[Joint House and Senate Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
THE FUTURE OF WOMEN IN CHINA; #ME TOO, CENSORSHIP, AND GENDER
INEQUALITY
=======================================================================
HEARING
BEFORE THE
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
MARCH 1, 2022
__________
Printed for the use of the Congressional-Executive Commission on China
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available at www.cecc.gov or www.govinfo.gov
___________
U.S. GOVERNMENT PUBLISHING OFFICE
47-073 PDF WASHINGTON : 2022
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
JEFF MERKLEY, Oregon, Chair JAMES P. McGOVERN, Massachusetts,
DIANNE FEINSTEIN, California Co-chair
MARCO RUBIO, Florida CHRISTOPHER SMITH, New Jersey
JAMES LANKFORD, Oklahoma THOMAS SUOZZI, New York
TOM COTTON, Arkansas TOM MALINOWSKI, New Jersey
STEVE DAINES, Montana BRIAN MAST, Florida
ANGUS KING, Maine VICKY HARTZLER, Missouri
JON OSSOFF, Georgia RASHIDA TLAIB, Michigan
JENNIFER WEXTON, Virginia
MICHELLE STEEL, California
EXECUTIVE BRANCH COMMISSIONERS
Not yet appointed
Matt Squeri, Staff Director
Todd Stein, Deputy Staff Director
(ii)
C O N T E N T S
__________
Statements
Page
Opening Statement of Hon. Jeff Merkley, a U.S. Senator from
Oregon; Chair, Congressional-Executive Commission on China..... 1
Statement of Hon. James P. McGovern, a U.S. Representative from
Massachusetts; Co-chair, Congressional-Executive Commission on
China.......................................................... 2
Statement of Hon. Chris Smith, a U.S. Representative from New
Jersey......................................................... 3
Statement of Leta Hong Fincher, author, ``Betraying Big Brother:
The Feminist Awakening in China''.............................. 6
Statement of Aaron Halegua, research fellow at NYU School of
Law's U.S.-Asia Law Institute and its Center for Labor and
Employment Law................................................. 7
Statement of Mei Fong, Chief Communications Officer, Human Rights
Watch and author, ``One Child: The Story of China's Most
Radical Experiment''........................................... 9
Statement of Tursunay Ziyawudun, detention camp survivor and
advocate for Uyghur human rights............................... 11
APPENDIX
Prepared Statements
Hong Fincher, Leta............................................... 31
Halegua, Aaron................................................... 34
Fong, Mei........................................................ 36
Ziyawudun, Tursunay.............................................. 37
Merkley, Hon. Jeff............................................... 38
McGovern, Hon. James P........................................... 39
Submissions for the Record
Excerpt from article by Leta Hong Fincher entitled ``Why Peng
Shuai Has China's Leaders Spooked''............................ 40
Article by Aaron Halegua and Shikha Silliman Bhattacharjee
entitled ``Are Countries Fulfilling the Promise of the Violence
and Harassment Convention?''................................... 40
Report by Aaron Halegua entitled ``Workplace Gender-based
Violence and Harassment in China''............................. 42
CECC Truth in Testimony Disclosure Form.......................... 72
Witness Biographies.............................................. 73
(iii)
THE FUTURE OF WOMEN IN CHINA: #ME TOO, CENSORSHIP, AND GENDER
INEQUALITY
----------
TUESDAY, MARCH 1, 2022
Congressional-Executive
Commission on China,
Washington, DC.
The hearing was convened, pursuant to notice, at 10:30 a.m.
in Room 562, Dirksen Senate Office Building, Senator Jeff
Merkley, Chair, presiding.
Also present: Representative James P. McGovern, Co-chair,
Senator Ossoff, and Representatives Smith, Steel, and Wexton.
OPENING STATEMENT OF HON. JEFF MERKLEY, U.S. SENATOR FROM
OREGON; CHAIR, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Chair Merkley. The Congressional-Executive Commission on
China's hearing entitled ``The Future of Women in China:
#MeToo, Censorship, and Gender Inequality'' will come to order.
One week from today the world will mark International
Women's Day. This is an occasion not only to celebrate the
critical role women and girls play in families, communities,
and societies across the globe but to also reflect on how those
societies can better protect the fundamental human rights of
women and girls. Governments that fail to treat women equally
prevent their countries from reaching their full potential.
Those that empower women in political, social, and economic
life are more prosperous and peaceful. Over 70 years ago, Mao
Zedong acknowledged the importance of women in Chinese society
with his famous statement that women hold up half the sky. Yet,
as this Commission fulfills its mandate to monitor human rights
in China, we continue to find a mixed picture when it comes to
the status of women. While the Chinese government implements
laws and regulations intended to address persistent issues
related to gender-based violence, discrimination, and
harassment, women face significant challenges in all of these
areas.
In recent months, several high-profile cases shined a
bright spotlight on the vulnerability of women to violence. In
November, tennis star Peng Shuai accused a senior Chinese
Communist Party official of sexual assault. In January, a video
appeared showing a rural woman--reportedly the mother of
eight--chained by her neck in an outdoor shed, sparking serious
concerns about human trafficking, the impact of policies of
population control, and the treatment of persons with mental
disorders. These stories come on the heels of other cases of
domestic violence and workplace harassment that reinvigorated
the #MeToo movement, as well as horrifying reports of rape
committed against Uyghur women in intrusive homestay programs
and mass internment camps. A brave survivor of these camps will
tell her story to us today.
While many of these reports generated intense interest
within China, the Chinese Communist Party worked to suppress
them and stifle expression related to women's rights, just as
it constricts freedom of expression and civil society more
broadly. It's been seven years since China jailed five female
activists for publicizing sexual harassment on public
transportation, and feminists--that is, advocates for improving
the condition of women in China--continue to be denied the
space to speak up and to organize, as demonstrated by the
coordination of online attacks and the shutdown of feminist
social media accounts last spring.
In political life, women are excluded from positions of
power, with not a single woman serving on the Politburo
Standing Committee and only one woman serving on the 25-member
Politburo and few women serving at senior levels of county,
municipal, and provincial governments.
Many of the most egregious abuses deny the fundamental
freedom of families to decide if, when, and how to have
children. Forced sterilizations and forced abortions, such as
those prompted for years by the one-child policy and those
reported in recent years by the Uyghurs and other Turkic
Muslims, are atrocities. The move to a three-child policy
raises the specter of new coercive tools and tactics denying
freedom. This all adds up to a complex landscape for women's
rights in China, deserving close scrutiny through today's
hearing. This is the first time the Congressional-Executive
Commission on China has held a hearing dedicated to this set of
issues and it shouldn't be the last. I look forward to our
witnesses helping us understand ways we can better stand up for
women in China.
Now I recognize Congressman McGovern for his opening
remarks.
[The prepared statement of Senator Merkley appears in the
Appendix.]
STATEMENT OF HON. JAMES P. McGOVERN, A U.S. REPRESENTATIVE FROM
MASSACHUSETTS; CO-CHAIR, CONGRESSIONAL-EXECUTIVE COMMISSION ON
CHINA
Co-chair McGovern. Thank you. And thank you, Mr. Chairman,
for holding this hearing on ``The Future of Women in China:
#MeToo, Censorship and Gender Inequality.'' I am proud that
this is the Commission's first-ever hearing specifically on the
status of women. It is timely, given the spotlight on the Peng
Shuai case of sexual assault and coverup and changes in the
Party's policy on gender. Since 2005, the Commission has
included a stand-alone section on the status of women in its
annual report. That initial section on the status of women
found that while the Chinese constitution and laws provide for
equal rights for women, in reality women have fewer employment
opportunities than men, and their educational levels fall below
those of men. Today we find this dynamic much the same. The
Chinese government continues to implement laws and regulations
aimed at equality. For example, in January of 2021, a specific
definition of sexual harassment was codified in the civil code,
creating liability for employers and detailing the kinds of
conduct that would fall under the definition of sexual
harassment. But in their everyday experience, women continue to
face discrimination in employment, education, wages, and legal
redress. Last September, authorities detained Sophie Huang
Xueqin and Wang Jianbing, advocates of the Chinese #MeToo
movement, under the charge of ``incitement of subversion of
state power.'' Why in the world would advocating for women's
rights be considered a crime against the state? Repression of
women has also been documented in the Commission's annual
report's population control section, on the Chinese
government's heavy-handed policies to limit births, including
the human rights abuses of forced abortion and forced
sterilization. We have monitored these horrific practices that
are part of the government's campaign against Uyghurs and other
Turkic Muslim women, and we will hear testimony from a survivor
today.
For others in the People's Republic of China, however,
these population policies are evolving, as authorities respond
to the social and economic consequences of demographic change.
We would like to know where these policies are headed and
whether Chinese authorities' heavy-handed approach will
manifest itself in a different way.
I welcome the witnesses and I look forward to your
testimony. Again, I want to thank Chairman Merkley for
coordinating this hearing. I think it is long overdue.
With that, I yield back my time.
[The prepared statement of Representative McGovern appears
in the Appendix.]
Chair Merkley. Congressman Smith now wishes to deliver some
opening comments. Congressman?
STATEMENT OF HON. CHRIS SMITH,
A U.S. REPRESENTATIVE FROM NEW JERSEY
Representative Smith. Thank you, Mr. Chairman, and thank
you for convening today's important hearing.
I'd like to concentrate my remarks on the most coercive,
horrific, and systematic abuse of women's rights by the Chinese
Communist Party. For decades, the women in China were subjected
to the brutal one-child-per-couple policy under which countless
numbers of women were forcibly aborted and sterilized against
their will. I chaired dozens of hearings, including as chairman
of this Commission and my Subcommittee on Human Rights on the
Foreign Affairs Committee, on this egregious abuse and heard
directly from many women who were forcibly aborted. I would
note parenthetically, I led the successful effort to reverse a
Clinton administration policy that denied asylum to those
fleeing forced abortion and also offered an amendment back in
1985, that is still the law, that we will not contribute to any
organization that supports or co-manages a coercive population
control program. That was back in '85.
The trauma of being abducted and forcibly brought to an
abortionist by police and family-planning cadres has few
parallels in the world. At one of my congressional hearings I
chaired in 2009, for example, a Chinese college student named
Wujian said that she was brought to a hospital against her will
and she testified that, and I quote her in part: ``As soon as I
was taken out of the van I saw hundreds of pregnant moms there,
all of them just like pigs in the slaughterhouse. The room was
full of moms who had just gone through a forced abortion. Some
moms were crying. Some moms were screaming and one mom was
rolling on the floor in unbearable pain. Then it was my turn.
It was the end of the world for me,'' she said. ``When the
surgery was finished, the nurse showed me part of my baby's
bloody foot with her tweezers.''
As I think those who will be testifying today and members
of our Commission know, the girl child particularly was
targeted in the womb, given the cultural preference for boys.
If only one child or two or even three was allowed, there was a
girl who was exterminated, something we all called and call
``gendercide.'' This has led to the world's most significant
gender imbalance anywhere in history. According to the
Congressional Research Service, as of 2021, there was a
reported 689 females for every 723 males in China, leading to
``the world's most skewed sex ratio at birth with 111 males for
every 100 females,'' per the 2020 data. This has only been
partially ameliorated by the CCP's belated recognition that
they have created a demographic time bomb and the change to a
two-child policy in 2015 and now a three-child policy as of
last year. The coercive hand of the state is nonetheless still
present. Indeed, this Commission conducted a series of hearings
following the adoption of the two child per couple policy. The
conclusion drawn from those hearings was that the two-child
policy should not be lauded because it did not change the basic
structure of coercive population control in China, and it
appears the same is true with the three child per couple
policy. The policy still violates international human rights
norms. Women in China still endure coercive pregnancy
monitoring, fines, and the immense psychological burden of
enforced birth limits. At least as of 2017, China was the only
country in the world where the female suicide rate is higher
than the male. Experts differ on the exact number, but
estimates indicated that between 25 and 40 percent more women
killed themselves each year through suicide than men. That
doesn't happen anywhere else in the world. A contributing
factor has been the coercive power to destroy their children
while in utero.
Let's not forget the bureaucracy that has been created,
mobilized, and invested in population control. The new policy
does not dismantle the brutal machinery of enforcement, nor
does it remove the pernicious incentives given to local
officials to pressure mothers to abort a child if the birth
hasn't been approved by the state. And even if the situation
has ameliorated somewhat for women from the ethnic Han Chinese
majority, the CCP's ruthless anti-natalism is still played out
with a vengeance, as we all know, Mr. Chairman, in genocidal
policies aimed at reducing Central Asian populations, including
the Uyghur minority, and others--the Kazakhs and the Kyrgyz.
Last year, in an independent tribunal in the United Kingdom
chaired by Geoffrey Nice--who led the prosecution of former
Serbian President Slobodan Milosevic--to determine whether the
CCP's policies amounted to genocide, one of the witnesses,
named Razi, presented testimony regarding how she was forcibly
aborted and told a similar story that I have heard since 1983,
when I first started my effort to combat this heinous abuse of
women's rights. A female OB-GYN named Dr. Gafur told how if a
household had more births than allowed, they would raze the
home; they would flatten the house and destroy it.
I also had at one of my hearings a woman who we were able
to get out of the country who ran a family planning program in
Fujian Province. Her self-description was: ``By day I was a
monster, by night a wife and mother of only one,'' and that she
would have women in their eighth and ninth pregnancy pleading
with her to allow them to carry their baby to term, but she
said, with resoluteness, ``We would abort each and every one of
them.''
Let me just conclude by pointing out that at one of our
hearings--and you know this, Mr. Chairman; it was our
Commission--we heard from Mihrigul Tursun who recounted her
ordeal of torture, abuse, and detention in the Chinese camps.
We've heard from many others over time. As we all know, Xi
Jinping is continuing his genocide.
And let me just say, I asked repeatedly--during the Obama
administration and even the Bush administration, as the author
of the Trafficking Victims Protection Act and four other laws
that combat human trafficking--what the linkage is between
forced abortion, the gendercide of the girl child, and
trafficking. And finally the Trafficking in Persons Report
recognized that not only is there a linkage, one of the reasons
so many women are being trafficked into China is the dearth,
the lack, of women and the extermination of the girl child as a
result of this horrible policy.
So thank you again for calling this hearing. I think we
have to be very clear that this is not over, despite what Xi
Jinping and others might have said. The machinery of the
forced-abortion policy remains intact and that is cause for
great, great concern.
I yield back, and thank you, Mr. Chairman.
[The prepared statement of Representative Smith appears in
the Appendix.]
Chair Merkley. Thank you, Congressman.
Now I'd like to introduce our panel of witnesses, starting
with Dr. Leta Hong Fincher. She is a journalist and author of
``Betraying Big Brother: The Feminist Awakening in China,'' as
well as ``Leftover Women: The Resurgence of Gender Inequality
in China.'' She is an adjunct professor at Columbia
University's Department of East Asian Languages and Cultures.
She won the Society of Professional Journalists' Sigma Delta
Chi Award for her China reporting.
Aaron Halegua is a lawyer and research fellow at New York
University Law School's Center for Labor and Employment Law,
and the U.S.-Asia Law Institute. In 2021 he authored the report
``Workplace Gender-Based Harassment and Violence in China:
Harmonizing Domestic Law and Practice with International
Standards.'' He has worked on labor rights issues for nearly 20
years, including consulting on labor issues in China, Thailand,
Burma, Malaysia, and Mexico.
Mei Fong is chief communications officer at Human Rights
Watch and a former Pulitzer Prize-winning Wall Street Journal
China correspondent. Her book, ``One Child: The Story of
China's Most Radical Experiment,'' won a nonfiction award from
the American Society of Journalists and Authors. Foreign Policy
magazine named her to its top 50 list of U.S.-China
influencers. She was previously director of communications and
strategy at the Center for Public Integrity.
Tursunay Ziyawudun is a survivor of the Chinese
government's mass internment camps in the Xinjiang Uyghur
Autonomous Region. As one of the very few survivors of these
camps who has reached safety in another country, she has
provided testimony to human rights groups and to researchers
and journalists investigating the genocide against Uyghurs and
other Turkic Muslims. Her brave voice exposed to the world the
sheer depravity of the mass internment camps and their horrific
treatment of women.
We will now hear directly from our witnesses, starting with
Dr. Hong Fincher.
STATEMENT OF LETA HONG FINCHER, AUTHOR, ``BETRAYING BIG
BROTHER: THE FEMINIST AWAKENING IN CHINA''
Ms. Hong Fincher. Chairman Merkley, Chairman McGovern, and
distinguished members of the Commission, thank you for holding
this important and timely hearing and for inviting me to
testify.
While the entire world watches Russia's horrifying invasion
of Ukraine, the Chinese government refuses to call Russia's
actions an invasion. President Xi Jinping appears to be
aligning himself with Vladimir Putin, further undermining the
rules-based international order. There are many reasons that
China's Communist regime has survived for over 70 years in
spite of the collapse of communism in the Soviet Union and
Eastern Europe, but it is impossible to understand the
longevity of China's Communist Party without recognizing the
patriarchal underpinnings of its authoritarianism. In short, Xi
Jinping views patriarchal authoritarianism and the subjugation
of women as critical for the survival of the Communist Party.
China's economy has entered a protracted slowdown just as the
country is beginning to face the demographic crisis of an aging
population, falling birth rates, and a shrinking workforce. In
response, the government has revived sexist elements of
Confucianism, upholding the male-dominated family as the basic
foundation of a strong nation. State propaganda praises Xi
Jinping's traditional ``family values'' and presents him as the
father of the Chinese nation in a ``family-state under
heaven,'' in which obedient wives and mothers in the home are
key to solving China's most pressing social problems. China's
propaganda apparatus began a crass campaign in 2007 to
stigmatize single, educated Han Chinese women in their late
20s, mocking them as ``leftover'' women to push them into
marrying and having babies for the good of the nation. This
pro-marriage, pro-natalist propaganda has only become more
intense with the adoption of the two-child policy in 2016 and
the three-child policy last summer. China's population-planning
policies also have a strong undertone of eugenics. Even as
officials urge Han Chinese women to marry and get pregnant in
order to ``upgrade population quality,'' they are slashing
birth rates among ethnic minority women, in particular Uyghur
women and other Turkic women in Xinjiang, with forced
sterilizations and abortions, as witness Tursunay Ziyawudun
will describe in her testimony.
The government is carrying out a sweeping crackdown on
feminist activists, who pose a unique challenge to China's all-
male rulers. As a result, the #MeToo movement against sexual
violence has been the target of aggressive censorship. Take the
heavy-handed reaction to Chinese tennis star Peng Shuai's Weibo
post last November 2nd, accusing China's former vice premier
Zhang Gaoli of sexual assault. Peng Shuai's post was deleted
within half an hour and she herself disappeared for weeks, only
to reemerge in a series of undoubtedly coerced appearances
coinciding with Beijing's Winter Olympics.
We are about to mark the seventh anniversary of the Chinese
government's jailing of five women's rights activists in March
2015, for planning to commemorate International Women's Day by
handing out stickers against sexual harassment on subways and
buses. Since then, feminist activists have tapped into the
broad discontent felt by Chinese women and developed a level of
influence that is highly unusual for any social movement in
China since 1989. Even though the government persecutes
activists, shuts down women's rights and LGBTQ rights centers,
and censors feminist social media content, China's feminist
networks have actually grown in recent years instead of being
wiped out.
The shrinking space for civil society in China makes it
even more extraordinary that a feminist movement is able to
survive at all. While prominent male human rights activists
have emerged over the years, very few Chinese citizens knew
about them or could relate to their abstract goals. By
contrast, feminist activists today take up causes that have
broad resonance with young women and LGBTQ people across
China--issues such as sexual violence, intimate partner
violence, and gender discrimination.
China is an autocracy with no press freedom, no internet
freedom or freedom of assembly, and effectively no rule of law.
Yet when feminist activists organize around issues that affect
the personal lives of millions of ordinary women, even the all-
powerful, male-dominated Chinese Communist Party struggles to
quash the movement.
Thank you again for inviting me to testify.
[The prepared statement of Leta Hong Fincher appears in the
Appendix.]
Chair Merkley. Thank you.
And we'll now turn to Mr. Halegua.
STATEMENT OF AARON HALEGUA, RESEARCH FELLOW, CENTER FOR LABOR
AND EMPLOYMENT LAW, U.S.-ASIA LAW INSTITUTE, NYU SCHOOL OF LAW
Mr. Halegua. Chairman Merkley, Co-chair McGovern, and
members of the Commission, good morning and thank you for the
opportunity to testify before you on this important topic. I
was asked to address the subject of sexual harassment in China.
My testimony draws upon my nearly 20 years of studying Chinese
labor issues. Last summer, I published a report on workplace
gender-based violence and harassment in China, which describes
the current state of Chinese law and practice and also makes
recommendations to the Chinese government, Chinese employers,
and global brands on how to better comply with international
standards. The full report has been submitted to be part of the
record. Today, I will share a few high-level findings from my
research, and I will start with my basic conclusion. It is my
view that in recent years China has, in fact, made important
rhetorical commitments and taken some positive legislative
steps towards eliminating sexual harassment. However, there has
not yet been sufficient action by officials, courts, or
employers to realize those commitments. In practice, Chinese
women still routinely suffer sexual harassment at work and have
little hope of obtaining meaningful redress. In terms of
prevalence, like in many countries, sexual harassment remains a
serious problem in China. While survey results vary, one study
by the Chinese Academy of Social Sciences in the 1990s found
that 84 percent of female workers reported being harassed.
So what has been China's response? At the international
level, China recently supported the adoption of ILO Convention
190 on the Elimination of Violence and Harassment in the World
of Work, which seeks to create a zero-tolerance environment for
sexual harassment. China even agreed that adopting a convention
was preferable to a non-binding resolution. However, since
Convention 190 was adopted in 2019, it has not yet been
ratified by China. Domestically, China continues to improve its
legislation. In 2020, like Congressman McGovern mentioned,
China adopted a new civil code that included a provision
specifically on sexual harassment. However, while the provision
establishes clear liability for individual harassers and
requires employers to take measures to prevent sexual
harassment, it still does not create any legal liability for
employers when they fail to do so.
Turning to the implementation of these laws, there is
evidence that some Chinese employers are taking sexual
harassment more seriously. More employers are adopting sexual
harassment policies and there is a considerable number of court
cases involving employees who have been fired after the company
found that they engaged in sexual harassment. Far more
troubling, though, is the very small number of sexual
harassment victims that ever bring a case in court. Only 6 of
the 83 sexual harassment court cases decided between 2018 and
2020 involved victims bringing lawsuits against their
harassers. Moreover, victims who do sue rarely win, and if they
do, the remedies are paltry, sometimes just a few hundred
dollars or maybe just an apology. What's worse, sexual
harassment victims who complain often face retaliation. It is
also common for them to be sued for defamation by the alleged
harasser. Indeed, far more cases are brought against sexual
harassment victims than by these victims. One female worker who
published an online account of being forcibly kissed, groped,
and undressed by her supervisor was later ordered to pay the
equivalent of $1,800 for hurting the supervisor's feelings.
Already in this culture of silence, very few victims are
willing to come forward and complain. If there continues to be
little to gain from filing a complaint but a great deal to
lose, it is unlikely that more victims will come forward.
So what can be done? In closing, I will just mention a few
recommendations from the more comprehensive list in my report.
