A kindergarten teacher with the pseudonym “Ming Jue” in Qingdao, Shandong Province, filed a labor complaint with the local arbitration committee against his employer last September, claiming that the kindergarten unlawfully dismissed him for him coming out of the closet as being gay. Some media and LGBT rights advocates describe this case as “the first case of gay teacher rights protection in China”, referring to the particularity of the case as the first one of LGBT people speaking up in the field of education. By introducing the case, this article will try to give you a brief introduction and analysis about workplace anti-discrimination issues in China’s labor laws.

Case Facts

According to multiple media reports, Ming Jue shared via his social media an article about gays with the sentence “I am proud of being gay” after he attended a gay event. A parent of one of his former student happened to see it and then alerted the kindergarten. The parent seemed to feel that a gay teacher would exert negative impact on kids. The kindergarten said it had given Ming Jue options after the parent’s complaint that he keeps his sexuality orientation as a secret in the future or he resigns himself. Ming Jue then chose to resign by writing the resignation letter stating that “I resigned for personal reasons”. So the kindergarten argued that they did not dismiss him unilaterally but he quit himself. However, Ming Jue claimed that he was under great pressure given by the kindergarten at thet time and he was forced to submit the resignation letter, so he claimed this was actually a disguised dismissal by the employer based on the discrimination against homosexual people. Two months after Ming Jue launched the case, the local labor arbitration committee finally made the arbitration award. The kindergarten was ordered to pay Ming Jue 6 months of salary compensation for failing to sign an employment contract with him. But the labor arbitration committee rejected Ming Jue’s claim that he was unlawfully dismissed by the kindergarten. So far, I haven’t found follow-up reports about any party challenging the labor arbitration award in court.

Why was Ming Jue’s claim of “unlawful dismissal” rejected by the labor arbitration committee?

Garystarnews reported that Ming Jue’s claim of “unlawful dismissal” was rejected by the local labor arbitration committee, but the report did not give details of the reasoning of the decision. Based on the released case facts and my experience, the reason why Ming Jue’s claim was turned down off course is not because China’s laws or the arbitration committee accept that the kindergarten could legally dismiss a teacher on the ground of him/her coming out of the closet. It is impossible that Ming Jue lost the case because LGBT people’s right to work in education is denied by China’s labor laws. Instead, the most likely reason Ming Jue’s claim was rejected is because he submitted the resignation letter to the kindergarten himself, a scenario usually very safe for the employer to argue a lawful termination of an employment in China’s legal practice.

Unlike labor laws in some western countries, China’s labor laws strictly restrict unilateral employment termination by the employer. In China, at-will termination by the employer is not allowed and the employer is only allowed to terminate a labor contract in special circumstances defined in laws such as when the employee commit a serious misconduct. And the employer shall bear heavy burden of proof in the dismissal dispute lawsuit. On the other hand, the employee are entitled to resign by given prior written notice to the employer unless special “service period” agreement exists and related rules apply. But once an employee submits his/her resignation letter, the resignation cannot be withdrawn at will. Instead, the resignation will go effective after 30 days of the submission (after 3 days in the probation period).  

In Ming Jue’s case, he admitted having submitted the resignation letter to the kindergarten, only adding that he did it as requested by the kindergarten, not of his own accord. However, in China’s current labor law practice, labor arbitrators/judges seldom take motives for resignation into consideration when dealing with such cases. In general, as long as an employer receives a resignation letter from an employee, it is the popular view that it is, after all, the employee, who finally decides to resign and a safe and lawful termination of the employment is almost confirmed. Off course, if an employee can prove that he/she is actually forced or cheated into resignation, it is still possible the resignation could be considered as invalid, but such claim is usually very difficult to prove. And as mentioned above, it is currently not that popular for China’s labor arbitrators/judges to go very deeply over what on earth leads to the resignation.

Based on the facts released in Ming Jue’s case, no offence to the local labor arbitration committee, but I do believe Ming Jue’s claim may make sense, a possibility at least, if the labor arbitration committee can go a little further into details of the case. But given the convention of the labor law practice currently as introduced above, it is also no surprise that Ming Jue lost this dismissal case since he did submit a resignation letter and he might fail to persuade the arbitrator to believe the resignation is actually against his true will.

Do China’s labor laws protect employee rights of LGBT people?

Then here comes the unanswered question: If Ming Jue’s case was actually more about the resignation validity issue than about the discrimination against a gay employee, then do China’s labor laws protect LGBT people’s employee rights in workplace?  

The answer is a Yes. But not by special protection as some western countries do where labor laws are different from China.

Ming Jue’s case is a dismissal dispute, and it is worth mentioning that China’s labor laws concerning dismissal is very different from some western countries, especially in North America, where at-will unilateral termination by the employer is principally allowed. In the latter countries, I agree scrutiny on potential mean motives of the unilateral termination of the employment by the employer could make great sense when it comes to protection of minorities like LGBT community. And that is also one of the reasons why anti-discrimination legislation in labor laws is necessary and important in this respect in those countries.   

