabled, minors and seniors, and laws on employment and so on (UNDP und USAID 2014, pp. 23). Yet, in the case of the LGBTI community, the PRC government remains rather reluctant, at least ambivalent. National as well as subnational government agencies are following a “not encouraging, not discouraging, not promoting” attitude (UNDP und USAID 2014, pp. 24). Still, China does not provide any legal protection to LGBTI people (UNDP und ILO 2018). There is no law existent in Mainland China that prohibits discrimination based on SOGIE.⁴

However, homosexuality was never directly illegal. The introduction of the so called anti­hooliganism law in 1979 criminalized male homosexuality⁵ in relation to sexual assault (forced anal sex with a minor) (UNDP und USAID 2014, pp. 8). Although the law did not actively criminalized homosexuality it was often misused to harass gay men (UNDP und USAID 2014, pp. 23). The abolishment of the anti-hooliganism law in 1997 was followed by the removal of homosexuality in the Chinese Classification and Diagnostic Criteria of Mental Disorders (CCMD) in 2001.

Despite those milestones the LGBTI community in China still faces legal frontiers. The Chinese Marriage Law defines marriage as an exclusive union of men and women, same-sex couples are not eligible for shared property rights, inheritance rights, adoption of children and so on. Rape is clearly defined as a forced act committed against woman only. LGBTI individuals entering a heterosexual marriage can be made responsible for monetary compensation as sexual orientation others than heterosexuality can be a reason for divorce.

“Transgenderism” is still categorized as mental disorder in CCMD. Nonetheless, Transgender people are allowed to change their gender on ID cards and household registration, but procedures are long and expensive. Legal preconditions for the so called sex-reassignment surgery (SRS) issued by the Ministry of Health in 2009 are being diagnosed with “Transgenderism”, participation in therapy sessions, family consent, removal of existing genitalia, being at least 20 years of age, unmarried, and having no criminal record (UNDP und ILO 2018, pp. 29). Moreover, there is no entitlement for changing other official documents, such as university degrees post hoc. This creates obstacles for transgender people throughout the employment circle (UNDP 2016, pp. 24).

Intersex people are not even mentioned in laws of the PRC (UNDP und ILO 2018, pp. 9) and often subjected to nonconsensual genital surgeries directly after birth (UNDP und ILO 2018, pp. 29).

Next to personal boundaries by LGBTI individuals as listed above, the government is banning LGBTI content in the main stream media. Popular drama series are removed from online platforms in early 2016 by the State Administration of Press, Publication, Radio, Film and Television (SAPPRF) with regard to “abnormal sexual relationships and behaviors, such as incest, same-sex relationships, sexual perversion, sexual assault, sexual abuse, sexual violence, and so on.” (UNDP und ILO 2018, pp. 29). National and subnational governments are also attempting to prevent the mobilization and organization of LGBTI people by restricting the legal registration of LGBTI organizations (UNDP und USAID 2014, pp. 26).

2.4 National law targeting workspace

Various articles of China's Labor Law and Labor Contract Law protect women, people with disabilities and ethnic minorities. Employment discrimination based on ethnicity, race, sex and religion is prohibited (UNDP und ILO 2018, pp. 30). However, there is no national law that directly protects LGBTI people from employment discrimination (UNDP und ILO 2018, pp. 28). In fact, structural and indirect discrimination against LGBTI individuals is not only common but also legal.

The reluctance of public offices and universities to change university diplomas places a heavy burden for Transgender individuals seeking a job (see chapter prior). Another point is the structural discrimination of HIV positive individuals, which disproportionally affects gay men. Public offices as well as some private companies follow the “Civil Service Recruitment Examination Standard” which requires employees to get tested for HIV and leads to the dismissal of those being HIV positive (UNDP und USAID 2014, pp. 25).

More and more Chinese citizen file a suit against discrimination at workplaces. In early 2015 a Chinese court in Shenzhen launched the country's first lawsuit over workplace discrimination based on sexual orientation (Huang 2016, pp. 21). The first-ever gender identity-related labor dispute pushed by a trans man led to the Guiyang Intermediate People's Court publishing the statement: “An individual’s gender identity and gender expression falls within the protection of general personality rights, [everyone] should respect others’ rights to gender identity and expression.” (UNDP und ILO 2018, pp. 30). It is believed that this is the first time that a Chinese court recommended that workers should not subjected to differential treatment based on their gender identity and expression (UNDP und ILO 2018, pp. 30). The plaintiff even received a monetary compensation, whereas the demanded written apology from his former employer had been denied by the court (Lai 2018). Most recently a labor dispute arbitration committee in Qingdao accepted a case by a gay teacher fired by his school on the grounds of his sexuality. The case is being watched closely, also by domestic media like the Global Times (Cao Siqi 2018).

3. Chinese LGBTI perceptions of corporate culture

There are three major surveys available generally or specifically elaborating on LGBTI inclusion in the corporate sector in the PRC. Dating from 2016 to 2018 those surveys provide empirical data mainly based on quantitative fieldwork presenting a current and comprehensive foundation for the present employment situation of LGBTI individuals in China.

The “Being LGBTI in China: A National Survey on Social Attitudes towards SOGIE” report (2016) by the UNDP combines roughly 28,500 valid questionnaires with 44 interviewees (UNDP 2016, pp. 12). The Aibai Culture & Education (Aibai) Center published an online survey report on “Work Environment for China's LGBT Community” (2016) with a valid sample of more than 2,160 LGBT employees from the PRC (Aibai Culture & Education Center 2016, pp. 6). The “LGBTI People and Employment” online survey (2018) by the UNDP and the ILO compares the work experience of mostly LGBTI individuals in China, the Philippines and Thailand (total sample of nearly 550 Chinese citizen taking part) (UNDP und ILO 2018, pp. 15). The following structure orientates towards the employment cycle as laid out by the UNDP and the ILO. It suggests that LGBTI individuals experience discrimination beginning from education and training, access to employment and refusal of employment to dismissal, denial of career training and promotion and access to social security (UNDP und ILO 2018, pp. 22). By following the employment circle the subsequent section aims to summarize the findings of the three surveys mentioned above.

3.1 Access to education, vocational training and guidance

LGBTI individuals in China are less educated than non-LGBTI individuals on average. 49.4% of LGBTI respondents and 52% of non-LGBTI respondents are college graduates or above. Among the LGBTI group, intersex and transgender people are the most likely to see their academic performance negatively affected, with over 20% giving up in the course of the study (UNDP 2016, pp. 24). On the other hand, LGBT individuals having a higher educational background are less likely to disclose their SOGIE at working places (Aibai Culture & Education Center 2016, pp. 13).

At the workplace itself employers rarely offer training on sexual minorities or promote an employer policy which proactively treats LGBTI employees equally. Less than 5% of the survey respondents reported that such training was available at their workplaces, and less than 10% confirmed the availability of a LGBTI-friendly employer policy (UNDP 2016, pp. 22).

[...]

¹ Intersex is a general term referring to a variety of conditions in which a person is born with a reproductive or sexual anatomy conflicting to what is perceived as female or male. For additional information regarding the exact definitions of LGBTI see UNDP 2016, pp. 11.

² Hereinafter also called Mainland China or simply China.

³ Random selection of comparable countries (UN Global Compact 2019c; UN Global Compact 2019a; UN Global Compact 2019b)

⁴ In Hong Kong and Macau Special Administrative Regions, discrimination based on sexual orientation is prohibited in some laws at certain levels (UNDP und ILO 2018, pp. 27).

⁵ The law never targeted female homosexuality (UNDP und USAID 2014, pp. 8).