Zhejiang post-80s man was dismissed by the company after he became a transgender

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 Zhejiang post-80s man was dismissed by the company after he became a transgender


Cause of action: she was dismissed by the company after gender replacement operation

Xiaoma is from Zhejiang Province. He graduated from University, typical after 1980. In an interview with the Chinese business daily on the afternoon of December 1, Ma said that before the gender reset operation, she was the only child in her family and worked in a cultural media industry in Hangzhou. For many years, she has regarded herself as a girl. In October 2018, with the support of her family, she had a gender reset operation and got the changed female ID card as she wished. During the operation, the pony was in a state of suspension.

Pony didnt expect that the gender replacement surgery would cause trouble to her work: in late December 2018, pony returned to work. One month later, she was interviewed by the companys personnel manager and urged him to voluntarily submit his resignation report. In the absence of Xiaomas consent, after a period of time, the personnel manager said that Xiaoma was not suitable for the work with artists, because both male and female artists were not suitable, and the physical condition was not allowed.

During the Spring Festival holiday in 2019, Xiaoma didnt receive the year-end bonus. On February 11, 2019, after the end of the Spring Festival holiday, Xiaoma returned to the company. Everyone in the companys routine red envelope had a share, but she was not given it. 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 companys rules and regulations, and refused to provide corresponding compensation.

Xiaoma believes that serious violation of the companys rules and regulations is an excuse for the company to dismiss her, because the company sent her a payroll email, only 7 times late, the company will notify in the remarks column, for less than 7 times late, the company has never given any criticism or warning. According to her understanding, in January 2019, other employees of the company were late for work for many times, but they were not dismissed, only for her. These unreasonable differences are all due to my gender replacement surgery, which is the real and fundamental reason for my dismissal..

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 a lump sum of 2.5 months salary, and the labor dispute between the two parties was closed.

Prosecution: suing the company for violating the right to equal employment

I joined the company in October 2015 as an assistant. As of my dismissal, I have worked in the company for more than three years. In my daily work, I did not cover up my gender identity too much. Xiaoma introduced that on August 23, 2019, with the help of Wang Yongmei, a lawyer from Huayi law firm in Beijing, she sued the original unit to the peoples Court of Binjiang District in Hangzhou for the reason of equal employment right dispute. On October 9, the court officially accepted the case.

Wang Yongmei introduced that when they first filed the case, they found that the cause of the online filing of the Zhejiang court had not been 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 called on their own initiative to say that they could use the equal employment right online filing. This case is the first cross gender employment discrimination case in China since the supreme law issued the case of equal employment right dispute in December 2018!

In the indictment, Xiaoma asked the court to: order the defendant to apologize to her according to law; compensate 10000 yuan for her spiritual comfort; all the litigation costs shall be borne by the defendant.

Xiaoma said that she hopes to let more people like her know their rights and obligations through the case of equal employment right dispute. In similar situations, she can take up legal weapons to protect herself and let more people, including enterprises, organs and legal workers, know about the situation of transgender people.

Trial: the company insisted on dismissal because it was late

At 9:00 a.m. on December 3, the case was heard in Puyan court of Binjiang District Peoples Court of Hangzhou. At 11:10, the court adjourned.

After the trial, a reporter from China Daily interviewed Wang Yongmei, Xiaomas lawyer. Wang Yongmei introduced that at the trial stage, the company that dismissed Xiaoma insisted that it was not because she had gender replacement surgery, but because she was late for many times and violated the companys rules and regulations. During the court hearing, the company provided the companys employee handbook, publicity and training notice and other evidences to prove that other employees of the same type of work are much better than Xiaoma. The company also dissuades the employees whose attendance is similar to that of Xiaoma, and there is no discrimination against Xiaomas cross gender identity. The company requested the court to reject Xiaomas claim.

