性别认同和性别表达歧视之解决——从我国首例跨性别歧视案说起

How to Solve Discrimination of Gender Identity and Gender Expression in Employment——Starting From the First Case of Discrimination of Transsexual in China's Mainland

我国首例跨性别雇佣歧视案揭开了雇佣领域性别认同和性别表达歧视之面纱,而将性别认同和性别表达歧视问题纳入一般人格权纠纷之侵权法路径解决,其妥适性存疑。现行一般人格权规定及人格权特性、举证责任等,既不利于受歧视人维权也不利于法院说理,将其纳入性别歧视等反歧视法律框架下解决或更可行,而性别认同法律承认并非认定性别认同和性别表达歧视问题之先决条件。我国应尽快独立增设(就业和职业)歧视立案案由,以应对日益增多的歧视案件而非在一般人格权纠纷案由项下下设相关案由。

The first case of discrimination of transsexuals with respect to gender identity and gender expression in the process of employment in China's Mainland was approached through tort law in the name of general personal rights dispute, this article explores its properness. Due to the provisions, attributes of general personal rights and the burden of proof, such approach is not conducive for claimant to safeguard his/her rights and interests and for the court’s reasoning while adjudicating such cases. The author suggests that it is more suitable to solve such issue within the framework of anti-discrimination laws and should establish the independent cause of action for employment and occupation discrimination to substitute the cause of action of general personal rights and points out that legal recognition is not a premise for determination of discrimination of gender identity and gender expression.