First, the Chinese government should explicitly make employers
liable for failing to prevent or address sexual harassment,
should modify evidentiary rules that make it difficult for
victims to prevail in court, and should protect victims from
retaliation and defamation claims. Chinese employers should
establish procedures to investigate and resolve complaints, and
global brands should ensure that Chinese partners have such
mechanisms in place. And the U.S. Government should commend
China for the steps it has taken thus far, but encourage it to
do more to harmonize its domestic law and practice with the
most recent international standards.
Thank you all again for your attention to this important
set of issues. I look forward to answering any questions that
you have.
[The prepared statement of Aaron Halegua appears in the
Appendix.]
Chair Merkley. Thank you, Mr. Halegua.
And now we turn to Ms. Fong.
STATEMENT OF MEI FONG, CHIEF COMMUNICATIONS OFFICER, HUMAN
RIGHTS WATCH, AND AUTHOR, ``ONE CHILD: THE STORY OF CHINA'S
MOST RADICAL EXPERIMENT''
Ms. Fong. Thank you very much, Chairman McGovern, Chairman
Merkley, and members of the Commission. I appreciate this
opportunity to testify on the impact of China's population
planning policies and the effect it has had on women, in China
and beyond.
Now, the one-child policy began in 1980; it has shaped
China's population-planning policies for well over 30-plus
years, and then it was replaced in rapid succession with the
two-child policy in 2016 and then the three-child policy in
2021. Now, this sudden about-face that went from limiting
births to boosting births was the result of the ruinous
consequences of this inhumane policy. In short, it created a
population in China that was very imbalanced: too male, too
old, too few. When I say ``too male,'' what do I mean? There
are 30 million more men than women in China, and that's about
the population of Australia. When I say ``too old,'' that means
you have a shrinking workforce and you have more retirees in
China than you have in the population of Western Europe.
And so what does all this mean for women in China? Well,
Mao may have said that women bear up half the sky, but as far
as the one-child policy and the consequences of this, women
have borne far more than their share of the burden of this.
We'll start with the one-child policy.
As a journalist at The Wall Street Journal, my years
reporting in China, and while researching for the book, I spoke
to many women who recounted tales of being forced to have
abortions, some as late as seven months. I spoke to officials
who described how they cornered and chased women like prey,
pregnant women, and I spoke to many, many mothers who had very
heartbreaking stories to tell about being forced into acts of
abandonment and infanticide, killing their own children, all to
conform with the one-child policy. Now, of course, there's been
a switch to the two- and three-child policy, but even so, these
have inflicted new wounds on women.
Now, for example, this whole move to boost births in China
is done to ask women of China to shore up the shrinking
workplace, but they themselves are now being forced to contend
with problems in the workplace. Since the introduction of the
two-child policy, Human Rights Watch has documented a rise in
pregnancy-related discrimination against women in the
workplace. Employers now fear that women might take two or
three slots of maternity leave, instead of only one during the
one-child era, and so some companies have sought to avoid this
through job ads or interviews or workplace treatment that
discriminate against women with no children, women with just
one child, or simply women in general. Women have been fired
for getting pregnant, they've had their pay docked, they've
been asked to sign agreements pledging not to have children,
and while such practices are illegal under Chinese law, the
enforcement is lax, and redress and compensation so rare that
these practices largely remain unchecked.
Elsewhere, as well, while of course it is much easier to
use force to prevent women from having children, it does not
mean that the Chinese government isn't taking that same
approach, stick versus carrot, to try and boost births, and how
this is shaping up is in the form of growing curbs on divorce
and abortion. These are both human rights abuses. Last month,
authorities said they would reduce unplanned pregnancies and
abortions among adolescents and single women. Now, this follows
tightened overall restrictions on abortion in general that
began in 2018, and also there have been reports of a clampdown
on male vasectomies.
Now authorities say these moves are motivated by welfare
concerns, but such explanations have been met with both
suspicion and, in some cases, derision from the Chinese public,
given the state's long history of coercive birth practices. And
it is also, of course, important to note at this point that
there still continue to be coercive practices for many Uyghurs
in China, with forced sterilization, and women held in camps,
of which we will hear more on in a bit.
Last but not least, it is not only the women of China who
have borne the brunt of Beijing's population-planning policies.
The one-child policy has created a huge shortage of women and,
hence, a surge in bride trafficking in China as well as from
countries across the region, including Myanmar, North Korea,
Cambodia, and Pakistan. Human Rights Watch has documented how
hundreds of women and girls in Myanmar have been sold to
Chinese families for anywhere between $3,000 and $13,000, and
once purchased, they are pressured to produce babies as quickly
as possible. Now, you have heard the case of the woman in
chains who was held and forced to bear something like eight
children. This went viral in the weeks before the Beijing
Olympics and threatened to derail the feel-good stories of the
Olympics. This is a signal or a representation of some of the
ongoing concerns with human trafficking.
Now there is a whole host of recommendations that I have
submitted in my prepared statement. I won't go into it in
detail at this point. I think suffice it to say that it is
almost unimaginable to think that any government should be in
the business of regulating, making, or forcing women to choose
how many children they should have. It needs to stop. Thank
you.
[The prepared statement of Mei Fong appears in the
Appendix.]
Chair Merkley. Thank you very much for your work and for
your testimony.
And now we turn to Ms. Tursunay. Delighted to have you and
appreciate your willingness to share your knowledge and your
experience.
[Note: Ms. Tursunay's remarks are made through an
interpreter.]
STATEMENT OF TURSUNAY ZIYAWUDUN,
FORMER XINJIANG CAMP DETAINEE
Ms. Tursunay. I am very thankful that you have given me
this opportunity to talk about what I have been through and
what has happened to my people. I am very grateful for the
opportunity to speak today.
Ms. Tursunay. Thank you, Chair Merkley, and thank you, Co-
chair McGovern. I am very grateful for the opportunity to
testify and to tell the world about my experience and the
experience of Uyghur women. It is painful to speak about my
experiences, but I see it as my duty to be the voice for those
who are still in the camps and in prison and those who died in
front of my own eyes.
I was locked up in camps two different times. The mental
and physical torture I have experienced have left deep scars on
my heart. I was taken into a camp for the second time in March
2018 and stayed for nearly one year. We always lived in fear.
We feared beatings if we could not memorize the propaganda
lessons correctly. Every day we heard screaming and crying
voices. Then it happened to me. Several times the guards took
me out of the cell and into an interrogation room, and they
beat me. Once, they took me out in the middle of the night,
along with a young woman in her 20s. In addition to police
officers, there was a man in a suit wearing a mask. I don't
know where he came from. These men raped the young woman. Three
police officers raped me as well. They were always taking
girls. Sometimes they brought a woman back near the point of
death. Some of the women disappeared. I saw some bleed to death
with my own eyes. Some lost their minds in the camp. Every time
I think about these things, my heart feels like it's been
sliced with a dagger. My nightmares make me relive that fear
every day.
I thank the CECC commissioners for speaking out for Uyghur
women. We are grateful to Congresswoman Wexton for advocating
for Ms. Gulmira Imin. We are very grateful for the resolution
condemning the genocide and the forced labor bill that passed
in December.
I ask you to do more. Please do more to accept Uyghur
refugees. I came to the U.S. with the help of the U.S.
Government and the Uyghur Human Rights Project. There are more
people like me who managed to escape China, but they are still
afraid to speak. Living in neighboring countries, they are
still living in fear of being deported to China at any time.
Please also investigate what can be done to help Uyghur
asylum seekers. I know many Uyghurs who have been in the U.S.
since before the crackdown in 2017, which is already five years
ago, and they still have not received their asylum interview.
The U.S. is doing so much because of your great sympathy for
the Uyghurs. Can you also investigate why so many Uyghurs are
waiting for years for a decision on asylum? I also hope
Congress can do more to help Uyghur torture survivors get
medical care and counseling. My nightmares and the mental
anguish are constant. Camp survivors like me need help for
extreme trauma. Other Uyghur Americans are also suffering
terrible mental trauma.
Finally, I want to ask for more support for human rights
groups and Radio Free Asia to do more programs to help women
who are victims of the Chinese government's atrocities. For
example, I listen to Radio Free Asia Uyghur service every day.
I hope there can be more news stories about women in the
genocide and information about how Uyghur women can survive our
mental torment. More stories about achievements of strong
Uyghur and Kazakh women can help give us inspiration and hope
for the future. Thank you again for inviting me.
[The prepared statement of Tursunay Ziyawudun appears in
the Appendix.]
Chair Merkley. Thank you so much for your testimony about
these conditions. Thank you to all of our witnesses. We're
going to turn to a period of questions now. Ms. Tursunay, let
me begin with you. Could you clarify for those who are seeking
to understand your experience whether the camp you were put
into was a strategy by the Chinese government to separate women
and prevent them from having children? Was it a strategy for
forced labor? Were you forced to work? And at what point, and
why, did the government release you from the camp?
Ms. Tursunay. I don't know what kind of strategy the
Chinese government wishes to implement, but one thing that I
know--and it's clear--is the Chinese government wants Uyghur
women to not have children. They imposed sterilization on every
woman. It's just amazing that they want to destroy Uyghur women
in different ways.
In different ways, the Chinese government tries to separate
the families--family members. For example, this picture that I
am showing you, this woman was separated from her children. The
only thing is that they just try to destroy the Uyghur families
and Uyghur women.
Chair Merkley. And if you could, at what point were you
released from the camp and--I know you were admitted or put
into a camp a second time--what was the strategy of the Chinese
government? Why were you released?
Ms. Tursunay. I don't know what purpose the Chinese
government has in its mind, but the only thing that I know is
that my husband was living in Kazakhstan, and he advocated for
me. I have seen that the Chinese authorities have shown me that
my husband was campaigning for my release from the camp, and he
was holding my Chinese ID card, and talking about me, saying
that I am innocent and I should be released from the camp. And
my understanding is that because of my husband, and he
campaigned for me from Kazakhstan, that that's why the Chinese
government had to release me.
Chair Merkley. Thank you. No one should ever have to go
through what you endured and what other Uyghur and Turkic
Muslim women are experiencing. You are a voice for so many, and
you are doing a great service by helping shine a light on this
inhumanity in this strategy of genocide being conducted by the
Chinese government. So thank you. Thank you very much.
Ms. Tursunay. Thank you for giving me this opportunity, and
our people back home--many people are very hopeful that the
American Government will help us. They are really looking
forward and are really hopeful that you will support Uyghur
people. Thank you.
Chair Merkley. Thank you. I'm going to now turn to Dr.
Fincher.
Dr. Fincher, I was very struck by your description of the
patriarchal authoritarian views of Xi Jinping and that the
subjugation of women is critical for the survival of the
Communist Party, which is an interesting way to characterize Xi
Jinping's views--that subjugation is critical for the survival
of the Party.
I do certainly understand your followup in which you talk
about the elements of Confucianism and the strategy of a male-
dominated family and this belief that China will thrive with
obedient wives, but why is the subjugation of women critical to
the survival of the Party? Why do you put it that way?
Ms. Fincher. Thank you for your question, Senator Merkley.
It is multifaceted. The Chinese government faces all of
these economic problems: the shrinking of the workforce, aging
of the population, the sex ratio imbalance which is related to
a lot of--tens of millions more men who are considered to be a
grave threat to political stability because they are not able
to find wives, domestic violence.
The Chinese government passed an anti-domestic violence law
in 2016, I believe largely to make itself look like a more
responsible global power, but that law has basically not been
enforced. And after many years of doing research on women in
China--more than a decade--I've come to the conclusion that
basically the Chinese government wants the violence against
women to continue as long as it is happening within the home.
According to this old Confucian ideology, which is now
being resuscitated in Chinese state media today, there is such
an emphasis on everybody playing their proper role within the
family that is very hierarchical. There is this aggressive
propaganda about how women need to be wives and mothers, very
docile and obedient within the home. So women then take over
the harmony within the home. The Communist Party continues to
emphasize in its propaganda how a harmonious family is the
basic cell of society; that as long as the violence is
contained within the home, then that violence is not likely to
be directed at the state. So that's one of the ways in which I
believe that the subjugation of women is very important.
I mean, if you compare China with surrounding countries
like Japan, for example, Japan is also highly patriarchal and
yet they've adopted this Abenomics policy of trying to
encourage more women's participation in the workforce, and
they've actually succeeded in raising female labor force
participation rates.
But in China we see the absolute opposite where female
labor force participation is falling. There is no effort on the
part of the government to decrease or reverse that trend in any
way. China is the only major economy, I believe, in the entire
world where female labor force participation was falling before
the pandemic and the gender income gap was increasing. And why
is it that there is so little female political representation?
Not only is it abysmally low, it's actually falling within the
Central Committee.
There are so many different signs--and the severe crackdown
on this extraordinary feminist movement ever since 2015. Why is
it that China's leaders are so threatened by feminism? It's in
large part because marriage rates are falling, birth rates are
falling. Young women today--particularly college-educated young
women--do not want to marry or even have one child, let alone
two. And so they are--in advocating for the emancipation of
women, these feminists are actually posing a real threat to the
whole agenda of the Communist Party, and there are many ways in
which this basically threatens the ability of China's leaders
to control the entire population.
Chair Merkley. I am now way over my time, which I'm shocked
about. How did seven minutes go by so quickly? I apologize to
my colleagues, and we'll turn to Representative McGovern.
Co-chair McGovern. Thank you very much.
Ms. Fong, you testified that ``the Chinese state switch to
purportedly pro-natal policies has inflicted new wounds on
women.'' You recommend that the Chinese government fully
respect reproductive rights, stop regulating women's bodies,
and provide free access to safe and legal abortion and
contraception.
You know, we're all against China's human rights abuses,
against its heavy-handed intrusion into the lives and bodies of
women. I think it's important that when we are talking about
opposing China's denial of basic reproductive rights that we're
talking about whether they are coercive anti-natal policies or
pro-natal policies.
You know, the abuse of women, the taking away of women's
rights, is the heavy-handed role that the Chinese government is
playing in saying you can do this, and you can't do that, or
you can do this.
Can you expand on your recommendation?
Ms. Fong. I'm sorry. Could you clarify that question?
Co-chair McGovern. I guess what I'm trying to say is kind
of reemphasizing the importance that--when we talk about
opposing China's heavy-handed approach in dealing with women
that it is important that we are talking about not only their
coercive anti-natal policies but also their pro-natal policies,
and if you could just maybe comment on that.
Ms. Fong. Yes, I think China is unusual among many
countries. I mean, China is not the only countryongat is facing
falling birth rates, This is a reality in most modern societies
where women are educated and in the workforce and having
smaller families, and delaying when they start reproducing as
they go on and go to college.
China, however, is unusual in that it is adopting very
different tactics from the rest of the world in terms of trying
to increase family size. It isn't spending a lot of money on
ancillary services like childcare, schooling--all the things
that are necessary when you are in the business of promoting
equality for women and promoting equal parental rights in the
workplace. It is unusual in that respect, and I think this goes
towards Dr. Hong Fincher's point. It isn't so much about
births; it is about control. Thank you.
Co-chair McGovern. I appreciate that. I just think it's
important that that point be emphasized because it is about
control, and women should decide whether they want to marry,
whether they want to have children, whether they want to have
one child or five children--whatever.
Ms. Fong. Or no children.
Co-chair McGovern. Yes, or no children. That is up to the
woman; not up to the government to decide how a woman deals
with her life.
Mr. Halegua, women or men who suffer sexual harassment or
abuse are often burdened with mental trauma from the
experience. Does the Chinese system--whether legal or social--
provide psychosocial or other support for those who suffer
trauma? Is mental health covered under the Chinese health
system or readily available?
Mr. Halegua. It's not a subject that I'm particularly
expert on. I will say in the legal system, in looking at sexual
harassment cases--and part of our study was to analyze every
court case we could find that mentions the words sexual
harassment--what did become clear in trying to figure out when
courts would actually award damages to sexual harassment
victims is that courts often required that victims have some
kind of psychological evaluation and that there be actual
documented psychological trauma before they would be willing to
award some kind of damages to that victim.
In terms of the adequacy of services, the things I've read
suggest that certainly they are falling short in terms of
providing these services. I think a big piece of it is that
many people never really want to come out and complain and talk
about what happened to them. There's obviously a certain stigma
attached to being a victim of sexual harassment, and oftentimes
it leads to problems at work--you have become the problem if
you complain about sexual harassment; and this could lead to
problems in one's own family or social groups, the stigma that
comes with being someone who complains about sexual harassment.
So a lot of people aren't really coming forward and seeking out
the help for the trauma that they might have suffered.
Co-chair McGovern. Thank you.
Dr. Fincher, you testified that China's feminist networks
have grown in recent years despite the overall trend in
restrictions on civil society. To what do you attribute this
dynamic? Is there a way that those of us outside China can
support the movement, and is there a way that we can hurt it?
Because one of the struggles we always have when it comes to
supporting human rights defenders and those struggling for
their human rights is how, despite our best intentions, we do
something that makes it more difficult for them.
Ms. Fincher. Thank you for your question, Chairman
McGovern.
There are many reasons why the feminist movement is so
transformative today. One, at its core, there's a very radical
political feminist movement. Those political activists at the
very core are extremely savvy organizers. They're very
imaginative. They're located in many different places. It's a
rather large community. It has increased significantly since
the jailing of the so-called Feminist Five in 2015. And so this
core radical base of Chinese feminists is actually part of a
global diaspora of Chinese feminists as well, who keep the
momentum of the movement going.
It is very different from these isolated--in the past--male
heroes who were very well known, but then the Chinese
government may kick them out of the country and then they lose
all relevance. The movement does not rely on a single heroic
leader and it has become the mainstream ideas about just
speaking out against widespread sexism and misogyny in Chinese
society. It has become so mainstream. These are very popular
ideas now. They've caught on among millions and millions of not
just young women but LGBTQ people, young men. There are many
allies.
So these are ideas that, really, hundreds of millions of
people in China can endorse. And so it's popular. There's a
radical core. The activists themselves, the most active
feminists, are themselves persecuted. Sometimes they're jailed.
Some of them are in jail right now.
What can we do to help? Well, certainly, I would agree as
well with Tursunay Ziyawudun in that the U.S. should do much
more to provide a refuge for those fleeing persecution in
China, and I know that those who manage to make it to the U.S.
still have a lot of difficulty.
In fact, I've helped a lot of these people with their
visas. They have problems with visas, problems staying here. We
can open our doors and welcome more of these people fleeing
persecution and help give them the resources they need to make
a new life in the U.S. when it is really impossible for them to
live back in China.
And the thing is that there's a lot of this communication
because of the internet. Of course, there's no internet freedom
in China, but the global diaspora of Chinese feminists and
Uyghurs, I might add, has become so large. There's a lot of
communication among these people. And so we can provide more
resources for those who have fled China who have come to the
U.S.
Co-chair McGovern. Thank you.
Congressman Smith.
Representative Smith. Thank you very much, Mr. Chairman.
Thank you to our panelists, and Tursunay, all of our hearts
and prayers are for you, as you have suffered so much, and this
Commission and all of us on this panel are absolutely committed
to trying to end this genocide and to provide some relief,
especially, as you pointed out, from the mental trauma that you
suffer because of the terrible abuse that you suffered at the
hands of the Chinese Communist Party. So thank you for having
the courage to come and testify and, again, to keep the focus
on what Xi Jinping is doing in Xinjiang so that we're all
focused on it. Thank you.
Mei Fong, I appreciate the comments you made about the fact
that some 30 million men are single. I remember I chaired
hearings at which the predictions were being made 15 years ago
that by 2020, 20 million men would not be able to find wives
because of the extermination of the girl child through sex-
selection abortion as a direct consequence of the one child per
couple policy. So thank you for reminding us of that ongoing,
terrible debacle that has occurred, and also your point about
how the officials chased pregnant women like prey.
Again, I have chaired 75 congressional hearings on human
rights abuses in China, offered a countless number of
resolutions and amendments and bills on the issue of forced
abortion, always with an idea that there are two victims
involved--the mother, who is being horribly mistreated, and the
baby, who is being dismembered or killed.
I would disagree with you when you talked about abortion
protecting unborn children as a human rights abuse on page two
of your testimony. I believe that the abuse is when a child is,
literally, dismembered--killed by dismemberment or chemical
poisoning.
You know, we know more about the magnificent life of an
unborn child now than ever before. Ultrasound has shattered the
myth that somehow an unborn child is not human and alive. We
know that the baby has a wake cycle, grows, and develops, and
birth is merely an event, just an event. An important one, but
an event that happens in the life of a child.
So our protection needs to extend prior to birth to ensure
that these children are not, as I said, dismembered or
chemically poisoned. We know that children before birth feel
pain at least at 20 weeks, and now the evidence is strongly
suggesting that as they're being dismembered at 15 weeks they
feel that, too, and until they are dead they feel that pain in
a most excruciating way. Now, some could just dismiss that or
trivialize it or ignore it, but that's a terrible reality.
Bernard Nathanson, the founder of NARAL and one of the
leading pro-abortionists in the 1970s, said, ``I've come to the
agonizing conclusion I presided over 60,000 deaths.'' He was
the head of the biggest abortion clinic in New York City. And
what caused him to change? Dealing with unborn children as
patients in need of a blood transfusion and some other kind of
benign intervention to enhance their lives, including those
with spina bifida.
So I disagree with you on that. But I would like to ask you
on the issue of sex-selection abortion whether or not you
support sex-selection abortion, and I say that because the
terrifying impact on China and on Asia continues to be felt to
this day.
I had a hearing in 2016. I had several hearings. One of
them was with Mara Hvistendahl, who said in 2013 that there
were over 160 million missing girls in Asia--160 million as a
direct result of sex-selection abortion. Almost none of them
were killed at birth. They were killed after an ultrasound
revealed at the fifth month that that child happened to be a
girl and because she is a girl she is exterminated. A hundred
and sixty million.
And then she went on to say that that equates with the
total number of all the women and girl children living in the
United States of America. So every woman you ever see--my dear
wife, my daughters--every woman in this country, add them all
up. That's how many are missing as a result of sex-selection
abortion in Asia. And, of course, that's not just China, but
it's Asia. But China is missing tens of millions as a direct
result.
So my first question to you is about sex-selection
abortion. Do you support it--I mean, the devastating impact on
the girl child. I believe that not only violence against women
but also discrimination against women starts in the womb. If
you have a country where the girl child is construed to be less
than human and should not continue living simply because she's
a girl child, that is a terrible human rights abuse.
But I would appreciate your thoughts on that.
Ms. Fong. Thank you very much for that. And something that
you may not know about my personal history is that if there was
sex-selective abortion available at the time when I was born, I
probably would not have been born. I am one of five daughters
in a very traditional Chinese household. My father was one of
16 out of 18 sons. They, clearly, cared a lot about sons.
So on that position, at least, I certainly see the value of
girls and I certainly see why it is a problem not just in China
but in many parts of Asia and beyond where there has been a
long patriarchal system valuing boys and how that has created
all sorts of evils and problems, particularly, as we see in
China and elsewhere with sex-selective abortions and gender
imbalances.
However, I think also as part of this culture and need to
value women, we need to value women's choices, and I will say,
in short, that while it takes a village to raise a child, it
does not take a village to determine a woman's choices on how
many children she has, if she has children at all. So those are
my thoughts on that perspective. Thank you very much.