Wang Yongmei and Xiaoma insist that violating the companys rules and regulations is just an excuse for the company. In court, Xiaoma confirmed to the court that she was late before the gender reset operation, but the company never talked to her or warned about it. At the same time, she provided a recording of her conversation with the HR manager of the company. In the recording, the HR manager said that it is not convenient for you to talk with the male (artist) or the female (artist). In addition, Xiaoma also requires the company to provide the clock in records of all employees from July 2018 to April 2019. Wang Yongmei introduced that this case is not the first time for transgender people to try to use legal weapons to protect their equal employment rights. In 2017, Mr. C from Guiyang filed a general tort lawsuit against the company dismissed due to gender expression. The plaintiff, Mr. C, won. In the case, gender identity, gender expression and other terms were written into the judgment for the first time: Guiyang intermediate peoples 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 trial ended, and the court will decide on a date. As for the trial result, Wang Yongmei called it hard to say and believed that the court would make a fair judgment.

Lawyers statement

It is illegal for enterprises to replace and dismiss employees with gender

The employer dismissed the employee on the basis of the gender replacement operation. Is the company illegal? After the gender replacement operation, the party concerned needs to change a series of certificates such as ID card and household register. How is the law of our country stipulating this? As for the legal problems in this case, the reporter of China Business News interviewed the relevant lawyers.

Cheng Xue, a lawyer from Beijing Zhongwen law firm, believes that the dismissal of an employee on the basis of gender replacement is not the basis for the legal termination of the labor contract, such as the labor law. The enterprise shall compensate, compensate or continue to perform the labor contract in accordance with the relevant laws and regulations.

Zhong lanan, a lawyer from Beijing Jingshi law firm, also believes that it is illegal for a unit to dismiss employees on the basis of gender replacement surgery, which first violates the personal dignity of the parties, and second, violates the equal employment rights of the parties.

However, some netizens think that the companys practice is illegal in law, but it can be understood in reason. After all, after a gender reset operation, going to the bathroom at work, male or female, will embarrass former colleagues.

(function() {(window. Slotbydup = window. Slotbydup| []). Push ({ID: 6374560, container: ssp_6374560, size: 300250, display: inlay fix, async: true});))); Zhong Lanan said that he can understand the above ideas of the netizen, but if a person has gender reset operation, it means that TA agrees with the later gender, and generally does not have malice to others of the same sex, so we should all have this idea It should be tolerated. For this group, some foreign countries or regions have set up the third toilet for it to reduce its conflict with ordinary people, so as to protect their legitimate rights and interests, which is a better measure. Cheng Xue introduced that according to the reply of the public security administration of the Ministry of public security on the issues related to the change of gender items in the household registration after the operation of sex change, when citizens applying for the change of gender items in the household registration after the operation of sex change, they should provide the gender identification certificate issued by the third-class hospitals in China and the notarial certificate issued by the notarial department, or the certificate issued by the judicial identification department, through the prefecture (city) After the approval of the competent department of the public security organ at the next level, the public security police station shall go through the formalities for changing the sex. After the change of gender items, the citizenship number shall be redrafted. Where a resident identity card has been obtained, the public security organ shall hand it in for cancellation and handle the resident identity card for it again. Chen Youmou, reporter of China Business News

Zhong lanan said that he can understand the above ideas of netizens, but if a person has a gender reset operation, it means that TA agrees with the gender in the back, and generally does not have malice towards others of the same sex, so everyone should be tolerant of this. For this group, some foreign countries or regions have set up the third toilet for it to reduce its conflict with ordinary people, so as to protect their legitimate rights and interests, which is a better measure.

Cheng Xue introduced that according to the reply of the public security administration of the Ministry of public security on the issues related to the change of gender items in the household registration after the operation of sex change, when citizens applying for the change of gender items in the household registration after the operation of sex change, they should provide the gender identification certificate issued by the third-class hospitals in China and the notarial certificate issued by the notarial department, or the certificate issued by the judicial identification department, through the prefecture (city) After the approval of the competent department of the public security organ at the next level, the public security police station shall go through the formalities for changing the sex. After the change of gender items, the citizenship number shall be redrafted. Where a resident identity card has been obtained, the public security organ shall hand it in for cancellation and handle the resident identity card for it again. Chen Youmou, reporter of China Business News