In China, however, the legal situation is different. China’s labor laws place very strict restrictions on unilateral termination by the employer. The employer can only dismiss an employee by citing several specific statutory reasons stipulated in labor laws. And partly because China is not a religious country, sexuality orientation is not a legal reason for the employer to dismiss an employee.

Also, full-time employees are generally equally protected regarding dismissal issues in China, and given the fact that gay sex is no longer a criminal in China since 1997 and homosexuality is also no longer classified as an “illness” now, there are no excuse to rule LGBT people out of the dismissal protection in current labor laws. So technically, LGBT people shall enjoy full employee rights, including dismissal protection, in China nowadays. Therefore, under such circumstance, the stress on special protection of LGBT group and legislation of its kind, at least in dismissal respect, is not that necessary as it is in some other countries.

Meanwhile, although China’s society is still overall socially conservative, over recent years, with new ideas coming in and also thanks to advocates’ campaign for equal rights for all kinds of minorities, it is now safe to say that discrimination against LGBT community is against new “political right” belief, at least in the public domain among well-educated young people. And in fact, almost no employer would be that silly to claim that it is right to dismiss an employee on the ground of his/her sexuality orientation. Instead, they would use other “reasons” when they want to fire such an employee while the real motive is sexuality or gender identification discrimination. Ming Jue may be the first teacher to stand up and claim employee right in the field of education, but he is not the first one to bring LGBT employee right issue up publicly. Back in 2016, many media reported a transgender man filed a dismissal lawsuit against his employer over unlawful dismissal in Guiyang Province. In that case, the transgender man claimed he was fired because of gender identification discrimination, but his employer argued that he was dismissed because of his incompetence for his job, which is part of a legal reason for the employer to unilaterally dismiss an employee subject to applied labor laws. The court finally ruled that the employer failed to prove the employee was incompetent for his job and so that the dismissal was unlawful.

Does Ming Jue’s case make sense?

Off course Yes. But I’d like to talk about it in details.

As discussed previously, it’s my opinion that under strict labor laws regarding dismissal in China, separate legislation and special protection of LGBT people, as well as other minorities, in that respect is unnecessary. Ming Jue may hope the labor arbitrator/judge could rule that it is unlawful to fire an employee because of his/her sexuality orientation – his such wish may make sense in countries where at-will dismissal by the employer is lawful, but makes no legal sense in mainland China. Because as introduced above, China’s labor laws only allow the employer to unilaterally terminate the employment for several statutory legal reasons, and being LGBT or coming out of the closet is not among those reasons, and probably will never be one. In such legislation situation, separately stressing that LGBT people shall not be fired at will is indeed unnecessary and actually would be a little weird.

But Ming Jue’s efforts make great sense in other aspects. Ming Jue said in an interview that he initiated this case to “call on more people to focus on the homosexual community and create a more diverse world”. He successfully achieved this goal. Ming Jue’s case became a hot issue at one point, the photo of him holding a sign reading “I teach kids to be honest, so I can’t lie. I am gay” went viral on the internet and attracted public attention greatly. Many people praised his bravery and discussed the issue he brought up: Can LGBT people work in education？Different opinions exchanged. An online survey indicated that an absolute majority people said yes. I believe such public discussion is a very good public training and lesson for the civil society and is helpful to make more people pay attention to, be familiar with and accept LGBT, change the climate of the society and advocate necessary laws and policies.

And let’s go a little further. Nowadays in mainland China, honestly speaking, we still lack effective democratic channels to put social issues on policy maker’s agenda. Under such circumstance, if civil society want to push a social issue, to call for new legislations/policy changes, you definitely need public attention and discussion to make the authority realize that the issue is really important. And a lawsuit is always an effective way to draw that kind of public attention and generate public discussion that needed as these legal actions are off course lawful and media outlets would also feel natural and comfortable to cover the case process. From that perspective, we should always give credits to people who are willing to stand up and take legal actions, usually would be under great pressure and may face all kinds of troubles, when it is possible and necessary. It could be even more important to make your voice heard than whether or not you will win the case. Sometimes, people lose the case, for whatever reasons, but the legal actions taken and the public attention/discussion aroused might promote future changes and advances in laws and policies.

Last but not least, although I don’t think anti-discrimination legislation regarding dismissal issue would be meaningful in China’s labor laws, I admit such legislation could still make sense in other aspects of employee rights, such as recruitment and workplace daily work things. Currently there is no specific workplace anti-discrimination law in China, but existing labor laws include some general anti-discrimination principles. For example, Article 12 of the Labor Law and Article 3 of the Employment Promotion Law, both state that discrimination against job seekers and employees on grounds of “nation, race, gender or religion” is not allowed, but other things like sexuality orientation are not be listed yet. Notably, according to a new circular issued by the Supreme People’s Court in December 2018, “equal employment right dispute” will be classified as a formal cause of action from January 1, 2019. As there is no specific definition of “equal employment right” in China’s labor laws, from my perspective, technically, all minorities, disadvantaged, including LGBT people can claim the right. Although listing a new “cause of action” is not a new legislation in China, it is widely assumed that such gesture by the Supreme Court would make filing process of such lawsuits more smoothly.