Transgenders Face Barriers to Legal Recognition in China

United Nations Development Programme (UNDP) and China Women’s University released an updated report on legal gender recognition in China on August 6. Members of the Beijing LGBT community and related social entities were present at the release.

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Using case studies and interviews, the report examines how to improve the environment for transgender people in education and employment, as well as health and reproduction, in China, while providing policy recommendations under the current legal framework.

“I am confident that this review will contribute to the important endeavour of meeting the needs of vulnerable and marginalized groups such as LGBTI people, ensuring that they can be equal members of the society, and are protected and free from any forms of violence and discrimination. In doing so, China will deliver on its commitment to ‘leave no one behind’ by 2030,” Agi Veres, director of UNDP China, wrote at the beginning of the report.

Change of Gender Identity

The most disturbing problem China’s transgenders face is the gender marker on their identity documents, including identity cards and diplomas.

The current law states that in order to change the gender on their identity card, transgenders must complete all relevant gender-affirming surgeries and get approval from their guardians. Other requirements include more than a year of psychological or mental treatment with no improvement, being over the age of 20 and being unmarried.

For transgenders with conventional parents, these conditions may be impossible to meet. In one case mentioned in the report, a transgender woman named Yan Yan removed parts of her sexual organs herself after failing to obtain consent from her parents. The experience left her physically and mentally traumatized.

“Even if I died three days after the surgery, at least for those three days, I would be a woman,” she said.

As for the age requirement, the General Principles of the Civil Law of the People’s Republic of China (1986) stipulate that individuals who are 18 years of age have full civil capacity, meaning they are fully responsible for their own behaviour. So why are gender-affirming surgeries set at 20 years old?

Difficulties in changing one’s gender identity also result in unfair treatment in education and employment. Colleges and educational institutions are not authorized to change the identified gender or name of transgender individuals on their documents. According to the report, one of the interviewees had to enroll in another school for a master’s degree because he was unable to change the gender on his diploma.

A better way to solve this problem is to simply remove the gender marker on diplomas, as is common in the Americas and Europe.

Public Facility

In terms of infrastructure, the report recommended the creation of transgender-friendly public facilities, such as gender-neutral toilets or changing rooms at a swimming pool.

At the press release, a pre-op transgender man relayed his experience of using the female locker room at a public swimming pool. Other women in the room started to scream as soon as he removed his shirt, because his torso was masculinized through hormone therapy. He said he learned to take his pants off the next time he used the locker room.

The story drew a few laughs from the crowd, but there was a stinging tone behind his words.

A transgender named Chao Xiaomi, who appeared on the debate show U Can U Bibi, also attended at the event. He relayed his experience of being scolded by police for over an hour on his attempt to enter the female restroom in a shopping mall. Chen identifies as genderfluid, alternating between male and female. He wears dresses all the time, but has masculine facial and body features. When he decided to go to the men’s restroom instead, he was again forced out by a janitor.

All gender restrooms are available in Beijing and Shanghai, which may benefit those who are in different stages of gender transition. The signs for these restrooms usually feature a person in a dress, a person in pants and a person dressed in a half-dress, half-pants outfit.

Training for Law Enforcement

A male-to-female transgender sex worker, was interviewed for the report and relayed her experience of having her hair forcibly cut while she was detained in a men’s jail. She burst into tears, saying “It’s my hair, how dare you cut it off!”

The humiliation would not have happened if the legal department had issued official documents to ensure officers were well informed of the consequences of their behavior. Managers of detention shelters and prisons need to learn to consider the needs of transgender people.

Marriage and Reproduction

Sperm donation and surrogacy are not a new problem in the LGBT community.

The latest draft of the Population and Family Planning Law of the People’s Republic of China (2015) dropped a previous provision that would “prohibit the selling or purchase of sperm, ova, fertilized ova and embryos; [and also] prohibit any form of surrogate pregnancy.” This may be an indicator that surrogate pregnancy may become legal in China, providing options for “non-traditional” families such as transgender couples.

However, the report also stressed that transgender people and their partners must be in a legal marriage to receive the benefits of assisted reproductive technology under the current legal framework. In order to be in a marital state, a transgender person must have succeeded in changing his or her gender marker, which requires completing GAS and relevant administrative procedures.

There is no law preventing transgender marriage, but the preconditions to receive GAS and other legal procedures may stand as a barrier.

For transgender people in China, there is still a long way to go before inconvenience and discrimination can be eliminated.

Things that seem totally normal for most people can be a significant struggle for transgenders. Some need hormones for their preferred gender expression, but have little knowledge of where to get prescribed hormones through legal channels. Others have trouble choosing the right public toilets without ridicule. More struggle to change their gender markers on identity documents.

“I’ve always believed that everyone can behave in a way that crosses the boundaries of gender to reveal their true self,” Chao Xiaomi said at the event. His inspiring remarks suggest that even the world outside the LGBT community should welcome diversified forms of gender expression.

Seeing his bright and genuine smile on the cover of the report, I know his years of struggle with society and the system have not been in vain. He slightly lowered his eyelids when the lecturer shared his experience of being insulted.

Mr. C, who won an employment discrimination case in 2017 in his hometown of Guiyang with the help of the report’s author, wore a shirt with the words “Transgenders don’t all look like this” to the event. “I’m with my girlfriend in Beijing now. I don’t know what awaits me in this city,” People like Mr. C or Chao Xiaomi don’t like to be addressed as “tomboys” or “girly men” – perhaps no definition is better than a biased or stereotyped definition.

Every dark cloud has a silver lining. As more transgender people bring successful discrimination cases and become public figures, law and society will catch up. It will be a gradual process.