By Alexander Chipman Koty
On December 30, 2016, a court in China’s southwestern province of Guizhou ruled that a worker, known as Mr. Chen, was wrongfully dismissed for dressing as a man. The ruling represents a new landmark for LGBTQ+ rights in China. Although the decision did not address the transgender identity of Mr. Chen, who was born female but identifies as a male, the court deemed that the dismissal was unlawful.
The ruling follows a series of recent lawsuits regarding LGBTQ+ rights in China, including a male couple who unsuccessfully lobbied for marriage rights, a clinic that was punished for using shock therapy to make a man heterosexual, and a university student suing over textbooks describing homosexuality as abnormal behavior.
As awareness of LGBTQ+ issues in China rises, employers are facing newfound scrutiny over their treatment of sexual minorities. Employers have the opportunity to establish safe work environments for LGBTQ+ employees, and become leaders in China’s changing social climate. Doing so can boost office morale, increase work efficiency, and, most importantly, give opportunities to those too often suffering from discrimination.
Legal protection for sexual minorities
Legal workplace protection for LGBTQ+ members in China is vague and insufficient. Homosexuality was a crime in China until 1997, under the offense of “hooliganism”, and classified as a mental disorder up to 2001. Since then, there has been little progress in developing legal protection to sexual minorities.
While Chinese Labor Law specifically offers protection against ethnic, religious, and gender discrimination, there are no provisions for discrimination based on sexuality or gender identity. Similarly, the Employment Promotion Law bans discriminatory recruitment and employment practices, but does not expressly mention sexuality or gender identity.
Further, the enforcement of such laws is inconsistent in practice. Lack of clarity over what the laws cover, and the absence of specific penalties and remedies for infractions hamper their utility.
LGBTQ+ in the workplace
While there are no concrete data on the size of China’s LGBTQ+ demographics, some estimate it at about 3-5 percent of the total population, while others measure it at closer to 5-10 percent. That means that there is anywhere from about 40 to 135 million LGBTQ+ Chinese nationals.
While even the low end of this range is a considerable number, many employers in China do not realize that they are likely employing at least one LGBTQ+ employee, if not many. A survey on the community conducted by the United Nations in 2016 – the largest ever in China – found that only 5.4 percent made their orientation public in the workplace. In the US, the figure is closer to 50 percent.
An earlier survey conducted by grassroots organizations in 2013 cited several reasons why LGBTQ+ employees conceal their identity: 60.9 percent fear being marginalized, 51.7 percent feel it may prevent them from being promoted, and 22.5 percent worry about getting fired. These career concerns are borne out by facts, as another survey found that about a quarter of those who had their sexuality revealed were fired or compelled to quit their job.
Human resources implications
Studies have shown that fostering an inclusive environment for LGBTQ+ employees has tangible effects on productivity, and can allay many of their professional challenges.
A survey by the LGBT rights NGO Aibai found that 87 percent of LGBT employees think that a more inclusive work environment would bring closer and better working relationships with their coworkers. 45 percent waste enormous amounts of energy trying to conceal their sexual orientation, and 13 percent suffer a drop in productivity as a result of a discriminatory work environment. Further, 21 percent have considered leaving or have left their job due to such an environment.
Creating an inclusive work environment is therefore vital to safeguard employees’ mental – and sometimes physical – health, as well as to retain talent and optimize efficiency.
Steps to take
Many multinational corporations have inclusivity programs in their home countries to address these concerns, but they are rarely carried over to overseas operations in emerging markets. However, given the unique challenges members of the LGBTQ+ community face in China, as well as the country’s particular social and cultural situation, it is not always advisable to simply transplant a program originally designed for another context.
Given that sexuality and gender identity can be a taboo or misunderstood topic in many parts of China, a program that is too ambitious may have the unintended effect of making both LGBTQ+ and non-LGBTQ+ employees uncomfortable. Encouraging employees to participate and give input to programs needs to be done with care and discretion so they are not singled out in front of coworkers.
Having a clear and explicit non-discrimination policy is an important element of establishing an inclusive company culture. This policy should be consistent and across the board, such as in employee handbooks, employee onboarding, and periodic inclusivity seminars. Systems can also be put in place for HR to work with employees looking to access mental health and other support services.
Further, participating in local events – such as the Annual China LGBT Talent Job Fair, which was held in 2016 for the second time – demonstrates visible support for the community and further solidifies company culture and expectations. This event was attended by such multinationals as Ford, PwC, Starbucks, and Morgan Stanley, among others. Our own firm, Dezan Shira & Associates, is an LGBTQ+-friendly employer and has worked with numerous staff in same-sex marriages.
However, it is not just foreign companies getting into the act. In 2016, Chinese tech giant Alibaba and gay dating app Blued sent seven same-sex couples to get married in the US. This marketing exercise highlights the emergence of China’s LGBTQ+ community as a sizable consumer market in its own right. Indeed, establishing a reputation as an LGBTQ+-friendly company has the added benefit of being the best possible way to gain the confidence of an enormous and underserved market, in addition to the ethical and productivity considerations of an inclusive work environment.
Asia Briefing Ltd. is a subsidiary of Dezan Shira & Associates. Dezan Shira is a specialist foreign direct investment practice, providing corporate establishment, business advisory, tax advisory and compliance, accounting, payroll, due diligence and financial review services to multinationals investing in China, Hong Kong, India, Vietnam, Singapore and the rest of ASEAN. For further information, please email email@example.com or visit www.dezshira.com.
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