Representative Smith. I appreciate that. If I could ask you
further, one of the things that I brought out--and again, I go
back to 1983 when I first heard about this issue, and I've
worked with a number of NGOs--a lot of the NGOs wouldn't do a
thing. I remember arguing with Amnesty International for years
about why were they silent on forced abortion in China.
There were people in 1985--there was a hearing held right
here in the Capitol in which the argument was, it's all over.
The high tides are over. And I said, absolutely not. Then
Michael Weisskopf did a three-part series for the Washington
Post in which he documented the horrific abuse of the one child
per couple policy. And then amendments were offered by me and
others that said any group that supports or co-manages it,
including the U.N. Population Fund, should be disqualified from
getting funds. We want no complicity whatsoever in this abuse
of women and children.
But one of the mainstays throughout all of this besides,
again, women being forcibly aborted, was that all single
women--any unmarried woman would be also forcibly aborted, and
I've met with several myself, both in China and others here,
part of the diaspora, some of those lucky ones who got refugee
status. And I'm just wondering, you know, what is the status of
that now? Can an unwed mother continue her pregnancy to term?
Ms. Fong. Thank you for that question. Insofar as the
status of unwed mothers in China and their difficulties
obtaining all sorts of reproductive services, and it can be in
both directions--in the past, abortions have been quite easily
obtained in China and we both, of course, know many people who
have used it, actually, as a form of contraception.
Now that appears to be reversing now because of the Chinese
government's stance to encourage births, at least among the Han
population, like I said. Last month, there were new regulations
unfolded that appeared to be winding that back insofar as
giving abortion services for unmarried women and adolescent
women.
Now in either of these cases, what it amounts to is
coercion and limitation on women's choices, and that is never a
good thing. And as to your question on human rights groups and
what they have said, I think, in principle, human rights groups
are all about the opposition of force, the opposition forcing a
woman to have the child, the opposition to forcing a woman to
have sex, the opposition to forcing women in general. Thank
you.
Representative Smith. Yes, I appreciate that so much. And,
again, we do have a fundamental disagreement on the unborn
child. I think they are worthy of protection and, you know,
I've----
Co-chair McGovern. Thank you, Congressman. We are----
Representative Smith. I'll just finish up real quick, if
you don't mind, Mr. Chairman. A number of women who are post-
abortive and wish that someone had said, you know, that much
agony often follows those who've had an abortion; it's all
about reconciliation and hoping that they can get on with their
lives. But it is a tragic loss of life.
So thank you, and I yield back.
Co-chair McGovern. Thank you.
Congresswoman Steel.
Representative Steel. Thank you, Mr. Chairman, and thank
you to all the witnesses for coming out today, and I'm just so
grateful. I think it's appalling that the CCP refuses to call
Russia's recent actions an invasion and it is also appalling
that Chairman Xi Jinping is standing with Putin. Add this to a
long list of actions by the CCP to cheat and abuse the global
rules-based system and another example of their human rights
atrocities.
As we speak, the CCP still limits women's access to
leadership positions and is virtually run and controlled by
men. The CCP steals large volumes of information and censors
its own people and information. The recent video of a chained
mother of eight and the censorship of those who posted about it
in China and sought additional information is a perfect example
of the CCP's ongoing abuse of its citizens.
A study by Johns Hopkins Bloomberg School of Public Health
and the Kachin Women's Association Thailand estimated that
about 21,000 women and girls from northern Myanmar were forced
into marriage in just one province in China from 2013 to 2017.
The United States must stand and fight for the women and
girls of China who are being oppressed and prosecuted by the
CCP. Women should not be prosecuted for speaking out against
human rights abuses.
Having said that, to all the witnesses, anybody who wants
to answer, please help me to answer this. My first question is:
China's labor force is declining; decades-long birth policies
that we've been talking about today and its aging population
will weigh on its economy. The CCP allows for gender inequality
in education and health. What can the United States and major
companies do to give these women voices and equality? And any
witnesses----
Ms. Fincher. I'll take a first stab at that. One of my
great frustrations in just observing the international response
to abuses by the Chinese government is that all of these
multinational corporations seem to only be thinking about their
bottom line.
And so I don't know what the U.S. Government can do to
affect the stance of these kinds of corporations or
international organizations like the International Olympic
Committee, for example. Perhaps go through the United Nations.
But, of course, you know, the U.S. Government can come up with
certain policies, perhaps sanctions, but I see those as having
somewhat limited impact when you have so many American
corporations that simply don't care about doing the right
thing. So this is a very tricky question. I don't know who else
wants to jump in.
Representative Steel. Actually, I sent a letter out with 17
other Congressmembers right before the Olympics to all these
corporations. They are spending billions of dollars on
advertising and I asked them to spend just a little bit for--
you know, let the whole world know that human rights violations
in China--that's what's happening and I didn't get any
responses from these 17 corporations. I was very, very
disappointed.
So if anybody wants to answer, that's good, but I can go
into----
Ms. Fong. I can jump into one here, very briefly.
Representative Steel. Sure.
Ms. Fong. I think there is one possibility--a sort of very
simple request that's possibly doable. U.S. companies do a lot
of business in China, as we know. U.S. companies partner with
Chinese companies. I think one good ask is to ask them to stop
participating in these discriminatory workplace practices
against women in China, who make up quite a significant amount
of their workforce and employees either by contract or through
their partnerships. That is something that we can ask and we
can push for that, I think, that that would make sense for U.S.
companies. Ask that.
Representative Steel. Thank you for that answer. And my
second question is, after the events of tennis star Peng
Shuai's wavering, Chinese women must be more fearful than ever
about speaking out against abuses. What is morale and day-to-
day life like in the long-term for women in China?
Ms. Tursunay. I would like to answer your previous
question. I'm sorry. I was a bit late.
Representative Steel. Go ahead. Thank you.
Ms. Tursunay. I just would like to answer the previous
question. The forced labor issue--the forced labor in the
Uyghur region is still continuing. Many detainees from the
concentration camps now are moved to factories to work as cheap
labor. So it is still continuing. I really wish that the U.S.
Government could do something to stop it. Implement the End
Forced Labor Policy Act and just take practical action.
I believe in the power of America because we, the Uyghurs,
really believe in what America can do. We deeply believe
because previously the U.S. Government was able to save Ms.
Rebiya Kadeer from jail and brought her to America and later,
myself. I was saved by America as well and I was able to leave
the concentration camps, and through Kazakhstan I came to the
United States as well. All of the Uyghur people deeply believe
that if the American Government wants to do something, they are
able to. So that's our hope. I mean, sometimes I really think--
like, it's been six years that we've been talking about
genocide happening in the Uyghur region and we keep talking
about it--it's already there. And my personal hope, my personal
wish, is that America should take action and stop the genocide
and stop the forced labor in the Uyghur region.
Representative Steel. Thank you very much.
Mr. Chairman, my time is up. Or do you think I can hear her
on the second question?
Chair Merkley. Thank you very much, Congresswoman. We do
have two more Members of Congress waiting and so I think we
should proceed and then come back to you if you're able to stay
with us for a second round.
Representative Steel. Thank you.
Chair Merkley. I'll now recognize Senator Ossoff.
Senator Ossoff. Thank you, Mr. Chairman. Thank you to our
panel for your powerful testimony today. Ms. Ziyawudun, thank
you for your courage and your testimony and for sharing your
experiences.
I'd like to ask you, what about the systematic mistreatment
of women in detention camps in Xinjiang does the U.S. Congress
need to know that you've not yet had the opportunity to share
today?
Ms. Tursunay. The mistreatment that women face at the
concentration internment camps is extreme and sometimes I don't
really wish to think about it. It's just really scary. I am one
of the witnesses to the mistreatment. I personally have
witnessed that a 21-year-old girl was raped and also some
unmarried girls who were sterilized and some women died from
bleeding.
I have witnessed all this. The mistreatment toward Uyghur
women is very systematic. It's very widespread and it's always
there. So it's just horrifying to think about it. One unmarried
girl was pleading, saying that, Look, I have not even gotten
married yet; why would you do violence to my uterus?
Senator Ossoff. Ms. Ziyawudun, thank you for your
courageous testimony and for establishing for the historical
record and for the information of the U.S. Congress your
testimony with respect to these ongoing atrocities.
With my brief remaining time, I would humbly invite you to
make any comments that you believe should be heard by the
broader American public--by the American people.
Ms. Tursunay. I am begging the American Government to take
action. Please, do more. Human rights violations are common in
China, and the Chinese Communist Party is doing whatever they
want to do, despite rules, pressure, and just by the world
watching it. But I really wish that if the American Government
wished to take action, just to take action, do more, because we
believe that you can do more.
To me, you know, while I was in the camp, the camp
officials told us that within five years the world would be
controlled by China. I mean, I don't know whether America is
scared by China, as nothing practical or no action is happening
right now. However, people really believe that America is very
strong.
I am really sorry if I am saying something wrong, because
I'm not really a well-educated person. I don't know how
politics works. But just as an ordinary woman, I am just
speaking out what comes to my mind from what I have witnessed
and what I have been through.
Yes, the world is doing something, but the Chinese
Communist Party and the Chinese government is still able to do
whatever they want to do. Like, for example, we tried to stop
the Olympics, but it happened, and we tried to stop many things
from happening and stop China's violation of the Uyghur people,
but it's still happening.
So my question--sometimes I wonder whether the world or
America is fearful of China, and just as the Chinese Communist
Party said: the world will follow and obey us whatever we do.
So I really wish to see action by the American Government and
by the people.
There are millions of people still in detention. I don't
know why the world is still watching what's happening there.
Look, those kinds of people, they are just among the millions
who've been separated from their family members and--I'm really
sorry if I'm saying something wrong. Sometimes I think that we
have just disappeared from the Earth.
Sometimes I lose my hope for the world. I don't know what's
happening. I just wish to see some action. I don't want my
people to disappear.
Senator Ossoff. Ms. Ziyawudun, your testimony today steels
the resolve of the United States and the world to confront
these crimes against humanity, and please know that your
testimony has been full of courage and that Congress, the
American people, and the world are grateful to you and full of
respect and admiration for you for speaking out, even at
personal risk and risk to your family and for sharing your
experiences and the experiences of your people with us.
I thank you for your testimony. I ask, humbly, that the
interpreter relay this message to the witness prior to
returning the microphone to the Chair. Thank you, Mr. Chairman.
Ms. Tursunay. Thank you. Thank you very much for giving me
the opportunity. I'm really sorry I got really emotional.
Chair Merkley. Thank you so much for your passionate
testimony, and it makes a difference to have your voice heard,
which is exactly why we invited you to join us in this hearing
today. Many of us here on this Commission, all of us on this
Commission, are fighting to draw attention to human rights
issues in China and certainly today to focus on the treatment
of women, and you've added a great deal to that conversation
and the challenges that face us in trying to change the
situation.
I will now defer to Congresswoman Wexton, who, I believe,
is waiting to join us.
Representative Wexton. Mr. Chairman, thank you so much. I
also want to applaud the brave women of China who are speaking
out against harassment, violence, and discrimination. Ms.
Tursunay, especially you. I know that it's extremely difficult
to have to relive all of the horror that you went through in
the camps and every time you come and testify here on the Hill,
but it makes a huge difference and I just want to say thank you
so much for everything that you do.
We all know the story of Peng Shuai. I was honored to lead
the resolution in support of Peng, which passed the House
unanimously. Her story, rightly, got a lot of attention but
that's because she's a famous athlete with very famous friends
who worried about her, and for every Peng Shuai there are
thousands of others who have been disappeared, charged with
crimes, and trolled online for speaking out.
I want to use some of my time to talk about a woman who is
currently serving a life sentence in China, Gulmira Imin.
Gulmira and her story were brought to my attention by the Tom
Lantos Human Rights Commission. Gulmira is a Uyghur Muslim who
served as a government employee. She was arrested in 2009 after
authorities alleged she had organized a protest and leaked
state secrets to her husband in Norway. Her family was never
notified of her arrest and didn't even know where she was being
held until they saw her in a Chinese documentary dressed in
prison garb.
In 2010, Gulmira was sentenced to life in prison after
being tortured and forced to sign a confession. She was not
allowed to meet with her lawyer until her actual trial date,
and her appeal was rejected. She's being held in Xinjiang
Women's Prison and is allowed one family visit every three
months. And as shocking and heartbreaking as Gulmira's story
is, it is far from unique. I've heard dozens of similar
accounts from people in the Uyghur diaspora just outside of
Washington, D.C., in northern Virginia, which I represent.
Ms. Tursunay, as-salaam aleikum. It's wonderful to see you
again.
Ms. Tursunay. As-salaam aleikum. Aleikum salaam.
Representative Wexton. I do want to thank you again for
sharing your heartbreaking story. I'm so glad that you feel
safe enough now to actually come out and tell your story and
share it because it's so compelling and it's so important.
Now, you talked a little bit in your testimony about the
need for the U.S. to accept more Uyghur refugees because even
if they make it out of China, they occasionally are at risk of
being sent back to China to face charges if they're in a
neighboring country. Can you speak a little bit more about
that, please?
Ms. Tursunay. Regarding the refugees or asylum seekers,
personally I have come to the United States--it's been about a
year now--and also I have witnessed other Uyghur people in the
community who have problems in getting proper status in
America. For example, many Uyghurs don't have proper status in
America, and are unable to have their children study in the
higher education system, and also many families are unable to
reunite because they don't have enough status so they are
unable to sponsor or bring back other family members that live
in other countries.
And, for example, there is one person, my friend Amirah
Guterson, who is another camp survivor, and she's unable to
reunite with her husband because of her status. And although I
don't believe that the U.S. Government will deport any Uyghurs
back to China, still some people fear this.
Representative Wexton. And I know that that's something
that's happening in other countries. So that's very concerning
to me and that's why I have a bipartisan bill with Vice
Chairman Chris Smith and also with Representative Deutch that
would grant Uyghurs P-2 refugee status here in the U.S., which
would, essentially, expedite their ability to apply for asylum
here in the U.S.
Now, I have people on my caseload here who have been in the
process of trying to clarify their status and get asylum here
in the U.S. for over 8 to 10 years. And so it's really, really
sad that it's taking them so long to get their status and to
have that kind of safe feeling.
Now, it's very important that this legislation pass. It was
rolled into the America COMPETES Act. But, you know, I'm hoping
that the Senate will make sure that it stays in there in the
final version of this legislation.
Chairman Merkley, I'm asking you, please, to make it a
priority of yours to make sure that this legislation ends up in
the final version of whatever bill comes out through the
conference process and that we have P-2 refugee status for
Uyghur folks who have fled China.
And that's all. With that, I will yield back, Mr. Chairman.
Chair Merkley. Thank you. And I certainly support that
effort completely, and thank you for being such an advocate for
it in the House.
We have no other members of Congress who are waiting, but
I'm going to ask a couple of final questions and I wanted to
address, specifically, Mr. Halegua.
You described the law on the protection of women's rights
and interests, and then noted that very few people--very few
women actually filed cases involving harassment or abuse--I
think you cited 6 out of 83 cases, if I got the number right--
and then if they do file they are subject to retaliation and
countersuits regarding defamation. And so the system is
completely rigged against them and, certainly, the message that
has been sent by the treatment of Peng Shuai seems to reinforce
that, that the Chinese government is saying, You will be silent
when you are abused and if you speak out you will suffer for
doing so.
Is that the message the Chinese government is sending?
Mr. Halegua. Thank you for the question, Senator.
Yes, I believe that they're certainly, at least in these
high-profile cases--a mixed message at best. You know, on the
one hand, the Chinese government is passing laws encouraging
women to come forward and complain about sexual harassment. But
then we see these other acts.
There was one case involving an intern from CCTV that
received a lot of attention--she goes by the name Xianzi--and
years after she had completed her internship she posted
something online about a TV news anchor who had sexually
harassed her during that time. And one of the interesting parts
of her account was that after she did so, eventually her
parents were contacted. And according to her, the police or the
other authorities had sort of intimidated her and tried to
suggest that if she went forward and continued with her
complaint, or went forward with her court case, there would be
some repercussions for her parents.
So this type of behavior, obviously, is just one more
reason that makes it quite the uphill battle for women who have
been victims of sexual harassment making that decision of
whether to complain or whether to come forward, and I think
that is the problem. The calculus--you know, in a system that
largely relies upon victims being willing to come forward,
being willing to talk about what happened, and talk about who
they've been harassed by, there's already a lot of reasons to
not take those steps, and if we keep piling on the reasons and
making it less attractive, it's hard to see a path towards
really getting at improving the situation around sexual
harassment.
Chair Merkley. Thank you.
I now want to turn to the question that has been mentioned
a few times, which is the potential role of U.S. companies
operating in China. One can imagine that these U.S. companies
would say, Hey, there's very capable and talented women who can
strengthen our operations here and perhaps they're being
ignored by Chinese companies; we will want to, certainly, give
them an opportunity to come and strengthen our efforts. But do
we see U.S. businesses that are operating in China really
reaching out to promote the hiring of Chinese women and giving
them opportunities, opportunities of leadership and management
that they might be denied in many Chinese companies?
I don't know, Ms. Fong, if you want to start with that
conversation, or Dr. Hong Fincher.
Ms. Fong. Thank you for the question.
I believe U.S. companies want to hire the best people but
they also want to work with the Chinese companies and they want
to have an easy time and they also want to work with the
Chinese authorities. So it's a question of which one is
balanced out and which one is--I think the U.S. Government has
a role in incentivizing U.S. companies to do the right thing
with regard to their workforce and gender equality for women.
Thank you.
Mr. Halegua. Thank you, Senator.
I would just echo--American companies in China really are
in two roles. Many of them are employers, have their own
operations there and so, I think, to the extent that they can
be sort of ahead of the curve in complying not only with
Chinese law but implementing practices, for instance, around
sexual harassment, even though the Chinese law is quite weak in
terms of any consequences if you don't live up to what the
regulations demand, there's no reason that American companies
can't be instituting the same types of anti-sexual harassment
programs in terms of policies, training, complaint mechanisms,
investigations, that we would expect them to implement here in
the United States.
The other role that they play is as purchasers of goods and
services--and we've already seen in a lot of instances where,
at least through codes of conduct and auditing--I'm not
suggesting that those have always been particularly effective--
but the mechanisms are there for U.S. companies doing business
to place requirements on their Chinese suppliers or, in a more
positive light, work with their Chinese suppliers to make sure
that they are doing the types of training and have the right
types of policies and mechanisms even to live up to the Chinese
law.
So even if the Chinese government won't be active in
enforcing its own regulations, there's no reason that U.S.
companies can't insist that the people that they buy goods and
services from are living up to the letter of Chinese law.
Chair Merkley. Well, Mr. Halegua, there's no reason not to
expect U.S. companies to abide by the same standards they might
operate under in the U.S. But the question is, are they? Are
there examples of U.S. companies that have instituted very
strong programs, that fire individuals who harass others within
their companies, that really make a point of putting talented
women into positions of responsibility?
Or are we finding that the U.S. companies feel that this is
disruptive to the cultural dominance of men or disturbing to
their Chinese partners? Where are they coming out in this
balance? Are U.S. companies leading the way, or are they
holding back?
Mr. Halegua. I think my knowledge of it is somewhat
anecdotal and mostly from - you know, we've definitely seen
cases of--I know McDonald's had a pretty well-publicized case
of taking action against someone who engaged in sexual
harassment.
You know, lawyers whom I talk to that work with U.S.
companies operating in China seem to say that they are doing
better than most of their Chinese counterparts because of the
experience that they have in the United States, and I think
that they actually find it difficult. You know, if you are
going to have global policies for a company, it would be hard
to sort of carve out China and make a different set of rules.
And so I think that while it's hard to generalize, you do see a
lot of companies that are performing better in these areas.
Chair Merkley. Dr. Fincher.
Ms. Fincher. Well, this isn't really something that I pay
close attention to. But just based on my experience in China, I
would say that a lot of American companies just want to play by
Chinese rules. And so you have the Foreign Corrupt Practices
Act. Even that may not be followed, in many cases.
But this is a real problem because there is, for example,
this widespread culture of business drinking where it is quite
routine to bring young women and to ply them with alcohol, and
there have been many cases where these young women are then
raped and the rapists just get away with it, and I believe that
the cases that we know about are Chinese companies or maybe
lower level Chinese government officials, or in the case of
Peng Shuai, she actually accused one of the most powerful men
in China of sexually assaulting her.
But I would believe, based on all of the other research
that I've done, that this kind of thing happens a lot more than
we hear about, and I know that there are some American
companies that do not do as much as they should to protect the
rights of women even within their own companies because they're
protecting their own reputation, their own brand.
Chair Merkley. Thank you. I think it's just important for
us to keep raising this issue of what U.S. companies can do in
a proactive way.
And, finally, I want to turn, Dr. Fincher, to your
testimony and just put a spotlight on it, that the Chinese
government is encouraging births among the Han Chinese at the
same time that it is engaging in policies that are seeking to
stop Uyghur and other minorities from having children--through
sterilization, through reeducation camps, through forced labor
camps, and so forth.
Is there any other way to describe this than as racist
eugenics?
Ms. Fincher. Well, thank you for your question, Chairman
Merkley.
This is, certainly, the practice of eugenics and genocide
if you define genocide, in part, as a deliberate attempt to
reduce births of a certain ethnic minority and to separate the
children of that ethnic minority, because that is also
happening. The children of Uyghur and other Turkic Muslims are
being separated from their parents.
Something that hasn't come up in this hearing is also this
strong coercive element of inter-ethnic marriages where Uyghur
women are pushed to marry Han Chinese men. There are a lot of
benefits offered to inter-ethnic couples and that, in my view,
is also a deliberate attempt to kind of also dilute the Uyghur
population.
And on the flip side, it's all part of the Chinese
government's attempt to engineer a particular ``high-quality
population.'' So it's not just about falling birth rates
overall because the Chinese government wants birth rates to
fall and it is making them fall among the Uyghur, Kazakh, and
other Turkic Muslim populations.
There's so much evidence proving the mass campaigns of
forced sterilization among these populations, and it is just a
stark turnaround in population-planning policy that the Chinese
government went from this draconian one-child policy to now a
three-child policy.
So far, we don't see extremely coercive elements of this
three-child policy. But I am concerned, as Ms. Fong mentioned,
that it is much more difficult for men to obtain vasectomies. I
am concerned about, perhaps, a nationwide effort to restrict
abortion access for women--Han Chinese women--to try to force
them or coerce them into having more children when they don't
want those children, and it is all related to the government's
view that women are reproductive tools of the Chinese state;
they are agents of the Chinese government's development goals.
And so in the past, the goal was to limit births and so
there were forced sterilizations, forced abortions, among
millions and millions of Han Chinese women, and now those very
coercive practices are limited primarily to Uyghur and Turkic
populations and it's the opposite--very pro-natalist for the
Han Chinese population.
And by the way, the Chinese feminist activists are almost
all from this cohort of Han Chinese very educated women. And if
I may add, this is another reason that the Chinese government
perceives the feminist movement to be such a threat--how do
they get rid of this movement. It would be very difficult for
them to just jail all of the feminist activists because at the
same time, the government is trying to cajole Han Chinese
college-educated women into getting married and having more
children. And so this is one of the key reasons that the
feminist movement is so very complicated for the Chinese
government to deal with.
Chair Merkley. Thank you. And you did raise a point that I
had not heard before about incentives for Uyghur women to marry
Han men. What kind of incentives are you talking about?
