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When Chinese lawmakers formulated well-intentioned stipulations allowing women to retire five years ahead of their male colleagues out of concern for women's health, they could not in their wildest dreams have imagined that their goodwill would be interpreted as gender discrimination decades later.
The stipulations, which have been practiced since the foundation of New China in 1949 and were written into various regulations after 1978, have recently been challenged by women, particularly white-collar professionals and civil servants, who are increasingly skeptical about their fairness.
UNUSUAL LABOR DISPUTE
Highlighting the conflict between old laws and new attitudes is an unusual labor dispute which occurred in Pingdingshan, some 950 kilometers south of Beijing.
On Monday, Pingdingshan's arbitration committee ruled for the defeat of Zhou Xianghua, who filed a complaint and accused her employer -- the Pingdingshan Branch of the China Construction Bank (CCB) -- of gender discrimination for ordering her to retire at 55.
The Committee said in its written rule that Zhou failed to provide sufficient evidence and legal basis to support her appeal and will have to shoulder a total arbitration fee of 420 yuan (about 52 US dollars).
The Committee said its rule is based on the Provisional Regulations on the Resettlement of the Old and Weak Cadres. The Regulations, promulgated by the State Council, or China's cabinet, in 1978, set down specifically the retirement ages for women and men employees working for enterprises, including the CCB.
According to the Regulations, the age of retirement for women employees is 5 years less than that of men. If a person has a worker's status, women's retirement age is 50 and men 55; for cadres, a woman retires at 55 and a man at 60.
Zhou, who became a clerk of the CCB branch in 1989 and a chief teller three years later, says she is healthy and competent to perform her job considering her energy and experience.
"When my unit (the CCB branch) told me to handle retirement procedure in January this year, I agreed and did what they told me, but did not give it independent thought," said Zhou.
Then she turned to her son, Li Hao, a law postgraduate from Sichuan University in Southwest China. After consultation with her son, Zhou swayed to her own thought and began to negotiate with the leader of the Branch's personnel office.
The Branch, however, dismissed her, citing "legal retirement ages" set in the state laws. Liu Xinhua, director of the branch's personnel office, said the retirement decision for Zhou tallies with the Retirement Regulations.
Zhou had no choice but to file a lawsuit. Li Hao and Li's law professor, Zhou Wei, become her legal representatives. The two agents said in their written arbitration application that Zhou's forced retirement violates the stipulations of gender equality prescribed in China's Constitution, Labor Laws, and related international laws signed by the Chinese Government.
They argued that the discrepancy in retirement ages for women and men is simply based on their sex, which should be seen as sexual discrimination.
The Committee, however, said in its ruling that it is not its responsibility to judge whether the Regulations violate China's Constitution, Labor Laws or related international laws.
Instead, it said that the Branch's decision to inform Zhou to begin retirement procedures tallies with the current retirement policy implemented in China.
Besides its legal contradictions, Zhou's two representatives also claimed that early retirement for women employees runs contrary to the reality of Chinese society. SOCIAL REALITY AND LEGAL RETIREMENT AGES
Zhou's two representatives argue that Chinese society has undergone a sea change since 1949, and especially since its reform and opening-up begun in 1978.
In the early years of New China, the Chinese government set different retirement ages for men and women to protect the interests of women because they were subject to the strain of bearing and rearing children, as well as the heavy burden of household chores. Also at that time, women were less-educated and their physique was deemed inferior to that of men, according to the two representatives.
But times have changed, they say. Thanks to China's economic boom and technological progress, many women have been relieved of a lot of hard physical labor, and they have fewer household chores to do now.
"More than that, women's physiques are now as good, if not better, than men's," said Li Hao.
"Women's life expectancy in China has significantly improved in the last several decades. In 1998, women's life expectancy was 73.1 years on average, 3.7 years longer than that of men. In 2003, women's life expectancy extended to 74 years," said Li Hao.
He also says that early retirement means economic loss since pensions for retirees are less than 70 percent of former salaries, and there are lower pensions for women employees as their proportion largely depends on the length of service and position at retirement.
Though as society changes, legal retirement ages set by laws and rulings remain static.
Apart from enterprise employees, people working for governmental institutions, such as journalists of The People's Daily, and civil servants also have legal retirement ages. Though enshrined in different laws, the discrepancy in legal retirement ages is the same -- women retire at 55 while men at 60.
Some Chinese jurists say the retirement laws contain elements of gender discrimination.
Wang Yunwu, a law professor with the Southwest China Institute for Nationalities, conceded that women's early forced retirement was originally aimed to protect women's interests.
"But in time, social conditions have changed a lot in China. Early retirement, to some extent, prevents women from bring their capability into full play, and could be regarded as gender discrimination," says Wang.
He said, furthermore, that women's early retirement could add more pressure to China's social security system.
Zhang Qianfang, a law professor at Beijing University, echoed Wang's opinion and regards compulsory early retirement for women legally as sexual discrimination.
"Today's China is totally different from what it was in 1978, and even in the 1950s. Women's life expectancy is higher than that of men. People are so different and diverse that some women are still energetic at 55 while some 55-year-old men might be unhealthy," Zhang said.
He also said early retirement can have a negative impact on women's income and career development, which comprises their quality of life. RETIRING AT SAME AGES?
Not only jurists have brought the discrepancy in retirement ages to task, government officials and politicians also speak ill of the policy.
Xia Yinlan, president of the China Family Law Association and also vice chairwoman of the Beijing Women's Federation, calls the women's retirement age a display of "inequality" and "a waste of talent".
Xia is not the only one calling for revising the compulsory early retirement for women. In the last several years, hundreds of proposals have been submitted at the annual sessions of the National People's Congress, or China's parliament, and the Chinese People's Political Consultative Conference, the country's top advisory body.
But while many are calling for the abolishment of compulsory early retirement for women, others disagree, arguing that extending women's maximum working age might aggravate the already-grim unemployment situation.
Zhang, of Beijing University, however, dismisses that argument.
"Increasing job opportunities is one of the major duties for governments at all-levels, and it is inappropriate to create jobs by ordering women to retire earlier, which is unfair to women," says Zhang.
As for those female workers engaged in labor-intensive industries or companies who wish to retire as early as the rules permit, Zhang says laws and regulations could be revised by taking both women's equal rights and their personal choices into consideration.
Though many people are speaking out and calling for the legal revision, Zhang admits it takes time. Since laws and regulations remain unchanged, he expected in early September the defeat of Zhou in her labor dispute.
But the case is nonetheless significant, he said.
"It may push forward rule of law in China since it is one of the first cases to bring the discrepancy in retirement ages into question and is drawing attention from people in law."
Zhou herself, as well as her two representatives, expects to be defeated. But Zhou says she does not care about the result.
"The change of law requires much time, and my retirement procedure has almost finished," says Zhou. "The purpose of my lawsuit is to stimulate people to think about the current retirement policy."
To this end, Zhou says that, though defeated, she might go further and sue the CCB Pingdingshan Branch in a local people's court.
(Xinhua News Agency October 24, 2005)
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