What a Gay Flight Attendant’s Lost Discrimination Case Says About … – The Diplomat
Last week, it was made public that a Shenzhen court in March 2022 dismissed a high-profile discrimination lawsuit brought by a gay flight attendant, Chai Cheng, against his former employer, China Southern Airlines, the world’s largest air carrier and a powerful state-owned company. Chai’s case is one of the latest – and most dramatic – chapters in the frustrated struggle of China’s LGBTQ community to obtain legal protection against discrimination.
Chai’s private life was thrust into the national spotlight in October 2019 when a security camera clip of him kissing a male China Southern pilot in his apartment’s elevator was leaked online. The pilot publicly claimed the video depicted Chai sexually harassing him. But soon more security footage and chat logs surfaced indicating that Chai and the pilot were consensually touching as part of an ongoing intimate relationship.
A third person then emerged – the pilot’s same-sex partner – who had threatened Chai, and, while pretending to be the pilot’s wife, blasted messages to China Southern employee chat groups disparaging Chai for having an “improper sexual orientation.”
The story’s twists and turns – and the idea of a same-sex love triangle involving a handsome flight attendant and pilot – piqued prurient curiosities on social media, turning the incident into a trending topic with over 440 million views. China Southern proceeded to ground Chai, and six months later fired him.
Chai then brought a labor dispute for $9,000 in lost wages, representing 90 percent of his income, due to not receiving any flight shifts after the incident.
Chai’s case, while exceptionally sensational, illustrates several of the challenges China’s LGBTQ community face in the workplace: being out is risky; the law provides little protection; and politics is inescapable.
Being Out Is Risky
Chai had hidden his identity for nearly five years at China Southern for fear of discrimination – a fear that proved to be well-founded. In a secret audio recording Chai made a few months after the incident, Chai’s supervisor called him “abnormal” and asked if he was a member of any “gay social organizations.” The supervisor warned that such groups “should not be allowed to gain leverage over our state-owned enterprise,” and fretted that Chai’s behavior was inconsistent with the growing emphasis in official propaganda on morality and “socialist core values.”
Experiences with discrimination like Chai’s are common. In a survey conducted by the United Nations Development Programme (UNDP) and the International Labor Organization in 2016, only 11 percent of LGBTQ respondents in China described their workplaces as “open and accepting.” A large nationwide survey conducted by UNDP in 2015 also found that only 5 percent of LGBTQ people in China are fully out in the workplace.
Deep fear of discrimination exposes LGBTQ employees to threats by bad actors – sometimes motivated by blackmail, other times revenge – to out them to colleagues.
The Law Provides Little Protection
Chinese law does not expressly prohibit discrimination based on sexual orientation or gender identity. Although China has twice declared at the U.N. that its laws protect LGBTQ people against discrimination, public awareness of these statements is low (in part because articles reporting on them have been censored). The statements are also contradicted by policies that include “homosexuality” in lists of banned content and define same-sex relations as a violation of public morals.
As such, few LGBTQ workers have made it to court after being unfairly fired, and even fewer have convinced courts that they were discriminated against.
In Chai’s case, China Southern, like most other employers, claimed it had a legitimate business-related reason for its decision, thus avoiding the politically tricky question about whether LGBTQ discrimination is legal or illegal. At trial, the company argued that it grounded Chai only out of concern for passenger safety, contending that Chai had become too upset to perform his duties, and that it feared passengers might cause a scene if they recognized him from the viral video. China Southern offered no evidence about Chai’s emotional state – in fact, after the incident, Chai had passed a psychological examination conducted by China Southern – and the scenario about raucous passengers was purely hypothetical.
Meanwhile, China Southern’s lawyers discounted Chai’s supervisor’s untoward remarks as merely reflecting his personal views, which did not inform the company’s decision.
China Southern, like all employers in such labor disputes, bore the burden to prove its claims to a “high degree of likelihood” (i.e., to 75 percent or 85 percent certainty). The ruling that the company met this heavy burden based on unsupported assertions contrasted starkly with other labor cases, in which courts have required much stronger evidence from employers – such as when workers have been discharged for committing sexual harassment.
Not all employers have been as strategic as China Southern. In a 2020 labor dispute, e-commerce giant Dang Dang sent an egregiously discriminatory letter to a transwoman employee whom the company had fired, calling her “Mr.” and telling her that she caused “moral awkwardness” among her colleagues. The court ruled that Dang Dang had illegally terminated the employee, stating that although the law has no express protections for employees who have legally changed their gender, such protections “should be within the meaning of the law.”
Politics Is Inescapable
The Shenzhen court was legally obligated to complete the case within six months, but it took almost two years after the trial to issue its judgment. Chai’s lawyers’ inquiries about the delay went unanswered. In isolation, the delay may seem to be a fluke, but over the past two years at least three other LGBT rights cases have been similarly put on ice without word.
Looking at the bigger picture, space for LGBTQ-related speech and advocacy in China is being squeezed down. LGBTQ groups are being cut off from funding, reporting on LGBTQ-related news is increasingly restricted, and policies such as banning “sissy men” in entertainment are sending strong signals about which kinds of citizens are “normal” and deserving of respect. The resulting chill is likely to leave LGBTQ people even more vulnerable to discrimination and with even less access to remedies.
Still, Chai is appealing his loss. Whether he will get a hearing or how long it will take in the current environment is unclear – just one of a growing number of unknowns for China’s LGBTQ community.