Ms. Fincher. Well, there are bonuses--for example, housing
benefits, even cash bonuses offered to couples that are
marrying where one member of the marriage is Han Chinese and
the other is ethnic Uyghur, and it's a longstanding effort.
It's been going on for several years. And then the children in
that marriage would be raised according to Han Chinese customs.
Chair Merkley. Thank you very much, and thank you to each
and every one of you for your testimony today shining a light
on these incredibly important issues regarding the treatment of
women in China and, more broadly, practices that need to be
illuminated and understood by the world. Hopefully, in drawing
attention to them we create a process where more is done to
counter these policies and end these practices. So your voices
are very important in moving members of Congress and the world
to address these issues.
We will keep the record open until the close of business on
Friday, March 4th, for any items that members would like to
submit for the record or if they have additional questions that
they would like to ask our witnesses.
And with that, our hearing is adjourned.
[Whereupon, at 12:00 p.m., the hearing was concluded.]
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A P P E N D I X
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Prepared Statements
------
Prepared Statement of Leta Hong Fincher
Chairman Merkley, Chairman McGovern and distinguished members of
the Commission, thank you for holding this important hearing and
inviting me to testify. My testimony draws from the research I
conducted for my two books on women's rights in China.
While the entire world watches Russia's horrifying invasion of
Ukraine, the Chinese government so far refuses to call Russia's actions
an invasion.\1\ President Xi Jinping appears to be aligning himself
with the strongman Vladimir Putin, further undermining the rules-based
international order.\2\
There are many reasons that China's Communist regime has survived
for over seventy years, in spite of the collapse of communism in the
Soviet Union and Eastern Europe. But it is impossible to understand the
longevity of China's Communist Party without recognizing the
patriarchal underpinnings of its authoritarianism. In short, Xi Jinping
views patriarchal authoritarianism and the subjugation of women as
critical for the survival of the Communist Party.\3\
China's economy has entered a protracted slowdown just as the
country is beginning to face the demographic crisis of an aging
population, falling birth rates and a shrinking workforce.\4\ In
response, the government has revived sexist elements of Confucianism,
upholding the male-dominated family as the basic foundation of a strong
nation.\5\ State propaganda praises Mr. Xi's traditional ``family
values'' (jia feng) and presents him as the father of the Chinese
nation in a ``family-state under heaven'' (jia guo tian xia), in which
obedient wives and mothers in the home are key to solving China's most
pressing social problems.\6\
China's propaganda apparatus began a crash campaign in 2007 to
stigmatize single, educated, Han Chinese women in their late twenties,
mocking them as ``leftover'' women (sheng nu) to push them into
marrying and having babies for the good of the nation.\7\ This pro-
marriage, pro-natalist propaganda has only become more intense with the
adoption of a two-child policy in 2016, and the three-child policy last
summer. China's population-planning policies also have a strong
undertone of eugenics.\8\
Even as officials urge Han Chinese women to marry and get pregnant
in order to ``upgrade population quality'' (tigao renkou suzhi--a goal
highlighted again in the three-child policy announcement),\9\ they are
slashing birth rates among ethnic minority women, in particular Uyghur
and other Turkic women in Xinjiang, with forced sterilizations and
abortions.\10\
The government is carrying out a sweeping crackdown on feminist
activists, who pose a unique challenge to China's all-male rulers. As a
result, the #MeToo movement against sexual violence has been the target
of aggressive censorship. Take the heavy-handed reaction to Chinese
tennis star Peng Shuai's Weibo post last November 2, accusing China's
former vice premier Zhang Gaoli of sexual assault. Peng Shuai's post
was deleted within half an hour and she herself disappeared for weeks,
only to reemerge in a series of undoubtedly coerced appearances
coinciding with Beijing's Winter Olympics.\11\
We are about to mark the seventh anniversary of the Chinese
government's jailing of five women's rights activists in March 2015,
for planning to commemorate International Women's Day by handing out
stickers against sexual harassment on subways and buses. Since then,
feminist activists have tapped into the broad discontent felt by
Chinese women and developed a level of influence that is highly unusual
for any social movement in China since 1989.\12\
Even though the government persecutes activists, shuts down women's
rights and LGBTQ rights centers,\13\ and censors feminist social media
content, China's feminist networks have actually grown in recent years
instead of being wiped out.\14\
The shrinking space for civil society in China makes it even more
extraordinary that a feminist movement is able to survive at all. While
prominent male human-rights activists have emerged over the years, very
few Chinese citizens knew about them or could relate to their abstract
goals. By contrast, feminist activists today take up causes that have
broad resonance with young women and LGBTQ people across China: issues
such as sexual violence, intimate partner violence, and gender
discrimination.
China is an autocracy with no press freedom, no internet freedom or
freedom of assembly, and effectively no rule of law. Yet when feminist
activists organize around issues that affect the personal lives of
millions of ordinary women, even the all-powerful, male-dominated
Chinese Communist Party struggles to quash the movement.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Aaron Halegua
Chairman Merkley, Co-Chair McGovern, and members of the Commission:
Good morning, and thank you for the opportunity to testify before
you on this important topic. My name is Aaron Halegua. I am a lawyer
based in New York City as well as a research fellow at NYU Law School's
U.S.-Asia Law Institute and Center for Labor and Employment Law.
I have studied Chinese labor issues, including discrimination and
sexual harassment, for nearly 20 years. This work has included
interactions with Chinese judges, academics, lawyers, advocates, and
workers about these subjects. In the summer of 2021, I published the
report Workplace Gender-Based Harassment and Violence in China:
Harmonizing Domestic Law and Practice with International Standards. The
study describes the current state of Chinese law and practice in this
area based on a number of sources, including my research team's review
of over 100 Chinese court decisions that mentioned the term ``sexual
harassment.'' The report also makes recommendations for the Chinese
government, Chinese employers, and global brands on how to better
comply with the International Labor Organization's Convention
Concerning the Elimination of Violence and Harassment in the World of
Work (No. 190), adopted in 2019, which seeks to create a ``zero
tolerance'' environment towards gender-based harassment and violence
for all working people. I encourage you to review the Executive Summary
of the report and Recommendations to Expedite Convention 190 in China,
which appear under Submissions for the Record. Today, I will share a
few observations from my research and developments since that time.
China has ratified international instruments concerning the
protection of women's rights and the elimination of gender
discrimination. China has already ratified several United Nations and
ILO instruments obligating it to ensure women's rights and eliminate
discrimination, including: the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) in
1980; the ILO Convention on Equal Remuneration (No. 100) in 1990; the
ILO Convention on Discrimination (Employment and Occupation) (No. 111)
in 2006; and the International Covenant on Economic, Social and
Cultural Rights (CESCR) in 2001. In 1995, China hosted the United
Nations' Fourth World Conference on Women--a significant moment for
China to reaffirm its commitment to achieving gender equality and the
empowerment of women. The meeting adopted declarations recognizing the
prevalence of gender-based violence and sexual harassment in the
workplace and called upon governments, employers, unions, and other
stakeholders to address these problems. China also largely supported
the adoption of ILO Convention 190, agreeing that a convention was
preferable to a non-binding resolution and backing the instrument's
mission of promoting a ``zero tolerance'' environment for not just
``workers'' but all ``persons'' in the world of work. However, since
the ILO adopted Convention 190 in 2019, it has not yet been ratified by
China.
China continues to improve its legislation aimed at combating
sexual harassment in the workplace, but there remains room for
improvement. The first instance of China prohibiting sexual harassment
against women in its national legislation was the 2005 amendments to
the Law on the Protection of Women's Rights and Interests, giving
victims the right to sue harassers and complain to their employers and
government organs. (This statute will be amended again soon.) In 2012,
the State Council's Special Regulation on the Labor Protection of
Female Employees required employers to ``prevent and prohibit'' sexual
harassment in the workplace. These measures were a notable first step
in building a legal framework, but still left much room for
improvement, as explained in my report. Amongst other issues, no clear
legal liability was established for employers who failed to prevent and
prohibit harassment at work.
While there was some legislative activity at the local level after
2012, the next major national developments only came after the #MeToo
movement. In 2018, China's judiciary established sexual harassment as
an explicit ``cause of action''--that is, a ground upon which a party
could bring a lawsuit. In 2020, China adopted a new Civil Code, which
has a provision (Article 1010) on sexual harassment that further
defines the term to include not only physical contact but also
unwelcome verbal comments, written messages, or images; establishes
liability for perpetrators of sexual harassment; and requires employers
to adopt measures to investigate, prevent, and stop workplace sexual
harassment. However, one notable shortcoming is that the Civil Code
still does not clearly establish liability for employers who fail to do
so. Nonetheless, at a minimum, adoption of the new provision does
signal the central government's recognition of the problem of sexual
harassment and some level of commitment to addressing the issue.
Moreover, in the short time since the promulgation of the Civil Code,
some localities, like the municipality of Shenzhen, have issued far
more detailed and quite impressive guidance (albeit nonbinding) on how
to effectuate the spirt of the new legislative provision.
Of course, the next question is: to what extent and in what ways
are these legislative provisions actually implemented? And, do they
provide any meaningful protection for Chinese workers?
Chinese employers have demonstrated a willingness to discipline
perpetrators of sexual harassment. Although legislation directing
Chinese employers to prevent sexual harassment has existed for a
decade, several studies reported that few companies had actually
adopted policies prohibiting sexual harassment, let alone procedures to
lodge, investigate, and resolve complaints. Therefore, one of the more
interesting findings from my review of Chinese judicial decisions was
that the largest group of cases did not involve victims suing
harassers, but rather individuals suing their former employers after
being fired for allegedly engaging in sexual harassment. In China,
employees may only be terminated after clearly violating an established
work rule, which it is the employer's burden to demonstrate; otherwise,
the improperly terminated employee must be paid compensation. In fact,
my analysis revealed that the disciplined employee actually wins in the
majority of these unjust dismissal claims because the employer is
unable to meet its burden of proving that the harassment occurred. But
there is a silver lining to this finding: it means that Chinese
employers are willing to fire these individuals accused of sexual
harassment and stand by their decision, even if it means that they will
need to pay compensation to these individuals.
Victims of sexual harassment still face significant obstacles in
obtaining legal remedies. Both my own research and that of other
scholars confirms that very few victims of sexual harassment are filing
lawsuits against the perpetrators. One study by a team at Yale Law
School identified 83 sexual harassment cases decided from 2018 to 2020
and found that only six of them involved victims suing their harassers.
Moreover, of that small group, only a handful have prevailed in court,
and those who do win often receive very little, if any, compensation
for their suffering. There are several explanations for this
phenomenon. For instance, one difficulty for victims and courts is the
lack of a clear definition of sexual harassment or the threshold at
which it becomes ``illegal.'' Another particularly significant obstacle
for victims is that Chinese courts will not find that sexual harassment
occurred based on the oral testimony of the victim alone; instead, some
corroborating physical evidence is required. However, given the nature
of sexual harassment claims, and the fact that most perpetrators seek
to ensure that there are no witnesses to or evidence of their
wrongdoing, victims often lack corroborating physical evidence. As for
the remedy, those few victims who prevail in court generally receive
little or no monetary compensation. Indeed, when a Shanghai court
awarded a woman RMB 98,000 (US $15,000) after enduring daily disturbing
text messages from her colleague for a six-month period, commentators
described the compensation as ``unprecedented'' in a sexual harassment
case. These significant obstacles and limited remedies disincentivize
victims from coming forward to file a lawsuit against their harasser or
employer.
Sexual harassment victims who complain often face retaliation or
defamation lawsuits. As in many other countries, workers who complain
about sexual harassment are often retaliated against by their employer,
who may terminate them, force them to resign, or harass them in other
ways. Another common fact pattern is that victims who complain then get
sued for defamation by the alleged harasser, who claims that their
reputation has been ruined: the aforementioned study that identified 83
sexual harassment cases found that 23 were defamation cases against the
victim. One female worker who published an online account of being
invited to her supervisor's hotel room, where he forcibly kissed,
groped and undressed her, was later ordered by a court to pay RMB
11,712 (roughly US $1,800) for the supervisor's hurt feelings and his
litigation expenses. The defamation lawsuit filed against Xianzi by the
television host she accused of harassing her during an internship at
CCTV is another paradigmatic example. Survey data already suggests that
only a small fraction of sexually harassed victims ever come forward
and complain. If there continues to be little to gain from filing a
complaint, but a great deal to lose, it is unlikely that more victims
will be willing to come forward.
China's government, employers, and worker organizations should take
further steps towards creating a ``zero tolerance'' environment for
sexual harassment. My report recommends steps that stakeholders within
China can take to combat sexual harassment and get closer to achieving
the standards of ILO Convention 190. For instance, the Chinese
government should explicitly make employers liable for failing to
prevent or address sexual harassment, revise evidentiary rules for
sexual harassment cases, and protect victims from defamation claims and
other retaliation. Chinese employers should establish procedures to
investigate and resolve complaints, and global brands should ensure
Chinese partners have such mechanisms in place. The U.S. government
should commend China for the steps that it has taken thus far, but
encourage it to do more to harmonize its domestic law and practice with
the most recent international standards.
Thank you all for your time. I look forward to answering any
questions that you have.
______
Prepared Statement of Mei Fong
Chairman McGovern, Chairman Merkley, thanks to the Congressional-
Executive Commission on China for this timely hearing ahead of
International Women's Day. I appreciate this opportunity to testify on
the impact of China's population planning policies, and the effect it
has had on the women of China and beyond.
The one-child policy began in 1980 and shaped China's population
for over three decades, before it was replaced in rapid succession with
the two-child policy in 2016, and the three-child policy in 2021.
This sudden about-face from ``Have Just One Child'' to ``Have One
More Child'' is an attempt to redress the consequences of a ruinous and
inhumane policy that was also economically shortsighted. China's birth
rate has now plunged to its lowest in 70 years, curbing future growth
prospects and leading to a variety of social ills.
The one-child policy has also created a hugely imbalanced
population. There are now about 30 million single men in China and more
Chinese retirees than the population of Western Europe. With a
shrinking workforce, China is already facing pension shortfalls--
currently $540 billion, according to China's Academy of Social Science.
While working as a Wall Street Journal correspondent, and
researching my book, I heard many stories about the one-child policy's
chilling effect. I spoke with women forced to have abortions as late as
seven months into their pregnancy; officials describing how they
cornered and chased pregnant women like prey, and mothers who recounted
heartbreaking acts of abandonment and infanticide.
Now the Chinese state's switch to purportedly pro-natal policies
has inflicted new wounds on women.
Since the introduction of the two-child policy, Human Rights Watch
has documented a rise in pregnancy-related discrimination against women
in the workplace. Employers now fear that women can potentially take
two and now three maternity leaves, not just one as in the one-child
era. Some companies have sought to avoid this through job ads,
interviews and workplace treatment that discriminate against women with
no children, or just one child--or simply discriminate against all
women. Women have been fired for getting pregnant, or have been asked
to sign agreements pledging not to have children. While such practices
are illegal under Chinese law, enforcement is lax and the avenues for
redress and compensation so few that such practices remain largely
unchecked.
Elsewhere, Beijing's early approach to a demographic decline
appears to be more stick than carrot, with growing curbs on divorce and
abortion--both human rights abuses.
Last month, the government-backed China Family-Planning Association
said it would reduce unplanned pregnancies and abortions among
adolescents and single women. This follows tightened overall
restrictions on abortions in 2018--with increased bureaucratic measures
for those seeking these services. Several media reports have also
reported on a clampdown on vasectomies.
Authorities have said these moves are motivated by welfare concerns
but such explanations have been met with suspicion and in some cases
derision on Chinese internet, given the state's long history of
coercive practices on birth matters. It is important to note that these
still continue for many Uyghurs in China, with forced sterilizations on
women held in ``political reeducation'' camps. In 2017, a phrase began
to crop up in government documents related to family planning in
Xinjiang: ``severely attack behaviors that violate family planning.''
Last but certainly not least--it is not only the women of China who
have borne the brunt of Beijing's coercive population planning
practices. The one-child policy caused a shortage of women and hence, a
surge in bride trafficking in China, as well as from so-called source
countries across the region including Myanmar, North Korea, Cambodia,
and Pakistan. Human Rights Watch has documented how hundreds of women
and girls in Myanmar are sold to Chinese families as brides for
US$3,000-$13,000 and held in sexual slavery for years, with some women
trafficked more than once. Once purchased, they are held in sexual
slavery and pressured to produce babies as quickly as possible.
Given this situation, Human Rights Watch offers the following
recommendations:
Chinese authorities should fully enforce legal
prohibitions against gender and pregnancy-based discrimination in
employment.
The Chinese government should fully respect reproductive
rights--and stop regulating the number of children families are allowed
to have, stop pressuring women to have children, provide free access to
safe and legal abortion and contraception, and ensure equitable
caregiver leave policies.
The Chinese government should make it a priority to halt
both internal and transnational trafficking of women and girls for sale
as brides in China, through prevention and enforcement efforts and
providing services to survivors and those at risk, in collaboration
with source countries in the region.
The U.S. Government should call on the Chinese government
to lift all restrictions on reproductive rights, urge allies and
partners to do the same, and to do more to end human trafficking of
women and girls.
U.S. companies doing business in China should ensure they
are not engaged in or partnering with companies that engage in
discriminatory employment practices.
The U.S. should assist countries that have become source
countries for ``bride trafficking'' to China with technical assistance
and resources to work to end this abuse.
______
Prepared Statement of Tursunay Ziyawudun
Thank you, Chair Merkley, and thank you Co-chair McGovern, for
holding this hearing. I am very grateful for the opportunity to testify
before the U.S. Congress and to tell the world about my experience and
the experience of Uyghur women.
My name is Tursunay Ziyawudun. I am from Kunes county, East
Turkistan.
Although it is exceedingly painful and difficult for me to speak
about my experiences, I see it as my duty to be the voice for those
people who are in the camps built by the Chinese government, those who
died in front of my own eyes, and those who are being held unjustly in
prison.
I was locked up in camps two different times. The mental and
physical torture I experienced in these camps have left indelible scars
on my heart.
I was taken into a camp for the second time in March 2018 and
stayed there for close to one year. There were many new buildings in
the camp compared with the first time I was taken. They called it
``education,'' but in reality it was a high-security prison, with high
walls, security cameras and armed guards everywhere.
What they called ``education'' was spending many hours watching
propaganda films, memorizing Chinese law, and memorizing Chinese
``red'' songs praising the Chinese Communist Party. We were made to
swear oaths of loyalty to the Chinese Communist Party, over and over
again.
In the camp, we always lived in fear. We feared that we would be
punished if we could not memorize the lessons correctly. Every day we
heard screaming and crying voices from other cells, wondering whether
what was happening to others would happen to us, too.
Then it happened to me. Several times, the guards took me out of
the cell and into an interrogation room, and they beat me. They used
whatever oppressive methods they wanted.
Once, they took me out in the middle of the night, along with a
young woman in her 20s. Next to the camp police officers wearing
uniforms, there was a man in a suit, wearing a mask over his mouth. I
don't know where he came from. These men raped the young woman. Three
police officers raped me as well.
They were always taking girls out of the cells like this. They did
whatever they wanted. Sometimes they brought some of the women back
near the point of death. Some of the women disappeared. I saw some of
them bleed to death with my own eyes. Some of them lost their minds in
the camp.
Every time I think about these things, my heart feels as though
it's been sliced with a dagger. My nightmares make me feel as though
I'm living in that fear once again. My physical body is free, and so is
my voice, but I am suffering deeply. I am only beginning to overcome
this suffering by telling my story.
I have to speak out, because the things I experienced in the camps
are happening to Uyghur, Kazakh, and other Turkic women across our
entire homeland. Millions of Uyghurs are suffering under this genocide
for the past five years, since 2017. We appeal for help from you and
from all of humanity.
I know that all of the CECC Commissioners are speaking out for
Uyghur women. We are grateful to Congresswoman Wexton for advocating
for Ms. Gulmira Imin, a young Uyhgur woman serving a long prison
sentence. We are very grateful for the Resolution condemning the
genocide that was passed in December 2021. We are very grateful for the
Uyghur forced labor bill that became law also in December.
I ask you to do more. I came to the United States with the help of
the U.S. Government and the Uyghur Human Rights Project, and since
arriving here I have finally had the chance to tell my whole story. It
is only after coming to the United States, which has allowed me to feel
real freedom, that I have been brave enough to tell my whole story,
especially about the sexual assault suffered by me and many other
women.
Please do more to accept Uyghur refugees to the United States.
There are many more people like me who managed to escape China, but
they are not able to tell their stories. They are living in neighboring
countries, but they are still living in fear. They are afraid that the
Chinese government can pressure the authorities there to deport them to
China at any time. They receive threats, they are suffering great
trauma as torture survivors and survivors of sexual assault.
Many families are still separated from their husband or wife, their
children, their parents. I was rescued, but so many more people like me
also need to be admitted to the U.S. where they are safe.
I also hope that the Congress can do more to make sure that Uyghur
torture survivors can get medical care and counseling. I am still not
free of my nightmares, the mental anguish of my experience, and my mind
is constantly imagining the suffering of so many others who are still
experiencing the same fate. Camp survivors like me need help for our
extreme trauma, and other Uyghur Americans are also suffering terrible
mental trauma because of the suffering of their daughters, sons,
sisters, brothers, parents and grandparents. I hope the Congress will
do more to help genocide victims, especially women, to get professional
support to recover our health, and survive our past and present trauma.
Finally, I want to ask that the Congress support Radio Free Asia to
do more programs on women, and for women. I listen to the Uyghur
service every day, and I believe we need even more news reporting to
expose the atrocities that women are suffering in the Uyghur Region. We
also need more informational and educational programs on how Uyghur
women can survive the mental torment that we suffer every day. More
stories about the accomplishments and achievements of strong Uyghur and
Kazakh women can help to give us inspiration and give us hope for the
future.
Thank you again for the opportunity to testify.
______
Prepared Statement of Senator Merkley
Good morning. Today's hearing of the Congressional-Executive
Commission on China on ``The Future of Women in China: #MeToo,
Censorship and Gender Inequality'' will come to order.
One week from today, the world will mark International Women's Day.
This is an occasion not only to celebrate the critical role women and
girls play in families, communities, and societies across the globe but
to also reflect on how those societies can better protect the
fundamental human rights of women and girls. Governments that fail to
treat women equally prevent their countries from reaching their full
potential. Those that empower women in political, social, and economic
life are more prosperous and peaceful. Over 70 years ago, Mao Zedong
acknowledged the importance of women in Chinese society with his famous
statement that ``women hold up half the sky.''
Yet, as this Commission fulfills its mandate to monitor human
rights in China, we continue to find a mixed picture when it comes to
the status of women. While the Chinese government implements laws and
regulations intended to address persistent issues related to gender-
based violence, discrimination, and harassment, women face significant
challenges in all of these areas.
In recent months, several high-profile cases shined a bright
spotlight on the vulnerability of women to violence. In November,
tennis star Peng Shuai accused a senior Chinese Communist Party
official of sexual assault. In January, a video appeared showing a
rural woman--reportedly the mother of eight--chained by her neck in an
outdoor shed, sparking serious concerns about human trafficking, the
impact of policies of population control, and the treatment of persons
with mental disorders. These stories come on the heels of other cases
of domestic violence and workplace harassment that reinvigorated the
#MeToo movement, as well as horrifying reports of rape committed
against Uyghur women in intrusive homestay programs and mass internment
camps. A brave survivor of these camps will tell her story to us today.
