Original title: Zhejiang post-80s men were dismissed by the company after they became transgender, but the company said so
After completing the gender replacement operation, pony was dismissed by the company. She believed that the company had violated her right to equal employment, so she sued the company to the court. On the morning of December 3, China's first cross gender equal employment right case was heard in Puyan court of Binjiang District People's Court of Hangzhou.
Cause of action: after gender replacement surgery, she was dismissed by the company
Xiao Ma is from Zhejiang Province. He graduated from university and is a typical post-80s. On the afternoon of December 1, in an interview with China business daily, Xiao Ma said that before the gender reset operation, she was the only son of her family and worked in a cultural media industry in Hangzhou. For years, she has regarded herself as a girl. In October 2018, with the support of her family, she underwent gender replacement surgery and got the changed female ID card as she wished. During the operation, the pony was on leave without pay.
Pony didn't expect that gender replacement surgery would bring trouble to her work: in late December 2018, pony returned to work. A month later, she was interviewed by the company's personnel manager and advised him to consciously submit a resignation report. Without pony's consent, after a period of time, the personnel manager said that pony was not suitable for working with artists because both male and female artists were not suitable, and her physical condition did not allow it.
During the 2019 Spring Festival holiday, pony did not receive the year-end bonus he deserved. On February 11, 2019, after the Spring Festival holiday, pony returned to the company. The company routinely opened the door and gave everyone a red envelope, except for her. On February 12, Xiaoma received the dismissed email. The company unilaterally terminated the labor contract on the grounds that she was late for many times in January 2019 and seriously violated the company's rules and regulations, and refused to provide corresponding compensation.
Pony believes that 'serious violation of the company's rules and regulations' is the excuse for the company to dismiss her, because the payroll email sent to her by the company only' 7 times late, the company will be in & lsquo; Remarks & rsquo; The company never gives any criticism or warning for lateness less than 7 times. " According to her, in January 2019, other employees of the company were late for many times, but they were not dismissed. She was only dismissed. " These unreasonable differences are because I had sex replacement surgery, which is the real and fundamental reason why I was dismissed '.
In March 2019, Xiaoma filed a labor dispute arbitration with the labor and personnel dispute arbitration committee of Hangzhou high tech Development Zone (Binjiang). After mediation, the company paid her 2.5 months' monthly salary at one time, and the labor dispute between the two sides was settled.
Prosecution: Sue the company for violating the right to equal employment
'I joined the company in October 2015 as an assistant. As of being dismissed, I have worked in the company for more than three years. In my daily work, I have not covered up my gender identity too much.' Xiao Ma introduced that on August 23, 2019, with the help of Wang Yongmei, a lawyer of Beijing Huayi law firm, she sued the original unit to Hangzhou Binjiang District People's Court on the grounds of "equal employment right dispute". On October 9, the court officially accepted it.
Wang Yongmei said that when they first filed the case, they found that the cause of filing the case on the Internet of Zhejiang court did not have the newly added 'equal employment right dispute' of the Supreme Court, so they called the same day to reflect the situation. Two days later, the staff took the initiative to call and said that they could file a case online with the "equal right to employment". This case is the first case of cross gender employment discrimination in China filed with the "equal employment right dispute" since the supreme law issued the cause of the "equal employment right dispute" in December 2018!
In the indictment, pony asked the court: order the defendant to apologize to her according to law; Compensation of 10000 yuan for her spiritual comfort; All litigation costs shall be borne by the defendant.
Pony said that she hopes that through the cause of the 'equal employment right dispute', more people like her can understand their rights and obligations, take up legal weapons to protect themselves in similar situations, and let more people, including enterprises, organs and legal workers, understand the situation of cross gender people.
Trial: the company insisted on dismissal because it was late
At 9 a.m. on December 3, the case was heard in Puyan court of Hangzhou Binjiang District People's court, and the court adjourned at about 11:10.
After the trial, the reporter of China News interviewed Wang Yongmei, Xiao Ma's lawyer. According to Wang Yongmei, at the trial stage, the company that dismissed pony insisted that she was dismissed not because she had sex replacement surgery, but because she was late many times and violated the company's rules and regulations. During the trial, the company provided evidence such as the company's employee manual, publicity and training notice to prove that other employees of the same type of work were much better than pony. The company also discouraged employees with similar attendance as pony. There was no discrimination against pony's cross gender identity, and requested the court to reject pony's claim.
Wang Yongmei and Xiao Ma insisted that violating the company's rules and regulations was just an excuse for the company. In court, pony confirmed to the court that she was late before the gender reset operation, but the company never talked to her or warned her about it. At the same time, she provided a recording of her conversation with the company's personnel manager. In the recording, the personnel manager said it was inconvenient for you to talk to men (artists) or women (artists). In addition, Xiaoma also asked the company to provide punch in records of all employees from July 2018 to April 2019. Wang Yongmei introduced that the case is not the first time that transgender people try to use legal weapons to protect their equal employment rights - in 2017, Mr. C from Guiyang filed a general personality right infringement lawsuit against the company dismissed due to gender expression. The plaintiff Mr. C won. In this case, the terms' gender identity 'and' gender expression 'were written into the judgment for the first time: the Guiyang intermediate people's court ruled in February 2018 that workers should not face differential treatment because of gender identity.
At about 11:10 a.m. on December 3, the court will announce the sentence at a selected time. For the trial results, Wang Yongmei said it was "hard to say" and believed that the court would make a fair judgment.
It is illegal for enterprises to dismiss employees by gender replacement
Is it illegal for the employer to dismiss an employee on the grounds that he has undergone gender replacement surgery? After sex replacement surgery, the parties need to change a series of documents such as ID card and household register. What is the law of our country? The reporter of China business daily interviewed relevant lawyers on the legal problems existing in the case.
Cheng Xue, a lawyer of Beijing Zhongwen law firm, believes that the dismissal of an employee on the grounds that the employee has undergone gender replacement surgery is not the basis for legal termination of the labor contract such as the labor law. The enterprise should compensate, compensate or continue to perform the labor contract in accordance with relevant laws and regulations.
Zhong Lanan, a lawyer at Beijing Jingshi law firm, also believes that it is illegal for the unit to dismiss employees on the grounds of gender replacement surgery. First, it infringes on the personal dignity of the parties concerned. Second, it infringes on the parties' equal employment rights.
However, some netizens believe that the company's practice is legally illegal, but it can be understood from the point of view of reason. After all, after a gender reset operation, going to the bathroom in the unit, whether it's the men's bathroom or the women's bathroom, will embarrass former colleagues.
Zhong Lanan said that he can understand the above ideas of netizens, but if a person has gender reset surgery, it shows that TA agrees with the latter gender and generally does not harbor malice towards others of the same sex. We should be tolerant of this. For this group, some foreign countries or regions have set up third sex toilets for them to reduce their conflicts with ordinary people, so as to protect their legitimate rights and interests, which is a better measure.
According to Cheng Xue, the reply of the Public Security Administration Bureau of the Ministry of public security on issues related to the change of gender items in household registration after citizens undergo transsexual surgery stipulates that when citizens who perform transsexual surgery apply for changing gender items in household registration, they should provide gender identification certificates issued by domestic tertiary hospitals, notarial certificates issued by notarial departments, or certificates issued by judicial identification departments, After being approved by the competent department of the public security organ at the prefecture (city) level, the public security police station shall go through the formalities for gender change. After the gender project is changed, the citizenship number shall be re compiled. Among them, those who have received resident identity cards shall be handed over by the public security organ for cancellation and re apply for resident identity cards.