While many of these reports generated intense interest within
China, the Chinese Communist Party worked to suppress them and stifle
expression related to women's rights, just as it
constricts freedom of expression and civil society more broadly.
It's been seven years since China jailed five female activists for
publicizing sexual harassment on public transportation, and feminists--
that is, advocates for improving the condition of women in China--
continue to be denied the space to speak up or to organize, as
demonstrated by the coordination of online attacks and the shutdown of
feminist social media accounts last spring.
In political life, women are excluded from positions of power, with
not a single woman serving on the Politburo Standing Committee and only
one woman serving on the 25-member Politburo and few women serving at
senior levels of county, municipal, or provincial governments.
Many of the most egregious abuses deny the fundamental freedom for
families to decide if, when, and how to have children. Forced
sterilizations and forced abortions, such as those prompted for years
by the one child policy and those reported in recent years by the
Uyghurs and other Turkic Muslims, are atrocities. The move to a three
child policy raises the specter of new coercive tools and tactics
denying freedom.
This all adds up to a complex landscape for women's rights in
China, deserving of close scrutiny through today's hearing. This is the
first time the Congressional-Executive Commission on China has held a
hearing dedicated to this set of issues and it shouldn't be the last. I
look forward to our witnesses helping us understand ways we can better
stand up for women in China.
______
Prepared Statement of Representative McGovern
Thank you, Mr. Chairman, for holding this hearing entitled the
Future of Women in China, #MeToo, Censorship and Gender Inequality.
I am proud that this is the Commission's first-ever hearing
specifically on the status of women. It is timely, given the spotlight
on the Peng Shuai case of sexual assault and coverup, and changes in
the Party's policy on gender.
Since 2005, the Commission has included a stand-alone section named
Status of Women in its annual report. That initial section found that
while the Chinese Constitution and laws provide for equal rights of
women, in reality they have fewer employment opportunities than men,
and their educational levels fall below those of men.
Today we find this dynamic much the same. The Chinese government
continues to implement laws and regulations aimed at equality. For
example, in January 2021, a specific definition of sexual harassment
was codified in the Civil Code, creating liability for employers and
detailing the kinds of conduct that would fall under the definition of
sexual harassment.
But in their everyday experience, women continue to face
discrimination in employment, education, wages, and legal redress. Last
September, authorities detained Sophie Huang Xueqin and Wang Jianbing,
advocates of China's #MeToo movement, under the charge of ``incitement
of subversion of state power.'' Why in the world would advocating for
women's rights be considered a crime against the state?
Repression of women has also been documented in the Commission's
Population Control section, on the Chinese government's heavy-handed
policies to limit births, including the human rights abuses of forced
abortion and forced sterilization. We have monitored these horrific
practices as part of the government's campaign against Uyghurs and
other Turkic Muslim women. We will hear testimony from a survivor
today.
For others in the People's Republic of China, however, these
population policies are evolving, as authorities respond to the social
and economic consequences of demographic changes. We would like to know
where these policies are headed and whether Chinese authorities' heavy-
handed approach will manifest itself in a different way.
I welcome our witnesses and thank Chairman Merkley for organizing
this hearing, which is long overdue. I look forward to your testimony.
Submissions for the Record
------
(Excerpt from the New York Times, December 2, 2021]
Why Peng Shuai Has China's Leaders Spooked
(By Leta Hong Fincher)
Things have only worsened under President Xi Jinping, architect of
a state-run masculinity campaign.
Women are severely underrepresented in national politics: There is
one woman on the 25-member Politburo. Female representation on the 204-
member Central Committee, the largest of the party's political bodies,
has declined over the past decade, to 10 currently from 13 in 2012.
Broader gender inequality also has worsened. Women's labor-force
participation has fallen to 60.5 percent in 2019 from 73 percent in
1990, according to the World Bank. China is in the bottom third of all
countries evaluated for their gender disparities, according to the
World Economic Forum.
The grim prospects for Chinese women are particularly jarring given
the prominent role of feminism in China's revolutionary history.
Women's emancipation was a central goal not just for activists in the
May Fourth movement of 1919 but throughout the Communist revolution,
culminating in the founding of the People's Republic of China in 1949.
China's ruler Mao Zedong famously proclaimed that ``women hold up
half the sky.'' Propaganda images in the 1950s and '60s showed smiling,
muscular female welders and factory workers laboring to boost
industrial production.
But today's Communist Party appears to want women to be obedient
wives and mothers. In his International Women's Day address this year,
Mr. Xi barely mentioned working women's contributions to economic
development.
https://www.nytimes.com/2021/12/02/opinion/peng-shuai-china-
leaders.html
______
[Reprinted from Open Democracy.net, June 21, 2021]
Are Countries Fulfilling the Promise of the
Violence and Harassment Convention?
(By Aaron Halegua and Shikha Silliman Bhattacharjee)
On this day in 2019, labour, feminist, and human rights allies
celebrated the International Labour Organization's (ILO) adoption of
the Violence and Harassment Convention (No. 190). This landmark
international standard called upon member states to adopt measures to
prevent and eliminate workplace violence and harassment, particularly
workplace gender-based violence and harassment (GBVH). While this legal
standard was being negotiated, women across the globe spoke out against
sexual violence and harassment at work in unprecedented numbers,
linking their individual victimisation to the collective experience of
persistent GBVH in their workplaces and society simultaneously brought
to the forefront by the #MeToo movement.
Zhou Xiaoxuan (or Xianzi) is one of the millions who spoke out. In
2014, Xianzi was sexually harassed by a famous television host during a
college internship at China Central Television. When she reported the
incident to the police, they persuaded her not to pursue the claim,
implying it would harm both her parents' careers and Xianzi's
reputation. Four years later, inspired by other women sharing their
stories, Xianzi posted her account of the incident online.
Instead of receiving an apology, Xianzi was sued in 2018 for
defamation. When she counter-sued for sexual harassment, the court
rejected her claim. Further hearings were scheduled in May, but were
abruptly adjourned without explanation. This high-profile legal battle
has generated considerable public interest, especially from a growing
feminist movement and young Chinese women--some of whom demonstrated
outside the courthouse on the day of Xianzi's hearing. Experts believe
that this public attention has made the Chinese government very
cautious in handling the case, explaining the long delays.
Two years after the adoption of Convention 190, what progress have
member states made in complying with its mandates? Six countries,
including Namibia, Argentina, and Somalia, have ratified the convention
and given it legal effect in their domestic system. Robust ratification
campaigns are ongoing in places like South Africa and Zambia, supported
by diverse groups like the International Trade Union Confederation and
International Domestic Workers Federation, and more than ten countries
have signalled their intention to ratify. In other countries,
Convention 190 has inspired national conversations about the gaps in
existing laws and power-based barriers to access to justice. What's
more, through powerful campaigns like the Global Fight for 15 at
McDonalds, IUF's Global Campaign against sexual harassment at Marriott,
and Justice for Jeyasre, women workers and their unions are not waiting
for ratification, but directly engaging with brands and employers to
eliminate GBVH from their workplaces.
the struggle to end gbvh at work in china
A new report by Global Labor Justice-International Labor Rights
Forum (GLJ-ILRF) and NYU's U.S.-Asia Law Institute examines the case of
China, evaluating how its domestic laws and practices stack up against
the international standard. On the one hand, during the negotiations
China endorsed the adoption of a binding legal instrument (rather than
a non-binding resolution) and the convention's mission of promoting a
`zero tolerance' environment towards GBVH. While it has not yet
ratified the convention, China did introduce a new legal provision in
2020 that explicitly created liability for perpetrators of sexual
harassment and obligated em- ployers to adopt measures to investigate,
prevent, and stop sexual harassment in the workplace.
But as Xianzi's case demonstrates, sexual harassment persists in
Chinese work- places and victims face real challenges in asserting
their rights. Chinese media coverage of sexual harassment complaints
remains limited, and government authorities clamped down further on
such reporting after the #MeToo movement began gaining some traction.
In order to better understand the types of GBVH occurring in the
Chinese workplace and how those incidents are handled, the report
reviews over 100 civil case judgments from a database of Chinese court
decisions. The cases revealed a wide range of GBVH in Chinese
workplaces, including lewd comments and jokes, harassing messages,
unwelcome touching, invitations to subordinates to have sex, and
forcing viewing of pornography.
However, very few GBVH victims sought redress through the Chinese
courts. Most cases involved alleged harassers suing their employer to
challenge their termination--a positive indication that some employers
take GBVH complaints seriously. Those few victims who did sue rarely
prevailed because of the high burden of proof on plaintiffs and the
requirement that the victim's oral testimony must be corroborated by
physical evidence. Even those who `won' were awarded either no damages
or only a paltry sum. Instead, victims who complained often faced
retaliation by the employer or, like Xianzi, a defamation lawsuit by
the harasser.
Recognising some of these challenges, China--like Uruguay, Denmark,
and others--keeps moving towards harmonising its domestic law and
practice with Convention 190's mandates. Three months ago, the
municipality of Shenzhen issued a detailed guideline that further
defines sexual harassment, specifies the policies and procedures that
employers should implement, prescribes penalties for harassers, and
bans retaliation.
The report encourages China to continue down this path. Based on
the empirical research performed, the report offers concrete
recommendations to the Chinese government, employers, workers'
organisations, and global brands to, for instance, make the legal
definition of prohibited conduct coextensive with Convention 190;
establish clear liability and penalties for employers; strengthen
government monitoring and enforcement; and prohibit retaliation. Our
intention is that this report serves as a resource to these actors in
promoting compliance with the text and spirit of Convention 190.
https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/are-
countries-
fulfilling-promise-violence-and-harassment-convention/
Workplace Gender-based Violence and Harassment in China
2021 Aaron Halegua
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About Us
Global Labor Justice-International Labor Rights Forum (GLJ-ILRF) is
a newly merged organization bringing strategic capacity to cross-
sectoral work on global value chains and labor migration corridors.
GLJ-ILRF holds global corporations accountable for labor rights
violations in their supply chains; advances policies and laws that
protect decent work and just migration; and strengthens freedom of
association, new forms of bargaining, and worker organizations.
The U.S.-Asia Law Institute (USALI) of the NYU School of Law seeks
to promote the rule of law and human rights in Asia. The Institute,
which is funded by institutional and individual grants, serves as a
resource and partner to various Asian countries as they develop their
legal systems. USALI is especially known as one of America's preeminent
research centers for the study of law in Mainland China and Taiwan and
works to improve popular, professional and scholarly understanding at
home and abroad through its publications and exchanges concerning
comparative and international law. More information is available at:
http://usali.org.
Aaron Halegua is a practicing lawyer and consultant. He is also a
research fellow at the NYU School of Law's U.S.-Asia Law Institute and
its Center for Labor and Employment Law. His expertise includes labor
and employment law, human trafficking and forced labor, litigation and
dispute resolution, corporate social responsibility and supply chains,
and legal aid in the United States, China, and elsewhere. In over
fifteen years of working on Chinese labor issues, he has consulted for
Apple, American Bar Association, Asia Foundation, Brown University,
Ford Foundation, International Labor Rights Forum, International Labour
Organization, PILNet, Solidarity Center, and SEIU. Mr. Halegua has
spoken on Chinese labor issues throughout the United States, Europe,
and Asia. He has published numerous book chapters, articles, op-eds,
and reports on labor issues, including for the Washington Post, South
China Morning Post, Berkeley Journal of International Law, Hong Kong
Law Journal, Anti-Discrimination Law Review, (Chinese translation
appears in original) Chinese Journal of Comparative Law, and Harvard
Law & Policy Review (Online), and he has been quoted in the New York
Times, Economist, and Wall Street Journal. Aaron has an A.B. from Brown
University and J.D. from Harvard Law School. More information about his
work is available on his website: http://www.aaronhalegua.com.
Acknowledgements
The initial inspiration for this project on Chinese sexual
harassment law was born from the U.S.-Asia Law Institute's program that
brought a group of Chinese scholars and lawyers to New York City for a
study tour about sexual harassment just as the #MeToo movement was
gaining steam. The author learned a tremendous amount from the American
and Chinese experts involved in that project and remains deeply
indebted to them. While the complete list of institutions and
individuals who provided support in the preparation of this report is
too long to recite here, the author nonetheless wishes to thank at
least the following people: Ira Belkin, Shikha Silliman Bhattacharjee,
Cynthia Estlund, Kevin Lin, Darius Longarino, Chao Liu, Xiaonan Liu,
and Katherine Wilhelm. The following individuals provided invaluable
research assistance for this project: Yurui Chen, Nanami Hirata, Jacob
Kessler, Qianfeng Lin, and Yifei Zhang.
TABLE OF CONTENTS
Page
Executive Summary................................................ 44
I. China's Adoption of International and Domestic Legal
Standards on GBVH.............................................. 47
II. GBVH in the Chinese Workplace.............................. 48
III. The Impact and Limits of China's Legal Protections Against
GBVH........................................................... 49
A. Enforcement by Chinese Employers.......................... 51
B. Enforcement by the Chinese Government..................... 51
C. Enforcement Through the Chinese Courts.................... 51
1. Small Number of Cases................................... 51
2. Defining ``Sexual Harassment''.......................... 51
3. Proving Sexual Harassment............................... 52
4. Remedies for Victims.................................... 52
5. Retaliation and Defamation Suits........................ 53
IV. Recommendations............................................ 54
A. Recommendations for the Chinese Government................ 55
1. Improve the Legislative Framework....................... 55
2. Strengthen Government Monitoring and Enforcement........ 59
3. Expand Legal and Other Victim Services.................. 60
B. Recommendations for Chinese Employers..................... 61
1. Establish Employer Policies and Mechanisms to Address
GBVH........................................................... 61
2. Conduct Training and Prevention Initiatives Within the
Workplace...................................................... 62
C. Recommendations for Chinese Workers' Organizations........ 63
1. Engage in Tripartite Dialogue at the National and Local
Levels to Inform Inclusive Approaches to Address GBVH.......... 63
2. Participate in Risk Assessments, and the Design and
Monitoring of GBVH Policies, at the Sector and Workplace Levels 64
3. Provide Context-specific Education and Training to
Workers About Their Rights and How to Enforce Them............. 65
D. Recommendations for Global Brands......................... 65
Endnotes......................................................... 66
Executive Summary
A Chinese assembly-line worker at Foxconn, a supplier of
electronics to global brands like Apple, BlackBerry, Nokia, Nintendo
and PlayStation, described conditions at her factory in 2018:
Loud dirty jokes, ridiculing female colleagues about their
looks and figures, using the excuse of ``giving direction'' to
make unnecessary body contact--this ``sexual harassment
culture'' is prevalent in our factory workshops, and
particularly serious for unmarried female workers. Many of us
have grown accustomed to it. If a woman who is sexually
harassed protests, she is likely to be accused of being ``too
sensitive'' and ``unable to take a joke.'' A lack of
administrative safeguards is also a major reason for rampant
sexual harassment in factory workshops.\1\
In 2014, while still a college intern at China Central
Television (``CCTV''), Zhou Xiaoxuan (who goes by Xianzi) alleged that
she was sexually harassed by the renowned television show host, Zhu
Jun. When she reported the incident to the police, Xianzi was
encouraged not to pursue the complaint.\2\ The police told her to
consider her reputation and the impact this accusation would have on
Chinese society. The police contacted her parents, both government
employees, and told Xianzi that she must consider how pursuing this
case would harm them. It was not until four years later, after reading
the #MeToo stories published online by other women, that Xianzi decided
to do the same. Her story attracted national attention, resulting in
Zhu Jun suing Xianzi for damaging his reputation. Xianzi then counter-
sued Zhu for ``infringement of her right to personality.'' In December
2020, the Beijing court rejected Xianzi's claim, stating that sexual
harassment claims are only actionable in the educational context.\3\
The second hearing, originally scheduled for May 21, 2021, was delayed
without explanation.\4\
When Huang Xueqin, a female journalist, was working at a
Chinese news agency, a senior male reporter and mentor tried to grope
and kiss her in a hotel room. She was only able to escape his advances
by kicking him in the groin and running away. Huang felt she needed to
quit this job, but told her colleagues that the reason was that she
wanted to ``try something new.'' After hearing about the experiences of
other Chinese women, she decided to tell her #MeToo story, which then
inspired more people to come forward. In 2017, Huang conducted a survey
of female journalists on WeChat and found that 80 percent of the
respondents had experienced sexual harassment.\5\
The incidents discussed above provide a glimpse into the widespread
gender-based violence and harassment (``GBVH'') that exists in the
Chinese workplace, as well as the significant forces that keep victims
from complaining about their mistreatment. While China continues to
make progress by issuing laws and regulations denouncing sexual
harassment, much work remains to translate those documents into
meaningful protections for workers.
In June 2019, the International Labour Organization (``ILO'')
adopted the Convention Concerning the Elimination of Violence and
Harassment in the World of Work (``ILO Convention 190''). China largely
supported this global effort, agreeing that a convention was preferable
to a non-binding resolution, and backing both the instrument's mission
of promoting a ``zero tolerance'' environment towards GBVH and its
expansive scope in protecting not just ``workers'' but all ``persons''
affected by GBVH in the world of work.\6\ Domestically, on May 28,
2020, in the wake of the global #MeToo movement, China enacted a Civil
Code in which it adopted the first national-level legal provision
(Article 1010) explicitly creating liability for perpetrators of sexual
harassment and obligating employers to adopt measures to investigate,
prevent, and stop sexual harassment in the workplace.\7\
The new Chinese legal provision took effect on January 1, 2021 and
ILO Convention 190 celebrates its second anniversary on June 21, 2021.
With these complementary and mutually reinforcing international and
national standards in place, this report considers how China can
harmonize its law and practice with ILO Convention 190 standards. A key
step in this direction would be for China to ratify ILO Convention 190.
While that process is ongoing, however, this report considers other
concrete steps that the Chinese government can take to align its
domestic law and practice with the substance of ILO Convention 190, as
well as what Chinese employers, Chinese workers' organizations, and
global brands can do to address GBVH in the Chinese workplace.
Part I of this report details how China, at least on paper, has
committed to fighting GBVH in the workplace. China has adopted certain
international instruments and participated in various fora concerning
women's rights, gender equality, and discrimination. Numerous domestic
laws and regulations also address these areas, including several
explicit provisions on sexual harassment. Nonetheless, as covered in
Part II, GBVH in China, as in all countries, undoubtedly persists.
However, there is little comprehensive data about how GBVH protections
are enforced in China, and GBVH cases are not widely reported in the
Chinese media.
Addressing this evidentiary gap, Part III of this report draws from
a review of over 100 civil cases from the database of judicial
decisions maintained by China's Supreme People's Court (``SPC'') that
mention the term ``sexual harassment,'' including cases since Article
1010 took effect, to provide insight into incidents of GBVH in China
and how they are handled by the legal system. Analysis of these cases
reveals that few GBVH victims seek redress through litigation, and
those who do encounter significant obstacles in realizing the rights
guaranteed under Chinese law. These obstacles include an unclear
definition of sexual harassment, a high burden of proof and an emphasis
on physical evidence, and a reluctance to award meaningful damages.
There is some positive news: the decisions demonstrate that many
employers have disciplined or terminated employees accused of engaging
in GBVH at work. Moreover, employers are willing to take these actions
despite the fact that alleged harassers often file successful legal
claims for unjust dismissal that require the employers to pay them
compensation. As for the victims of workplace GBVH, however, they
rarely receive any significant compensation or meaningful remedy.
Instead, sexual harassment complainants often become the subject of an
adverse employment action by the employer, defamation lawsuit by the
harasser, or other form of retaliation.
Building upon these empirical insights, Part IV of the report
offers a set of recommendations aimed at encouraging China to harmonize
its domestic law and practice with the protections in ILO Convention
190 and international best practices. There are separate
recommendations directed at the Chinese government, Chinese employers,
workers' organizations, and global brands. It is the author's intention
that this report may serve as a resource to these actors in promoting
compliance with the text and spirit of ILO Convention 190.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
I. China's Adoption of International and Domestic
Legal Standards on GBVH
For at least two decades, China's push for gender rights has been
intertwined with a broader international movement. Since the 1980s,
China has adopted numerous international instruments designed to
protect women and female workers. For instance, China ratified the
United Nations Convention on the Elimination of All Forms of
Discrimination Against Women in 1980 as well as the ILO Conventions on
equal pay (Convention 100) and eliminating discrimination in employment
(Convention 111).\8\ In 1995, China hosted the United Nations' Fourth
World Conference on Women--a significant moment for China to reaffirm
its commitment to achieving gender equality and the empowerment of
women. The meeting adopted declarations recognizing the prevalence of
gender-based violence and sexual harassment in the workplace and called
upon governments, employers, unions, and other stakeholders to address
these problems.\9\
China has also supported the most recent international initiative
to develop binding legal standards to end GBVH in the workplace, which
culminated in the adoption of ILO Convention 190 and an accompanying
non-binding Recommendation (No. 206) on how countries should best
implement its provisions. This Convention primarily requires Member
States to adopt measures designed to ensure a ``zero tolerance''
environment for workplace violence and harassment. These measures
include establishing: a national law prohibiting violence and
harassment; a comprehensive strategy on GBVH; strong enforcement and
monitoring mechanisms; access to remedies and support for victims;
sanctions for violators; education and training to raise awareness; and
effective inspection and investigation of cases.\10\
ILO Convention 190 seeks to address GBVH against all working
people, and thus has a broad scope of coverage. The Convention protects
not just ``employees'' or even ``workers,'' but all ``persons in the
world of work . . . irrespective of their contractual status,''
including trainees, apprentices, interns, and jobseekers.\11\ The
definition of ``violence and harassment'' is similarly expansive,
encompassing ``a range of unacceptable behaviors and practices'' that
may or do result in ``physical, psychological, sexual or economic
harm.'' \12\ Further, ILO Convention 190 not only prohibits GBVH inside
the workplace, but also during work-related travel, trainings, commutes
to and from work, or as part of work-related communications.\13\
Recognizing that employers have a crucial role to play in
combatting violence and harassment, ILO Convention 190 also calls on
governments to adopt laws and policies requiring employers to take
certain steps, such as: adopting and implementing a workplace policy on
violence and harassment; identifying and addressing particular hazards
and risks; and providing accessible training to relevant persons.\14\
Consistent with the ILO's tripartite approach, ILO Convention 190 calls
for all such laws, policies, and other measures to be developed in
consultation with both employers' organizations and workers'
organizations.\15\
Over the last twenty years, China has sought to translate
international commitments to combat GBVH and gender-based employment
discrimination into domestic laws. The Chinese Constitution,
promulgated in 1982, protects equal rights and equal pay for women and
men.\16\ The 1994 Labor Law similarly demands the equal treatment of
women in employment and prohibits discrimination against them, as does
the 2007 Employment Promotion Law.\17\ The Women's Protection Law, as
amended in 2005, demands equality, forbids discrimination, and
prohibits sexual harassment, even providing victims the right to file a
complaint against the harasser with their employer, the relevant
administrative agency, or in court.\18\ In 2012, an employment-specific
provision was issued as part of the Special Regulation on the Labor
Protection of Female Employees, which provided that ``employers shall
prevent and prohibit the sexual harassment of female employees in their
workplaces.'' \19\ Most recently, following the adoption of ILO
Convention 190, and perhaps in response to the #MeToo movement, China
enacted a Civil Code in 2020 that includes a provision (Article 1010)
establishing liability for perpetrators of sexual harassment and
obligating employers to adopt measures to investigate, prevent, and
stop workplace sexual harassment.\20\
These various domestic laws and regulations also have significant
limitations though. For instance, the operative text addressing sexual
harassment is vague and fails to define key terms or specify what acts
are prohibited. Furthermore, the legal liability for employers who fail
to adopt adequate measures to prevent or address GBVH remains
unspecified, and there are no clear penalties. Moreover, despite
China's legislative progress, ending GBVH requires surmounting
persistent problems of gender-based discrimination, violence, and
harassment in the Chinese workplace and society.
II. GBVH in the Chinese Workplace
GBVH in China's workplaces should be understood in the broader
context of women's participation in the Chinese workforce. In the
Maoist period, women were celebrated as ``holding up half the sky'' and
encouraged to enter the workforce. However, the era of economic
liberalization re-introduced traditional Chinese views on gender roles
and the manifestation of the problems commonly found in capitalist
societies. The recalibration of social values ushered in by Xi Jinping
exacerbated these trends. Far from advocating workforce participation,
President Xi has called on women to embrace their ``unique role'' in
the family and ``shoulder the responsibilities of taking care of the
old and young, as well as educating children.'' \21\
As a result of these trends, women's labor force participation
rates dropped from 73 percent in 1990 to 61 percent in 2019.\22\ The
wage gap between working women and their male peers has also grown.
Thirty years ago, Chinese women earned around 80 percent of what men
made. By 2010, however, according to official data, women in Chinese
cities earned only 67 percent of their male counterparts' earnings, and
women in the countryside only made 56 percent of the amount made by men
in rural areas.\23\ One study, conducted by a leading recruitment
service in China, concluded that women are paid 22 percent less than
their male counterparts.\24\ In 2018, over 30 percent of Chinese women
reported feeling that they had fewer career opportunities than men.\25\
In fact, gender has a larger impact on income inequality than whether
one is from the countryside or a big city.\26\
Gender-based discrimination towards female workers begins with the
hiring process. National legislation bars women from working in certain
``physically demanding'' professions, such as logging and mining.\27\
In other industries, employers simply choose to exclude women. Job
advertisements in China routinely specify ``men only,'' ``men
preferred,'' or ``suitable for men''--this was even the case for 19
percent of national civil service job postings in 2018.\28\ One
motivating factor for this discrimination is that companies must offer
at least 14 weeks of paid leave to women having children, but fathers
typically get only two weeks. Some employers seek to circumvent this
protection by forcing female employees to sign an agreement promising
not to get pregnant, despite the illegality of this practice.\29\ Many
other employers will simply decline to hire women, especially those
perceived as likely to have children in the near future.
The preamble to ILO Convention 190 recognizes that gender
stereotypes, discrimination, and unequal power relations are both
``underlying causes'' and ``risk factors'' for GBVH in the workplace--
and this is consistent with women's experiences in China. Scholars have
attempted to gauge the prevalence of sexual harassment in the Chinese
workplace: for instance, a 2007 survey found that 80 percent of working
Chinese women have experienced sexual harassment.\30\ These findings
were reinforced by a 2017 poll conducted by Huang Xueqin--introduced in
the Executive Summary of this report--who found that over 80 percent of
the 255 female journalists she surveyed reported being subjected to
varying degrees of sexual harassment at work.\31\ Other studies have
produced lower but still significant numbers. For instance, one survey
of 2,000 urban Chinese women found that just under 20 percent reported
experiencing sexual harassment in the workplace.\32\ These numbers are
even more remarkable when one considers the global trend in
underreporting instances of GBVH due to fear of stigma and other
reasons.\33\
Workplace GBVH occurs in various forms in China. In what is often
considered China's first sexual harassment lawsuit, a woman complained
that her boss repeatedly touched her body while promising her a better
job, invited her to his hotel room, and withheld her bonus when she
complained.\34\ A review of other Chinese court cases reveals instances
of harassment not only by those in positions of authority within the
workplace, but also by customers and co-workers. GBVH is most commonly
perpetrated through verbal comments, touching, and chat messages.
Indeed, a study by the Chinese Academy of Social Sciences in the 1990s,
in which 84 percent of female workers reported experiencing harassment,
found that the two most common forms were unwelcome touching (70.48%)
and sexual jokes or comments (60.36%).\35\ Chinese court decisions show
numerous other forms of GBVH. For instance, one manager required his
employee to watch pornographic material with him.\36\ Several managers
invited their female employees to have sex or affairs with them.\37\
Like in other parts of the world, GBVH in China also affects blue-
collar workers.\38\ One study found that 70 percent of female factory
employee respondents in Guangzhou experienced some form of GBVH at
work, and 15 percent were compelled to quit their jobs due to the
harassment.\39\ As highlighted in the Executive Summary, a former
Foxconn worker described the factory's ``prevalent . . . sexual
harassment culture'' in which a woman who complains is likely to be
accused of being `` `too sensitive' and `unable to take a joke.' ''
\40\ Female workers in Chinese Walmart stores reported similar
experiences: after complaining of being inappropriately touched by
store patrons in 2017, their managers dismissed their grievance and
retorted ``the customer is always right.'' \41\
While this report focuses on the workplace, it should be noted that
GBVH in China extends beyond that arena. The first manifestation of the
#MeToo Movement in China concerned college campuses: in January 2018,
Luo Xixi alleged that she was sexually assaulted by her former thesis
advisor. Indeed, a 2016 survey of more than 6,000 students and recent
graduates found that over 70 percent reported being sexually harassed;
however, only 4 percent said they reported it to the university or
police.\42\ A study by the China Family Planning Association found that
over 30 percent of university students experienced sexual harassment or
violence.\43\ A Nanjing University survey revealed that 16 percent of
female respondents had experienced sexual harassment, and 23 percent of
them claimed that the perpetrators were university professors or
staff.\44\ Outside the educational context, women also report
encountering GBVH in other parts of their daily lives. For instance, in
Beijing, more than half of female respondents to a 2017 China Youth
Daily survey said they, or someone they knew, had experienced sexual
harassment while riding the metro.\45\
III. The Impact and Limits of China's Legal Protections against GBVH
China has had a national law prohibiting sexual harassment and
authorizing victims to file complaints since 2005, and a national
regulation requiring employers to prevent and respond to sexual
harassment in the workplace since 2012. However, the effectiveness of
this legal regime to prevent and stop sexual harassment has been
seriously hampered because key terms were not defined, the obligations
of various actors were not specified, and punishments were not
prescribed. It is routine in Chinese legislative practice, where
administrative enforcement is largely carried out by local government
agencies, for local governments to adopt measures that provide more
detail to the often-vague national dictates. Indeed, this is what
happened in the field of sexual harassment, with some localities
providing more specific definitions of sexual harassment or more
defined duties for employers.\46\ However, after 2012, there was little
legislative activity at the national level concerning sexual harassment
for nearly one decade.
In 2020, China took a significant step forward when the National
People's Congress enacted the Civil Code. This included a new provision
on sexual harassment, Article 1010, which took effect on January 1,
2021:
A person who has been sexually harassed against their will by
another person through oral words, written language, images,
physical acts, or the like, has the right to request the actor
to bear civil liability in accordance with law.
The State organs, enterprises, schools, and other organizations
shall take reasonable precautions, accept and hear complaints,
investigate and handle cases, and take other like measures to
prevent and stop sexual harassment conducted by a person
through taking advantage of his position and power or a
superior-subordinate relationship, and the like.\47\
The legislation clearly establishes that perpetrators of ``sexual
harassment'' may bear civil liability and provides the beginnings of a
definition of that term. Article 1010 also creates an obligation for
state organs, employers, and other institutions to take measures to
prevent sexual harassment as well as accept and investigate complaints.
Nonetheless, key questions--including whether and when an employer may
face legal liability--remain unanswered.
At least one local government has already acted to fill in some of
the gaps left open by Article 1010. In March 2021, the Shenzhen
government issued the Shenzhen Municipal Guideline on the Prevention of
Sexual Harassment (the ``Shenzhen Guideline'' or ``Guideline''), which,
according to the preamble, draws upon ``advanced domestic and
international practices.'' \48\ As detailed below, although the 13-page
Shenzhen Guideline is not legally binding, it breaks new ground by
providing a more developed definition of sexual harassment, specifying
the steps that employers should take to prevent sexual harassment and
how complaints are to be handled, prescribing specific punishments for
perpetrators based on the severity of the misconduct (including that
the employer order an apology, demotion, warning, dismissal, or
blacklisting), instructing government departments to take certain
actions, and stressing that sexual harassment complaints and
investigations be kept confidential.
But, to what extent do these Chinese laws and regulations provide
meaningful protections or remedies for workers? Information and data on
this topic are limited. Therefore, the author conducted a broad review
of cases from the SPC's database of Chinese judicial decisions to
investigate what types of GBVH incidents are occurring in Chinese
workplaces, how GBVH disputes are handled, and how Chinese courts treat
these claims.\49\
The author began by searching for all cases in the database issued
prior to 2021 that mention the term ``sexual harassment'' (Chinese
translation appears in the original), which yielded 881 total hits.
After eliminating the criminal and administrative cases, there were 577
civil judgments, which included 187 tort disputes alleging an
infringement of the right to personality and 233 labor disputes.\50\
For these two types of cases, the author's research team read through
all of the trial-level decisions that were not duplicates and that
actually concerned sexual harassment.\51\ The author then searched for
all decisions containing the words ``sexual harassment'' issued after
January 1, 2021, when Article 1010 took effect, which yielded 33 hits,
of which 22 were civil cases--including 5 personality rights disputes
and 7 labor disputes.\52\ The author's research team also read and
analyzed all of these decisions.
Drawing upon the author's analysis of these civil cases as well as
other sources, the paragraphs that follow examine the landscape of
Chinese actors and institutions involved in enforcing the legal
prohibition on sexual harassment in the workplace. Specifically, this
section evaluates the role played by Chinese employers, administrative
agencies, and courts in preventing and addressing instances of GBVH.
a. enforcement by chinese employers
The 2012 Special Regulation on the Labor Protection of Female
Employees required employers to prevent and prohibit sexual harassment
of female employees in their workplaces. Article 1010 of the Civil Code
builds upon this obligation by directing employers to adopt measures to
receive and investigate complaints, and prevent and stop sexual
harassment. However, no penalties are prescribed for when employers
fail to do so, which begs the question: to what extent are employers
adhering to these requirements?
An employer that seeks to prevent and address workplace sexual
harassment and other forms of GBVH might issue an anti-harassment
policy, establish a complaint mechanism, or provide training to workers
and managers. There is not a great deal of data, however, regarding
employer compliance in this area; and the data that exists is not very
encouraging. For instance, in a 2018 survey of 100 respondent
companies, 81 percent reported that the company had no anti-sexual
harassment policy, while 12 percent reported that a written policy
existed but was not implemented.\53\ According to Huang Xueqin's survey
of journalists, only three percent reported having received any
information or training on sexual harassment.\54\ Discussions with
Chinese employment lawyers suggest that outside of foreign-owned
companies, it is quite rare to see an explicit anti-sexual harassment
policy or complaint mechanism, let alone for an employer to pay for
training.\55\ Even after Article 1010 took effect, consultants report
that Chinese employers are reluctant to adopt policies or pay for
trainings.\56\
The court cases examined for this study bring a bit of positive
news. A large portion of the lawsuits were brought by employees who had
been disciplined for engaging in sexual harassment--meaning that
employers in these cases responded to complaints of misbehavior and
stood by their decision to discipline employees even in the face of a
lawsuit. In fact, a 2020 study of 199 labor disputes relating to sexual
harassment found that alleged harassers who are disciplined or
terminated by their employers actually prevail on their unjust
dismissal claim 70 percent of the time--a finding consistent with the
author's review of relevant cases.\57\ In other words, employers
terminated alleged harassers even though it often cost them money in
court. The 2020 study also suggests that employers may be paying more
attention to sexual harassment than in the past: a majority of
companies involved in these lawsuits at least had a provision in their
employee handbook prohibiting sexual harassment.\58\ That being said,
none of the cases reviewed by the author discussed an instance where
the employer compensated a sexual harassment victim.
The above analysis demonstrates that, regardless of whether the
employer's Article 1010 obligations to adopt measures to prevent,
investigate, and stop sexual harassment carry penalties, it is still in
employers' self-interest to adopt such measures. Chinese labor law only
permits the termination of an employee without compensation where a
clear work rule has been violated. If an employee challenges their
termination in court, the employer has the burden to establish that a
violation of an established rule occurred.\59\ Accordingly, employers
would be wise to adopt clear policies prohibiting GBVH and routinely
gather evidence when complaints of sexual harassment arise. Failing to
do so will make it difficult for an employer to justify its dismissal
of the alleged harasser. By contrast, in one case where the employer
did prohibit sexual harassment in the employment contract, and the
employer established that the alleged harasser had been making sexual
remarks and touching his female coworker, the court upheld the
termination without compensation.\60\
b. enforcement by the chinese government
Prior to 2021, there is little evidence of China's various
government agencies actively assisting in fighting GBVH in the
workplace, particularly where it does not rise to the level of a
criminal act. The Chinese lawyers and other stakeholders interviewed
for this study were unaware of any case in which the Chinese government
reprimanded an employer for lacking a policy prohibiting or preventing
sexual harassment. Furthermore, rather than helping victims seek
redress, there are numerous reports of government agencies trying to
dissuade victims from pursuing their case. When Xianzi, the harassed
CCTV intern introduced in the Executive Summary, complained to the
police, she was encouraged not to pursue the accusation against Zhu Jun
and told to consider her reputation and family, as well as the negative
social impact of bringing a complaint. This dissuasion also occurs
outside of the employment context: one university student, Xin Yue, who
sought information from administrators about a prior rape case
involving another student was faced with intimidation by the school's
authorities, who hinted that the student might not graduate and
threatening to contact her parents.\61\
c. enforcement through the chinese courts
This section considers what happens when sexual harassment victims
seek redress through the Chinese courts. While various national and
local measures have made progress in defining ``sexual harassment'' and
explicitly authorizing victims to sue in court, few workers have
brought lawsuits against their harasser, and those who do face an
uphill battle, particularly in regard to obtaining meaningful remedies
and avoiding retaliation. The paragraphs that follow discuss these
issues.
1. Small Number of Cases
Even prior to the issuance of Article 1010, Chinese law provided
sexual harassment victims the option to file a claim in court.
Nonetheless, despite the prevalence of GBVH in the Chinese workplace,
there are not many sexual harassment court cases. A 2018 study
performed by the Beijing Yuanzhong Gender Development Center found only
34 judicial decisions from 2010 to 2017 where sexual harassment in the
workplace was the primary issue--and only two of these were brought by
victims.\62\ The author was able to find a few more than two cases in
which an employee alleged being a victim of sexual harassment; but, as
described above, cases brought by targets of sexual harassment are
still far fewer than those brought by employees terminated due to an
allegation of sexual harassment. At present, there is no evidence that
the situation has changed dramatically since Article 1010 took effect
in January 2021. In fact, this study identified only four decisions
that have been issued in tort cases mentioning ``sexual harassment''
since January 2021.\63\ However, in fairness, it may be too early to
tell--particularly as Article 1010 only applies in cases where the
conduct occurred after January 1, 2021. The remainder of this section
focuses on the experiences of workers that have filed GBVH claims in
the Chinese courts and considers issues they face in obtaining justice.
2. Defining ``Sexual Harassment''
The lack of a clear definition of sexual harassment, or a threshold
at which point objectionable behavior becomes legally actionable, has
created obstacles for Chinese claimants. Article 1010 marks a step
forward by noting the types of acts that may constitute harassment--
``oral words, written language, images, physical acts, or the like''--
but does not speak to the threshold at which such acts create liability
for the perpetrator or employer. By way of comparison, even under the
standard for establishing that a hostile work environment exists under
federal law in the United States--that the harassment be either
sufficiently ``severe'' or ``pervasive''--judges may disagree as to
whether a set of facts meets this threshold.\64\ In China, the courts
lack even an amorphous standard of this sort to guide them.
The Shenzhen Guideline makes significant progress in this regard by
fleshing out a definition of sexual harassment: ``sexual harassment is
nonconsensual, sexual in nature, unwelcome tortious conduct, through
oral words, written language, images, physical acts, or the like, that
offends, intimidates, or humiliates the person, resulting in negative
emotions, or a hostile, unfriendly work (study) environment.'' \65\ The
Guideline then elaborates on three important aspects of the definition.
First, the Guideline states that conduct constituting ``sexual
harassment'' must have three components: (i) it is sexual in nature;
(ii) it is unwelcome by the target (using a subjective standard); and
(iii) it results in a violation of the person's right to personality
and causes negative emotions, or a ``hostile or unfriendly work . . .
environment.'' \66\ (Chinese translation appears in the original.)
Second, the Guideline provides explanations and examples of the four
types of harassing acts (oral words, written language, images, physical
acts) identified in Article 1010. As an example, the Guideline notes
that ``oral words'' may include commenting on a person's sensitive body
parts, unwelcome teasing, sexual and dirty jokes, or other unwelcome
comments. Third, the Guideline recognizes two primary forms of sexual
harassment: (i) using one's power, status, or advantages to make the
person conduct sexual acts, or (ii) creating a hostile work
environment.\67\ This definition provides far more guidance to Chinese
judges than existed previously.
The Shenzhen Guideline, nonetheless, does not fully answer the
question of when unwelcome behavior becomes legally actionable. The
Guideline improves upon Article 1010 by clarifying that a subjective
standard should be used to determine whether the allegedly harassing
conduct is unwelcome. The Guideline also provides useful examples of
conduct that does not constitute sexual harassment, such as inadvertent
or accidental physical contact, an accidental or solitary sexual
comment, or certain socially acceptable language or behaviors. However,
it does not affirmatively articulate at what point harassing comments,
touching, or behavior does, for instance, constitute a ``hostile or
unfriendly work environment.'' The result may be that Chinese judges
seeking to use the Guideline as a reference in deciding sexual
harassment cases must still develop their own standards.
While marking a major step forward, the definition of sexual
harassment in the Shenzhen Guideline is also still not as expansive as
ILO Convention 190's coverage of the ``range of unacceptable behaviors
and practices'' that may or do result in ``physical, psychological,
sexual or economic harm.'' \68\ However, the model employer policy that
is issued along with the Shenzhen Guideline is largely consistent with
ILO Convention 190's expansive definition of the workplace, as it not
only prohibits sexual harassment at the regular place of work, but also
misconduct at any work-related meetings, training events, business
trips, or other activities that take place outside the employer's
premises.\69\
3. Proving Sexual Harassment
The issue of what evidence, or how much evidence, is necessary to
support a finding of sexual harassment has been a formidable obstacle
for plaintiffs. Chinese courts often require plaintiffs to prove facts
to a ``high degree of likelihood'' to prevail on their claims, which
some legal scholars have described as requiring certainty of 85 percent
or more.\70\ Moreover, the Chinese legal system places a strong
emphasis on physical evidence and attributes very little evidentiary
weight to oral testimony. Indeed, court guidelines for civil cases
provide that a party's testimony cannot be the sole basis for
establishing a fact in a case--some corroboration is necessary.\71\ For
instance, in seeking compensation from her employer for being subjected
to unlawful working conditions, Ms. Zhao testified about being harassed
by her manager while on a business trip and being frequently forced to
share a hotel room with male colleagues. However, the court denied her
claim because she had no physical evidence to corroborate her
testimony.\72\ Since sexual harassment cases often involve verbal
comments or unwelcome touching, physical evidence rarely exists. Even
in instances where the victim introduced evidence of harassing messages
coming from the defendant's social media account, the court found that
the plaintiff was unable to adequately demonstrate that the defendant
is the one who had sent them.\73\ In fact, Walmart had the same problem
when it terminated an employee for sending harassing messages: the
court found that Walmart could not demonstrate that the social media
posts were actually sent by the employee and thus the dismissal without
compensation was not legal.\74\
Article 1010 does not address any issues concerning the evidentiary
standard for plaintiffs or the weight that oral testimony should be
given, nor does the Shenzhen Guideline. Interestingly, however, the
Guideline does direct companies to train workers and managers on how to
preserve physical evidence of harassing behavior, further underscoring
the primacy of physical evidence in Chinese legal proceedings.\75\
4. Remedies for Victims
Even where a GBVH victim prevails in litigation, the remedies
ordered by the courts have been paltry and disappointing. In one early
case, back in 2002, a local court in Hainan Province ordered a 68-year-
old man to apologize for harassing three young men, but only ordered
that he pay them 1 RMB each for emotional suffering.\76\ In what some
call the first ``successful'' sexual harassment case in Guangzhou,
where a supervisor hugged an employee from behind and then strangled
her neck when she tried to break free, the victim was only awarded RMB
3,000 (US $470) by the court--and was also fired after bringing the
litigation.\77\
Victims have not fared much better in more recent cases, as the
courts remain reluctant to award damages. In the first successful case
filed since the SPC declared ``sexual harassment'' an explicit cause of
action, which was even selected as one of China's ``top 10'' public
interest lawsuits for 2019, the court found that sexual harassment
occurred, but denied the claim for monetary compensation--only ordering
that the defendant apologize.\78\ Even where the defendant in a case
already agreed to pay the plaintiff RMB 12,000 (US $1,883), the court
unilaterally declared the number to be too high and reduced the
compensation to RMB 5,000.\79\
It is not yet clear to what extent Article 1010 may improve the
situation. On the one hand, in March 2021, a Shanghai court awarded RMB
98,000 ($15,000) to a plaintiff who alleged that her colleague sent
disturbing text messages to her daily for six months--an
``unprecedented'' award in a sexual harassment lawsuit.\80\ However, a
few months later, in a May 2021 decision that cites Article 1010, the
female plaintiff alleging that her coworker touched her breasts and
buttocks requested RMB 30,000 (US $4,709) in damages, but the court
found insufficient evidence that the sexual harassment caused the
plaintiff's depression and awarded only RMB 5,000 (US $784).\81\ These
limited monetary awards, particularly after overcoming the numerous
other litigation obstacles outlined above, will likely further
discourage victims from ever acting upon their sexual harassment
claims.
5. Retaliation and Defamation Suits
Victims who complain about GBVH not only have a low likelihood of
obtaining meaningful redress, but also face considerable retaliation.
Employers and others may dissuade victims from pursuing complaints in
the first place. For instance, one manager lobbied a female employee to
withdraw her police complaint about a coworker who repeatedly
ejaculated into her teacup.\82\ Victims have faced terminations, forced
resignations, and retaliatory harassment.\83\ Restaurant managers in
Guangdong forcibly evicted a worker from the company dormitory after
she complained about sexual harassment.\84\ In one litigation, the
defendant requested that the court order a psychological evaluation of
the complainant.\85\ GBVH may even be used as a form of retaliation:
after Walmart employee Xiaoli complained about the flexible working
hour system, her manager assigned her to clean the store toilets and
took photos of her while she used the bathroom.\86\
GBVH victims who complain or make their allegations public often
get sued for defamation, as in the case of Xianzi, who complained that
a television news anchor harassed her during an internship. In fact,
the SPC database contains a total of 113 civil case judgments
containing the word ``sexual harassment'' in which defamation is a
cause of action. Since the start of the #MeToo Movement, numerous
defamation cases have been filed against women who shared accounts of
being victimized by GBVH. Ms. Wang, a former World Wildlife Fund
employee, was sued for defamation after posting an account of sexual
harassment by her boss on social media. The court found Ms. Wang's
testimony inadequate to establish that the harassment occurred, and
thus ordered Ms. Wang to delete the post and apologize.\87\ In another
matter, after He Qian published an online account of being invited to
her supervisor's hotel room, where he forcibly kissed, groped and
undressed her, she was greeted by a defamation lawsuit and ordered to
pay RMB 11,712 (roughly US $1,800) for the supervisor's hurt feelings
and litigation expenses.\88\ Despite the lack of any legal authority
providing that the burden of proof is reversed in defamation suits, the
judge in He Qian's case found that it was her burden to show that the
alleged acts occurred, but that she failed to do so.\89\ Her lawyer
equated this ruling to telling a humiliated victim ``that if you don't
have audio recordings or videos of the event, then you better hurry up
and shut your mouth.'' The attorney predicted that such cases will have
a definite chilling effect on victims coming forward.\90\
These acts of retaliation and the filing of defamation lawsuits
arise in a context where Chinese victims are already hesitant to
complain. A 2015 survey by Sina.com found that only four percent of
women and three percent of men who were sexually harassed had filed
complaints with the police.\91\ A poll of Chinese journalists found
that only 3.2 percent reported the encounter to their company, and only
0.6 percent made a police report.\92\ Some experts have remarked on
China's ``culture of silence,'' in which victims feel embarrassment
over having been involved in such instances and choose not to discuss
or share the experience. In a system where few plaintiffs prevail, and
those who do receive little reward, filing a lawsuit hardly seems
worthwhile, especially in light of the potential retaliation and
reputational damage. In the words of a Beijing lawyer who has handled
nearly 20 sexual harassment cases since 2005, the outcome for most
victims who sue is that they lose their case and lose their husband or
boyfriend in the process.\93\
IV. Recommendations
China has made notable progress in combating GBVH, including
adopting specific measures since the enactment of ILO Convention 190.
However, as in most Member States, there remains much work to do before
every Chinese worker can enjoy a workplace free from violence and
harassment. Government, employer, worker, and other civil society
stakeholders each need to make concerted efforts to end all forms of
workplace violence and harassment.
As a preliminary matter, it must be noted that successfully
preventing and ending GBVH requires workers and their organizations to
play a central role in the design and implementation of GBVH policies
at the political, sectoral, and workplace levels, as recognized by ILO
Convention 190. In other jurisdictions, trade unions traditionally play
the role of representing workers' interests in these activities, but
the situation in China is more complex in this regard. The All-China
Federation of Trade Unions (``ACFTU'') does, technically, have the
largest membership of any union in the world. However, the ACFTU is far
from a democratic institution that zealously represents the interests
of workers; instead, the trade union functions essentially as part of
the Chinese government and its mission is to harmonize relations
between employers and employees. The institution is comprised of union
officials who are essentially civil servants placed at the various
levels of government as well as workplace-level union branches that are
generally dominated by the employer.\94\ In this context, the ACFTU has
occasionally demonstrated an ability to promote workers' interests at
the policy level (such as by promoting certain legislation) or through
work that is not specific to any one workplace (like developing
training materials, conducting public education, or arranging legal aid
services for workers), but it has been largely ineffectual in
protecting employees and their interests at the workplace level.\95\ In
light of this reality, the report discusses the ACFTU both in its
recommendations to the Chinese government and to Chinese workers'
organizations.
Given the limitations of the ACFTU, there is a need in China for
other civil society actors to play a role in advocating for and
protecting workers with regard to GBVH and related issues. However,
Chinese authorities have clamped down on many of the civil society
actors focused on GBVH and thus greatly limited opportunities for them
to do meaningful work in this area. For instance, back in 2015, the
``Feminist Five''--a group of five young female activists who advocated
against gender inequality, domestic violence, and sexual harassment--
were arrested because they planned to hand out stickers on the Beijing
subway to raise awareness about sexual harassment.\96\ In 2016, Chinese
authorities shut down the country's first women's rights legal aid
center, which represented low-income Chinese women free of charge and
also brought impact litigation cases.\97\ As the #MeToo movement gained
steam, the government cracked down on non-governmental organizations
working on feminist advocacy and women rights issues, closed online
discussion forums, and limited coverage in the official media.\98\
Chinese censors had initially banned information about Xianzi's sexual
harassment allegations against the CCTV host, and only began reporting
on them once Zhu Jun had filed his defamation claim against Xianzi.\99\
The above actions took place in the context of a broader tightening
of the space for labor rights activists in China. In December 2015, the
Chinese government targeted a group of labor rights NGOs in Guangzhou,
arresting dozens of NGO staff and prosecuting three of the
leaders.\100\ From the summer of 2018 to the spring of 2019, the
government clamped down on student and labor activists that unionized
workers at the Jasic factory in Shenzhen, and then subsequently widened
the repression to broader networks of labor rights advocates.\101\ This
wider crackdown included labor NGOs in Shenzhen, journalists who
operated social media platforms focused on labor rights, and leaders of
community organizations.\102\ The level of government intimidation and
harassment has not softened since then.
Accordingly, the author recognizes the significant limitations that
the ACFTU and civil society actors may face in conducting certain types
of advocacy for workers relating to GBVH. Nonetheless, the report
offers recommendations for workers' organizations to engage in
tripartite dialogue at national and local levels, participate at the
sector and workplace levels in risk assessments and GBVH policy design
and monitoring, and provide context-specific education and training of
workers regarding their rights and how to enforce them.
Additionally, for every recommendation that follows, in line with
Article 4(2) of ILO Convention 190, the report recommends that the
Chinese government adopt ``an inclusive, integrated, and gender-
responsive approach for the prevention and elimination of violence and
harassment in the world of work.'' This means including the perspective
of workers from all sectors and demographics in crafting legislation or
regulations (that define GBVH, strengthen employer liability, establish
standards regarding evidence or remedies, prohibit retaliation, and
expand government enforcement) and in setting goals and priorities that
contribute to resource allocation (towards enforcement of these laws,
training of government officials, and funding for victim services).
a. recommendations for the chinese government
1. Improve the Legislative Framework \103\
ILO Convention 190 recognizes that effectively combating sexual
harassment requires Member States to create an appropriate legal
framework.
Article 4(2) of ILO Convention 190 calls on each Member
State to ``adopt, in accordance with national law and circumstances and
in consultation with representative employers' and workers'
organizations, an inclusive, integrated and gender-responsive approach
for the prevention and elimination of violence and harassment in the
world of work.''
The paragraphs that follow will highlight specific recommendations
in regard to revising China's legislative framework. In keeping with
provisions from ILO Convention 190, the recommendations include:
expanding the definition of prohibited GBVH conduct, establishing clear
legal liability for employers, adopting appropriate evidentiary rules
and meaningful remedies in litigation, and creating safeguards against
retaliation and confidentiality protections.
a. Expand the Definition of Prohibited GBVH Conduct
ILO Convention 190 requires each Member State to adopt legislation
prohibiting GBVH.
Article 7 of ILO Convention 190 obligates Member States
to ``. . . adopt laws and regulations to define and prohibit violence
and harassment in the world of work, including gender-based violence
and harassment.''
As laid out in this report, China has taken a few positive steps at
the national level since the rise of the #MeToo movement. These include
creating an explicit cause of action for ``harm caused by sexual
harassment'' in December 2018 as well as adopting Article 1010 as part
of the Civil Code in 2020. At a minimum, these legislative efforts
demonstrate a recognition of the problem and signal the government's
commitment to addressing it.
Nonetheless, these measures are only an initial step towards
building a sufficient legal framework to counter GBVH. The Article 1010
clause creating civil liability for perpetrators of sexual harassment
still leaves many questions unanswered. The provision reads in relevant
part: ``[a] person who has been sexually harassed against their will by
another person through oral words, written language, images, physical
acts, or the like, has the right to request the actor to bear civil
liability in accordance with law.'' \104\ One academic involved in
drafting Article 1010 argues that the provision only creates liability
for harassment targeted at specific individuals, but not acts that
create a harassing environment more generally.\105\ Indeed, one women's
rights lawyer pointed out that the academic's interpretation reflects
that sexual harassment in China is still being viewed as an ordinary
tort, akin to one party punching another, rather than as a more
systemic GBVH issue.\106\
As discussed above, the Shenzhen Guideline issued earlier this year
fills in some of the gaps in Article 1010's vague definition, such as
by identifying three components to a ``sexual harassment'' claim,
providing examples of prohibited conduct, and articulating the two
conceptions of sexual harassment (one based on coerced sexual acts and
one based on a hostile work environment). China should encourage all
localities to not only adopt similar measures, but to promulgate them
with the force of law rather than as non-binding guidelines. In
addition, any legislation should make explicit the threshold for when
unwelcome or inappropriate behavior becomes legally actionable, such as
by defining terms like ``hostile and unfriendly work environment.''
\107\
b. Establish Clear Legal Liability for Employers
Employers play a crucial role in preventing and addressing GBVH. ILO
Convention 190 calls upon Member States to require employers to control
and prevent GBVH through adopting policies, identifying and addressing
risks, providing information and training to workers and other persons,
and establishing investigation and complaint procedures as well as
workplace-level dispute resolution mechanisms. The section below on
recommendations for employers specifies the components to be included
in such policies and mechanisms. This section addresses how the Chinese
government can ensure that employers fulfill these responsibilities.
Article 9 of ILO Convention 190 calls upon Member States
to ``adopt laws and regulations requiring employers to take appropriate
steps commensurate with their degree of control to prevent violence and
harassment in the world of work, including gender-based violence and
harassment, and in particular, so far as is reasonably practicable, to:
a. adopt and implement, in consultation with workers and their
representatives, a workplace policy on violence and harassment;
b. take into account violence and harassment and associated
psychosocial risks in the management of occupational safety and health;
c. identify hazards and assess the risks of violence and
harassment, with the participation of workers and their
representatives, and take measures to prevent and control them; and
d. provide to workers and other persons concerned information and
training, in accessible formats as appropriate, on the identified
hazards and risks of violence and harassment and the associated
prevention and protection measures, including on the rights and
responsibilities of workers and other persons concerned in relation to
the policy referred to in subparagraph (a) of this Article.''
Article 10 of ILO Convention 190 calls upon Member States
to take measures to ``(b) ensure easy access to appropriate and
effective remedies and safe, fair and effective reporting and dispute
resolution mechanisms and procedures in cases of violence and
harassment in the world of work, such as: (i) complaint and
investigation procedures, as well as, where appropriate, dispute
resolution mechanisms at the workplace level . . . ''.
Article 10 also calls upon Member States to take measures
to ``(d) provide for sanctions, where appropriate, in cases of violence
and harassment in the world of work.'' Paragraph 14 of Recommendation
206 further elaborates on this provision, adding that sanctions could
include the right to resign with compensation, reinstatement, or
``orders requiring measures with immediate executory force to be taken
to ensure that certain conduct is stopped or that policies or practices
are changed.'' This elaboration makes clear that Article 10 envisions a
legal regime that places liability not just on GBVH offenders, but also
on employers, who are the ones equipped to offer remedies such as
reinstatement or a change in workplace policy.
Turning to China's domestic law, while Article 1010 and local
regulations create obligations for employers to prevent or stop sexual
harassment, what are the repercussions when an employer fails to do so?
Prior to the issuance of the Civil Code, it was fairly clear that no
national law or regulation created liability for an employer; only the
harasser could be held liable. Article 1010 is similarly silent as to
whether an employer may face any punishment, either in the form of
civil liability or an administrative sanction, for failing to adopt
measures to prevent or address sexual harassment.
An essential component of ensuring that employers have the proper
incentives to prevent, investigate, and stop sexual harassment is the
threat of legal liability. Indeed, several Chinese commentators argue
that Article 1010's lack of any explicit punishment means it is
unlikely to actually change employer behavior: as Professor Shen Yifei
questioned, ``If a regulation has neither mechanisms for punishment nor
incentives, how can it be implemented?'' \108\ One Chinese scholar
believes that Chinese employers may be held liable under Article 1010,
but only if the plaintiff proves that the company's failures to adopt a
sexual harassment policy caused the harm--a difficult standard to
meet.\109\ Looking to the United States, avoiding the payment of large
monetary awards to victims is an important motivation for many
companies to establish policies to prevent and address GBVH.
Local regulations in China have been more explicit about the issue
of employer liability. A regulation issued by Jiangsu Province in 2018
explicitly provides that the employer is obligated to prevent and
address workplace sexual harassment and, where an employer fails to
meet its obligations, female workers may file administrative complaints
or court actions against the employer.\110\ A Sichuan Province
regulation provides that an employer is liable for a victim's injury
due to sexual harassment if the employer committed wrongdoing.\111\
(However, no cases were found in the SPC database that referenced the
employer's obligation to prevent sexual harassment under either the
Jiangsu or Sichuan regulation). The Shenzhen Guideline also hints at
the idea of employer liability: it states that the employer can avoid
liability by adopting reasonable prevention measures or a reasonable
dispute-processing mechanism.\112\ However, the Guideline does not
state the conditions to establish liability of an employer or the
applicable penalties.
Accordingly, if China is to incentivize employers to adopt
mechanisms to prevent and stop GBVH, it must create clear liability for
employers with explicit penalties, whether enforced through civil
litigation or by a government agency.
c. Adopt Appropriate Evidentiary Rules and Meaningful Remedies in
Litigation
ILO Convention 190 calls for Member States to take a variety of
measures in relation to remediating acts of GBVH.
Article 4(2)(e) calls for Member States to adopt an
approach to GBVH that includes ``ensuring access to remedies and
support for victims.''
Article 10(b) provides further specificity, requiring
Member States to adopt measures to ``ensure easy access to appropriate
and effective remedies and safe, fair and effective reporting and
dispute resolution mechanisms and procedures in cases of violence and
harassment in the world of work, such as:
i. complaint and investigation procedures, as well as, where
appropriate, dispute resolution mechanisms at the workplace level;
ii. dispute resolution mechanisms external to the workplace;
iii. courts or tribunals;
iv. protection against victimization of or retaliation against
complainants, victims, witnesses and whistle-blowers; and
v. legal, social, medical and administrative support measures for
complainants and victims.''
Article 10(e) requires Member States to take steps to
``provide that victims of gender-based violence and harassment in the
world of work have effective access to gender-responsive, safe and
effective complaint and dispute resolution mechanisms, support,
services and remedies.''
Recommendation 206 accompanying ILO Convention 190 contains
particular guidelines for courts and other complaint and dispute
resolution mechanisms.
Paragraph 14 lays out the remedies to be made available
pursuant to ILO Convention 190, Article 10(b), ``includ[ing]:
a. the right to resign with compensation;
b. reinstatement;
c. appropriate compensation for damages;
d. orders requiring measures with immediate executory force to be
taken to ensure that certain conduct is stopped or that policies or
practices are changed; and
e. legal fees and costs according to national law and practice.''
Paragraph 16 specifies that ``[t]he complaint and dispute
resolution mechanisms for gender-based violence and harassment referred
to in Article 10(e) of the Convention should include measures such as:
a. courts with expertise in cases of gender-based violence and
harassment;
b. timely and efficient processing;
c. legal advice and assistance for complainants and victims;
d. guides and other information resources available and accessible
in the languages that are widely spoken in the country; and
e. shifting of the burden of proof, as appropriate, in proceedings
other than criminal proceedings.''
The remedies laid out in ILO Convention 190 have been largely
unavailable to Chinese victims of sexual harassment and other forms of
GBVH. The Chinese courts' high evidentiary threshold for plaintiffs,
insistence upon physical evidence, and almost wholesale discounting of
victim testimony make it extremely difficult for victims to prevail.
There exist certain types of cases in which Chinese judges are
instructed to apply different evidentiary rules based on the nature of
the dispute. For instance, when a terminated employee sues for wrongful
termination, the employer has the burden to show the dismissal was
justified because it is generally the employer who has access to
evidence on which the termination was based.\113\ China should consider
the practices of other jurisdictions that have applied a similar
burden-shifting scheme in cases involving victim allegations of GBVH in
the workplace.\114\
China might also provide guidance to judges on how to evaluate
evidence in GBVH cases, including instructions allowing them to place
greater weight on oral testimony where it is known that physical
evidence is often unavailable or hard to obtain. In the United States,
for instance, guidelines issued by the Equal Employment Opportunity
Commission (``EEOC''), which investigates discrimination and harassment
claims under federal law, explicitly provide that ``in appropriate
cases, the Commission may make a finding of harassment based solely on
the credibility of the victim's allegation.'' \115\
Another area that must be addressed, either through legislation or
a court rule, is the range of remedies available to GBVH litigants.
Paragraph 14(c) of Recommendation 206 states that ``appropriate
compensation for damages'' must be available to victims. Even in the
rare instances where Chinese victims prevailed in court, the monetary
damages were paltry. In order for victims to be willing to litigate
these claims--and for violators to be sufficiently deterred--more
significant monetary damages are necessary. One obstacle is that court
awards for emotional distress in China, regardless of the type of case,
are generally low. Guidance from the SPC instructing judges on what an
appropriate range of such damages would be for various types of cases
might be helpful in this regard. The creation of some form of ``special
damages'' can also be considered. In the United States, this role is
played by ``punitive damages,'' which are available to punish
particularly outrageous conduct and may result in substantial monetary
awards to victims.
Paragraph 14(e) of Recommendation 206 also states that remedies for
GBVH victims should include an award of legal fees and costs to GBVH
victims. This measure is much needed in China, where contingency fee
arrangements are generally prohibited and victims who want to hire a
lawyer must pay upfront. The result is that a significant proportion of
Chinese workers are forced to navigate the judicial system without
representation.\116\ The same paragraph of Recommendation 206 also
mentions the need for certain non-monetary remedies, such as ordering
reinstatement, the right to resign with compensation, or injunctive
relief commanding that the abusive behavior stop. The SPC might
explicitly authorize courts to order such relief in GBVH cases.
d. Create Safeguards against Retaliation and Confidentiality
Protections
ILO Convention 190 calls for Member States to protect complainants,
victims, witnesses, and whistle-blowers against retaliation, and to
protect the privacy of those individuals involved.
Article 10(b)(iv) calls for Member States to take
measures to protect against ``victimization of or retaliation against
complainants, victims, witnesses and whistle-blowers.''
Article 10(c) calls for Member States to take measures to
``protect the privacy of those individuals involved and
confidentiality, to the extent possible and as appropriate, and ensure
that requirements for privacy and confidentiality are not misused.''
The preceding sections detailed the retaliation faced by
individuals who report GBVH. These retaliatory measures, including
defamation lawsuits, undoubtedly deter many victims from ever coming
forward. Complaint mechanisms and investigations will be largely
useless if victims are unwilling to report abuse and witnesses are
unwilling to provide information. While China has legislated to protect
complainants in other areas, such as whistleblowers of financial
crimes, no comparable provisions to protect victims of harassment exist
in China's national legislation.\117\ The non-binding Shenzhen
Guideline does state that complaint mechanisms should take steps to
prevent retaliation and the investigation process should be treated as
confidential, but the details are sparse.
China's national legislation should explicitly prohibit retaliation
against those who complain of harassment, assist in an investigation,
or serve as a witness. The law should include a definition and examples
of prohibited behavior, and specific penalties sufficient to deter
retaliation. Filing a lawsuit against someone because that person
complained of sexual harassment should be explicitly listed as such an
act.\118\ In other jurisdictions, GBVH victims who complain are
provided specific legal protections: for instance, in 2018, California
passed a law that protects employees who make sexual harassment
complaints to their employer.\119\ In addition, as discussed below,
explicit anti-retaliation provisions should be included in employers'
policies and procedures.
To protect victims and witnesses and to encourage them to come
forward, measures to protect their privacy are also recommended. While
sometimes difficult to achieve in harassment cases, reasonable efforts
should be made to keep the identity of victims confidential, if this is
requested by the complainant. At a minimum, confidential information
should be shared only with those who have a need for that information.
Employers and administrative mechanisms may be better suited to
maintain a level of confidentiality than courts.
2. Strengthen Government Monitoring and Enforcement
a. Expand Government Monitoring, Enforcement, and Dispute Resolution
Mechanisms
ILO Convention 190 recognizes the role of government enforcement in
several articles.
Article 4(2)(d) calls upon Member States to establish and
strengthen enforcement and monitoring mechanisms.
Article 4(2)(h) calls upon Member States to ensure
``effective means of inspection and investigation of cases of violence
and harassment, including through labour inspectorates or other
competent bodies.''
Article 10(b) addresses ``easy access to appropriate and
effective remedies and safe, fair and effective reporting and dispute
resolution mechanisms and procedures in cases of violence and
harassment in the world of work.'' It calls upon Member States to
ensure access to various mechanisms and procedures, ``such as:
i. complaint and investigation procedures, as well as, where
appropriate, dispute resolution mechanisms at the workplace level;
ii. dispute resolution mechanisms external to the workplace;
iii. courts or tribunals;
iv. protection against victimization of or retaliation against
complainants, victims, witnesses and whistle-blowers; and
v. legal, social, medical and administrative support measures for
complainants and victims.''
While employers should create internal complaint mechanisms and
victims should have access to the courts where those mechanisms fail,
China should also consider establishing administrative dispute
resolution mechanisms. Employer mechanisms may sometimes be inadequate
or unable to act fairly where high-level executives are the
perpetrators of the GBVH. Some victims may be unable to pursue a
lawsuit on their own, or fear retaliation if they do so. An
administrative agency could provide a free, more accessible alternative
to the courts.
In this regard, China can look to the numerous jurisdictions that
have developed administrative mechanisms to address discrimination and
harassment claims. For instance, in the United States, the EEOC
receives complaints, monitors compliance, conducts investigations,
orders compensation to victims and the payment of penalties to the
government, and mandates certain preventive or remedial action by
employers when necessary. Other countries have created special mandates
for labor inspectors, providing them with special task forces,
training, guidelines or special powers in relation to workplace
violence and harassment. For example, in El Salvador, the Ministry of
Labor and Social Security developed a national training module for
labor inspectors on discrimination and sexual and other forms of
harassment at work. Salvadoran labor inspectors are also tasked with
conducting preventive inspection visits where they can identify all
types of violence against women, including violence and harassment.
Spanish labor inspectors carry out campaigns in sectors most vulnerable
to violence and harassment, such as schools, hospitals, and shops.\120\
A significant advantage of labor inspectorates is that they are often
more accessible to GBVH victims than the more formalistic court system.
In the Republic of Korea, the Ministry of Employment and Labor even
developed a smartphone application through which workers can report
sexual harassment and request counselling services.\121\
China should additionally consider creating a specialized body that
not only investigates and processes complaints, but also is dedicated
to all aspects of eliminating GBVH. Numerous government functions are
necessary to comply with ILO Convention 190, and having a single agency
to oversee and coordinate such efforts may be beneficial. In addition
to handling enforcement and dispute resolution functions, the body
could educate employees on their rights while also providing guidance
to employers, such as model policies or training curriculum.
Furthermore, the agency could develop proposals for legislation,
regulations, judicial interpretations, or other actions by various
government bodies that would assist in the goal of combating GBVH. In
the United States, the EEOC plays all of these aforementioned roles at
the federal level. In Argentina, the Ministry of Labour, Employment and
Social Security has created the Advisory Office on Violence in the
Workplace to sensitize, train and disseminate information on the issue
of violence and harassment in the workplace as well as to streamline
complaint procedures.\122\
There is already some experience with this in China: Shenzhen's
Municipal Office for the Promotion of Gender Equality is charged by the
Shenzhen Guideline with, among other tasks, researching sexual
harassment, providing education and training, collecting statistics and
representative cases, and developing a ``blacklist'' system. This
example should be considered by the national government and other
localities.
b. Create and Conduct Trainings for Government Officials
ILO Recommendation 206 recognizes the importance of training for
government officials.
Paragraph 20: ``Labour inspectors and officials of other
competent authorities, as appropriate, should undergo gender-responsive
training with a view to identifying and addressing violence and
harassment in the world of work, including psychosocial hazards and
risks, gender-based violence and harassment, and discrimination against
particular groups of workers.''
Paragraph 23: ``Members should fund, develop, implement
and disseminate, as appropriate: . . . (b) gender-responsive guidelines
and training programs to assist judges, labour inspectors, police
officers, prosecutors and other public officials in fulfilling their
mandate regarding violence and harassment in the world of work, as well
as to assist public and private employers and workers and their
organizations in preventing and addressing violence and harassment in
the world of work.''
In line with these recommendations, China should work towards
providing gender-responsive training to its public officials. The
Republic of Korea, for example, established through statute the
Institute for Gender Equality Promotion and Education, which provides
sexual harassment prevention and counseling education to government
officials.\123\
The Shenzhen Guideline takes steps toward meeting this
international legal standard by stating that not only employers, but
all state organs must work to educate the public and train their own
personnel. The trade union, women's federation, educational
institutions, courts, and the police are all directed to engage in
education and training. An additional component of this program should
be specific GBVH trainings for professionals in these institutions,
such as judges and police officers, that are targeted towards their
work. For example, judges should not only understand sexual harassment
as it impacts their own workplace, but also receive trainings on the
subject that will assist them as mediators and adjudicators of sexual
harassment disputes.
3. Expand Legal and Other Victim Services
ILO Convention 190 calls for Member States to take measures to ensure
access to various victim services.
Article 10(e) calls for Member States to take measures to
``provide that victims of gender-based violence and harassment in the
world of work have effective access to gender-responsive, safe and
effective complaint and dispute resolution mechanisms, support,
services and remedies.''
Recommendation 206 provides specific guidance on legal and victim
services.
Paragraph 16 details specific measures that should be
contained in the complaint and dispute resolution mechanisms for
gender-based violence and harassment referred to in Article 10(e),
``such as:
a. courts with expertise in cases of gender-based violence and
harassment;
b. timely and efficient processing;
c. legal advice and assistance for complainants and victims;
d. guides and other information resources available and accessible
in the languages that are widely spoken in the country; and
e. shifting of the burden of proof, as appropriate, in proceedings
other than criminal proceedings.''
Paragraph 17 lays out specific measures that should be
included in the support, services and remedies for victims of gender-
based violence and harassment referred to in Article 10(e) of the
Convention, ``such as:
a. support to help victims re-enter the labour market;
b. counselling and information services, in an accessible manner as
appropriate;
c. 24-hour hotlines;
d. emergency services;
e. medical care and treatment and psychological support;
f. crisis centers, including shelters; and
g. specialized police units or specially trained officers to
support victims.''
Laws alone will not be sufficient to tackle the problem of GBVH.
Legal services are necessary to inform victims of their rights and help
enforce them. China's legal aid system should make available a corps of
competent, trained lawyers to represent victims unable to afford
private counsel.\124\ As mentioned above, China should also adopt
measures to make litigating these cases affordable for victims and
attractive to lawyers, such as increasing victim compensation, awarding
attorneys' fees to prevailing victims, and removing the restriction on
contingency fee arrangements.
Services to address the physiological and emotional harm caused by
sexual harassment are also necessary, including labor market re-entry
support, accessible counseling services, and medical and psychological
support. Some grassroots groups already provide mental health
counseling or psychological support to victims, but on a small
scale.\125\ There may be an opportunity for local branches of the All-
China Women's Federation or ACFTU to play a role here in providing
these services, or at least serving as an access point to connect
victims with the right assistance.
b. recommendations for chinese employers
1. Establish Employer Policies and Mechanisms to Address GBVH
Article 9 of ILO Convention 190 calls upon Member States to require
employers to control and prevent sexual harassment by adopting
appropriate workplace policies. Further guidance as to the policies and
mechanisms that employers should establish is provided in Article 10
and Recommendation 206. The best practice is for employers to adopt a
comprehensive policy that includes all the elements listed in Table 1
below, which is drawn from these international standards.
As described above, ILO Convention 190 Article 10(b)
creates an obligation on Member States to ``ensure that workers have
access to safe, fair and effective reporting and dispute resolution
mechanisms,'' including at the workplace level.
Paragraph 7 of Recommendation 206 provides further
specification as to the components of an employer's workplace policy,
including that ``workers and their representatives should take part in
the design, implementation and monitoring of the workplace policy
referred to in Article 9(a) of the Convention, and such policy should:
a. state that violence and harassment will not be tolerated;
b. establish violence and harassment prevention programmes with, if
appropriate, measurable objectives;
c. specify the rights and responsibilities of the workers and the
employer;
d. contain information on complaint and investigation procedures;
e. provide that all internal and external communications related to
incidents of violence and harassment will be duly considered, and acted
upon as appropriate;
f. specify the right to privacy of individuals and confidentiality,
as referred to in Article 10(c) of the Convention, while balancing the
right of workers to be made aware of all hazards; and
g. include measures to protect complainants, victims, witnesses and
whistleblowers against victimization or retaliation.''
Article 1010's directive to employers that they adopt measures to
prevent and stop sexual harassment is not sufficiently specific to meet
the international standard. However, some Chinese localities have
provided greater detail on employers' obligations in this area. For
example, the 2018 Jiangsu Regulation requires employers to formulate
rules and regulations prohibiting sexual harassment, conduct training
activities, and develop mechanisms to make filing complaints
accessible, handle them promptly, and protect the privacy of the
parties.\126\ The Shenzhen Guideline provides the most comprehensive
and detailed instructions for employers regarding sexual harassment,
which includes establishing channels for registering employee
complaints, procedures for investigating complaints, and rules for
disciplining wrongdoers. Employers can also draw upon the practices of
other countries. The labor inspectorate in Australia, for example, has
issued detailed guidance for employers on the steps necessary to
effectively manage and address the risks of workplace harassment,
including performing a risk assessment, implementing and regularly
evaluating a system for addressing incidents of harassment, conducting
training, and encouraging workers to report harassment.\127\
The best practice for Chinese employers is to adopt policies that
include the elements set forth in Table 1, which is drawn from
international standards and practices. Specifically, employer policies
should issue a zero tolerance statement; define what conduct is
prohibited; establish programs with measurable objectives; specify the
rights and obligations of employers and employees; establish processes
for employees to share and obtain information about GBVH; create
complaint channels; promise to investigate complaints promptly,
impartially, and thoroughly; encourage employees to report GBVH conduct
and participate in investigations; establish and provide information on
workplace dispute resolution mechanisms; commit to confidentiality;
promise to take corrective action whenever GBVH occurs; and prohibit
retaliation against anyone who reports or participates in
investigations of GBVH.
When the employer's investigation detects concerning behavior, or a
dispute has arisen, there should be a workplace-level dispute
resolution mechanism, which should include informal mechanisms like
mediation for appropriate cases. This is consistent with China's
general system of labor dispute resolution, which calls upon
enterprises to form a mediation mechanism to resolve cases before the
parties resort to arbitration or litigation.\128\ Indeed, having a
zero-tolerance statement prohibiting sexual harassment in the workplace
and specific policies to thoroughly investigate complaints will not
only bring the employer in compliance with international standards and
local regulations; it may also be a crucial risk mitigation measure. In
the event that the employer dismisses the alleged harasser, evidence
demonstrating that the harasser engaged in prohibited conduct will be
critical for the employer's defense if the alleged harasser sues for
unjust dismissal.
The 2021 Shenzhen Guideline is a positive example for the rest of
China in this area. The document specifies what should be addressed in
an employer's policy and includes many of the elements outlined in
Table 1.\129\ Prudently, the Guideline also provides a model policy in
its appendix that employers can choose to adopt. Building upon these
good practices in the Guideline, China should provide specific guidance
at the national level on what should be addressed in a model policy
that complies with ILO Convention 190, provide a model policy for
adoption, and mandate that all employers adopt and continually update
such a policy.
Table I.--Key Components of an Employer Anti-GBVH Policy
Issue a statement that there is zero tolerance for
violence and harassment;
Define prohibited conduct consistent with the scope of
ILO Convention 190, including examples;
Establish violence and harassment prevention programs
with, if appropriate, measurable objectives;
Specify the rights and responsibilities of the workers
and the employer;
Establish processes for employees to both formally and
informally share or obtain information about GBVH;
Create and provide information on a GBVH complaint system
that includes multiple, easily accessible reporting avenues;
Issue a statement that the employer will conduct a
prompt, impartial, and thorough investigation;
Encourage employees to report conduct that they believe
may be prohibited GBVH and to participate in investigations;
Establish and provide information on workplace-level
dispute resolution mechanisms to address complaints, including
mediation in appropriate situations;
Commit to keeping confidential the identity of
individuals who report or are victims of GBVH and other information
obtained during an investigation;
Promise to take immediate and proportionate corrective
action where GBVH has occurred; and
Unequivocally prohibit retaliation against those who
report GBVH conduct or participate in investigations.
2. Conduct Training and Prevention Initiatives Within the Workplace
ILO Convention 190 calls upon employers to not only remediate workplace
violence, but also to take measures to prevent workplace violence. In
keeping with these legal standards, employers should identify where
risks of GBVH exist and take active measures to mitigate those risks.
Employers must also educate personnel about company policies and
procedures, and the individual's rights and responsibilities.
These measures are covered in Articles 4(2)(g), 9(c) and 9(d), and
11(b) of ILO Convention 190, with guidance on operationalizing these
provisions set forth in Recommendation 206, paragraph 8.
Article 4(2)(g) of ILO Convention 190 calls upon each
Member State to ``develop[] tools, guidance, education and training,
and raising awareness, in accessible formats as appropriate.''
Article 9(c) of ILO Convention 190 calls upon employers
to ``identify hazards and assess the risks of violence and harassment,
with the participation of workers and their representatives, and take
measures to prevent and control them.''
Paragraph 8 of Recommendation 206 provides specific
guidelines on workplace risk assessments: ``The workplace risk
assessment referred to in Article 9(c) of the Convention should take
into account factors that increase the likelihood of violence and
harassment, including psychosocial hazards and risks. Particular
attention should be paid to the hazards and risks that:
a. arise from working conditions and arrangements, work
organization and human resource management, as appropriate;
b. involve third parties such as clients, customers, service
providers, users, patients and members of the public; and
c. arise from discrimination, abuse of power relations, and gender,
cultural and social norms that support violence and harassment.''
Article 9(d) of ILO Convention 190 calls upon employers
to ``provide to workers and other persons concerned information and
training, in accessible formats as appropriate, on the identified
hazards and risks of violence and harassment and the associated
prevention and protection measures, including on the rights and
responsibilities of workers and other persons concerned in relation to
the policy referred to in subparagraph (a) of this Article.''
Article 11 calls upon Member States to ensure that ``. .
. (b) employers and workers and their organizations, and relevant
authorities, are provided with guidance, resources, training or other
tools, in accessible formats as appropriate, on violence and harassment
in the world of work, including on gender-based violence and
harassment.''
Within the workplace, employers should be required to provide
training to all relevant personnel. Sexual harassment training has
shown to have a significant positive impact on trainees' acquisition of
knowledge related to sexual harassment, their ability to identify
behavior involving sexual harassment, and their willingness to report
such behavior.\130\ Although some studies have criticized traditional
sexual harassment training as reinforcing gender stereotypes and being
insufficient on its own to prevent sexual harassment, well-designed
trainings have been found to contribute to the prevention and reduction
of sexual harassment in the workplace.\131\ In New York State and New
York City, for instance, annual sexual harassment training for every
employee is now a legal requirement.\132\ These governments also
provide a model online training course that can be shown to employees
to fulfill this requirement. However, even these online trainings could
be improved by conducting live, interactive trainings in which the
trainees can ask questions.
China should also consider requiring GBVH training for all
employees. The Shenzhen Guideline contains such an instruction, even
specifying certain topics to be covered with employees (such as how to
collect and preserve evidence) and topics for supervisors and managers
(like how to identify sexual harassment).\133\ China should consider
making this a national requirement and developing training materials
that can be easily adopted by employers. The ACFTU has already
developed some useful materials for this purpose--namely, a handbook on
gender equality that includes specific examples of how sexual
harassment might manifest in the workplace and who the potential
victims might be.\134\
c. recommendations for chinese workers' organizations
1. Engage in Tripartite Dialogue at the National and Local Levels to
Inform Inclusive Approaches to Address GBVH
ILO Convention 190 addresses the role of workers' organizations in
designing national approaches to address GBVH and all other forms of
violence in the world of work.
Article 4(2) provides that each Member State should adopt
``an inclusive, integrated and gender-responsive approach for the
prevention and elimination of violence and harassment in the world of
work'' should be done ``in consultation with representative employers'
and workers' organizations.''
Consistent with these standards, workers through their
organizations and trade unions should engage in tripartite dialogue at
the national and local levels to inform inclusive, integrated, and
gender-responsive approaches to address GBVH and all other forms of
violence in the world of work. Worker participation in framing
standards and practices should strive to include perspectives and
experiences from across sectors and workplace demographics, including
the specific concerns of workers across all ages, social identity
categories, and migration status.
2. Participate in Risk Assessments, and the Design and Monitoring of
GBVH Policies, at the Sector and Workplace Levels
ILO Convention 190 and Recommendation 206 call upon Member States to
require employers to engage workers and their representatives in
assessing the risks of violence and harassment in the workplace, and to
involve workers and their representatives in the design, implementation
and monitoring of the workplace policy. These instruments also call
upon Member States to support the use of collective bargaining in
reaching workplace agreements.
Article 9 of ILO Convention 190 requires that ``[e]ach
Member shall adopt laws and regulations requiring employers to take
appropriate steps commensurate with their degree of control to prevent
violence and harassment in the world of work, including gender-based
violence and harassment, and in particular, so far as is reasonably
practicable, to: . . . (c) identify hazards and assess the risks of
violence and harassment, with the participation of workers and their
representatives, and take measures to prevent and control them.''
Recommendation 206, paragraph 4 calls upon Member States
to promote the effective recognition of the right to collective
bargaining, and to ``support such collective bargaining through the
collection and dissemination of information on related trends and good
practices regarding the negotiation process and the content of
collective agreements.''
Recommendation 206, paragraph 7 call upon Member States
to specify that ``workers and their representatives should take part in
the design, implementation and monitoring of the workplace policy.''
International standards as well as China's domestic laws and
policies recognize that it is necessary to involve workers in
formulating workplace policies and governing the workplace. Workers
have the first-hand knowledge of the hazards related to GBVH and
therefore must be part of any effort to identify and assess these
risks; they are also most likely to be able to develop and evaluate
practical solutions to these problems. Accordingly, workers must be
engaged in identifying all forms of physical, mental, sexual or other
harm and suffering, as well as coercion, threats, retaliation, and
deprivations of liberty that may be occurring within the workplace,
including any gendered aspects of these issues.
In terms of formulating workplace policies, China's Labor Contract
Law already requires that when establishing or modifying any material
workplace policy, the employer must first engage in discussions with
either the staff and worker representative congress (``SWRC'') at the
enterprise level or all of the workers, and then ``consult . . . on
equal footing'' with the SWRC or trade union about the policy.\135\
Indeed, at least one provincial-level ACFTU branch has stated that the
topic of preventing sexual harassment in the workplace should be
introduced in all such employer consultations and a related provision
should be included in all collective contracts.\136\ In the past,
collective contracts in China will do little more than restate the
relevant legal provision. However, the trade union, SWRC, or other
workers' organization should instead strive to meaningfully engage in
identifying GBVH risks at the workplace and crafting policies that
address those specific concerns.
Trade unions and workers' organizations in other countries have
been successful in this exercise of identifying GBVH risks in a
particular sector and then effectuating change at the workplace. For
instance, janitorial workers in California--often immigrant women who
worked alone at night and were supervised by untrained, unaccountable
subcontractors--were able to negotiate for the inclusion of provisions
addressing sexual harassment in their union's collective bargaining
agreements, including a statement of zero-tolerance, complaint and
investigation procedures, a prohibition on retaliation, and a
prohibition on romantic relationships between supervisors and
subordinates.\137\ The trade union's efforts also led to the adoption
of a state law requiring janitorial employers to provide sexual
harassment and violence trainings.\138\ Examples like this may be
instructive for workers' organizations in China.
3. Provide Context-specific Education and Training to Workers About
Their Rights and How to Enforce Them
As referenced above, Article 9(d) of ILO Convention 190 calls upon
employers to provide training to workers on the hazards and risks of
violence and harassment, prevention and protective measures, and
workers' rights and responsibilities, while Article 11 requires Member
States to ensure that worker organizations are provided with
``guidance, resources, training or other tools, in accessible formats
as appropriate, on violence and harassment in the world of work.''
Recommendation 206, paragraph 23(b) further provides that Member States
should develop ``gender-responsive guidelines and training programmes .
. . to assist public and private employers and workers and their
organizations in preventing and addressing violence and harassment in
the world of work.''
Workers' organizations should not only ensure that employers are
fulfilling this obligation to conduct training and disseminate
information, but also provide their own trainings to workers. The
information provided to workers, wherever possible, should be tailored
to the specific sector of employment or the particular workplace. It is
particularly important that workers' organizations address issues that
an employer may be more hesitant or reluctant to emphasize, such as the
legal rights of workers and the availability of legal services or other
resources outside the workplace. The ACFTU has already demonstrated a
willingness to provide useful information about sexual harassment in
the workplace by issuing the aforementioned handbook.\139\ The ACFTU,
together with other workers' organizations, should build upon these
efforts. In addition, civil society actors with expertise on labor
rights, domestic violence, women's issues, or other relevant topics
should also be involved in training and educating workers.
d. recommendations for global brands
Global brands operating in China, like in other countries, can play
a role in countering the prevalence of GBVH in the world of work.
The most obvious place to start is at the company level. Brands
that are themselves employers should implement best practices at those
workplaces--such as implementing GBVH workplace policies that satisfy
the elements set out in Table 1 above--thus setting a model for
employers in that industry. If they have relationships with Chinese
suppliers, brands should ensure that their contracts require those
suppliers to also adopt these best practices.\140\
Brands should also be engaging in a due diligence analysis to
detect either the presence of GBVH or risk factors associated with GBVH
at their suppliers. Upon detecting any such issues, brands should take
action to mitigate any adverse impacts of those issues or address those
risks.
Brands must not only create policies and requirements on paper, but
incentivize and monitor compliance with those demands. Experts have
indicated that China's recent legislative measures directing employers
to prevent sexual harassment and address complaints have not translated
into action by domestic companies. Particularly as the law lacks any
``teeth,'' there remains little incentive for employers to act.
Therefore, external pressure from brands and multinationals may be
necessary to bring about action by suppliers. To ensure GBVH training
is done properly, committed brands can help design the curriculum and
pay for the training, including the workers' wages for that time.
Brands should also promote transparency by publicly reporting on
implementation of their policies, GBVH incidents identified and
remediated, the impact of purchasing practices, and strategies to do
better.
There have been some positive steps in this direction. The Asia
Society worked with the China National Textile and Apparel Council, in
a program funded by the Levi Strauss Foundation, to train 100 garment
factory line-workers and managers on workplace sexual harassment.\141\
Multinationals or industry associations should consider similar
initiatives with their suppliers. There are also NGOs and consultants
within China who are now seeking to conduct such workplace trainings,
but have trouble convincing employers of their value.\142\ Brands
should find ways to partner with these providers and persuade employers
to engage their services.
Finally, brands should use their influence to advocate for China to
ratify ILO Convention 190 and adopt policies that effectuate its
intent.
[Endnotes begin on the following page.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Witness Biographies
Leta Hong Fincher, Adjunct Assistant Professor, Columbia
University, and author, ``Betraying Big Brother: The Feminist Awakening
in China''
Leta Hong Fincher is a journalist and author of ``Betraying Big
Brother: The Feminist Awakening in China'' (Verso 2018) and ``Leftover
Women: The Resurgence of Gender Inequality in China'' (Zed 2014). She
won the Society of Professional Journalists Sigma Delta Chi award for
her China reporting. Dr. Hong Fincher is the first American to receive
a Ph.D. from Tsinghua University's Department of Sociology in Beijing
and is currently an Adjunct Assistant Professor at Columbia
University's Department of East Asian Languages and Cultures. She has a
master's degree from Stanford University and a bachelor's degree with
high honors from Harvard University.
Aaron Halegua, research fellow, Center for Labor and Employment
Law, U.S.-Asia Law Institute, NYU School of Law
Aaron Halegua is a practicing lawyer and research fellow at the
U.S.-Asia Law Institute's Center for Labor and Employment Law, NYU
School of Law. He has worked on various labor rights issues in the
U.S., China, and internationally for nearly 20 years. In 2021, Mr.
Halegua authored the report ``Workplace Gender-Based Harassment and
Violence in China: Harmonizing Domestic Law and Practice with
International Standards.'' Mr. Halegua has consulted for Apple, Asia
Society, the International Labor Organization (ILO), Ford Foundation,
and other organizations on labor issues in China, Thailand, Myanmar,
Malaysia, and Mexico. Mr. Halegua has an A.B. from Brown University and
a J.D. from Harvard Law School.
Mei Fong, Chief Communications Officer, Human Rights Watch and
author, ``One Child: The Story of China's Most Radical Experiment''
Mei Fong is Chief Communications Officer at Human Rights Watch and
a former Pulitzer Prize-winning Wall Street Journal China
correspondent. She is the author of ``One Child: The Story of China's
Most Radical Experiment,'' winner of a non-fiction award from the
American Society of Journalists and Authors, and is on Foreign Policy
magazine's Top 50 list of U.S.-China influencers. She has written for
and appeared in such media as the New York Times, the Washington Post,
CBS, CNN, PBS, and the John Oliver show.
Tursunay Ziyawudun, detention camp survivor and advocate for Uyghur
human rights
Tursunay Ziyawudun is a survivor of the Chinese government's extra-
legal arbitrary detention camps in the Uyghur region, and an outspoken
advocate for Uyghur human rights. Ms. Tursunay returned to her hometown
in November 2016 to renew her passport and was immediately swept up in
the Chinese government's ``strike first'' policies of harsh control and
collective punishment of Uyghurs. She survived more than a year in two
different concentration camps, suffering food deprivation, forcible
injections of unknown medicines, harsh interrogation and beatings,
forced political indoctrination, forced loyalty oaths, forced
renunciation of faith, and rape. As one of very few survivors of the
concentration camps who has reached safety in another country, she has
provided testimony to human rights groups, researchers, and journalists
investigating the Chinese government's atrocity crimes against Uyghurs
and other Turkic Muslim peoples.
[all]