What’s new in Draft 2 of the Law on the Protection of Women?

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS –THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS. PAGES WITHOUT IMAGES ARE WORKS IN PROGRESS.

English中文(简体)

This post is largely aimed at identifying and discussing some of the recent changes between the first and second drafts of revisions to the Law on the Protection of Women’s Rights and Interests rather than discussing the overall content of the law.

Generally, there have not been changes in the overall character of the law, which while clearly intending to protect and empower women, contains assumptions about the identity and needs of women that often come off as condescending. The law consistently addresses the rights of women in terms of the rights of men. Putting aside questions of whether such a binary sex division is appropriate, this approach makes men the ‘default’ and women ‘the other’.

This “otherness” is phrased as a recognition of women’s “specialness” deserving of recognition and protection. The specialness is not presented as coming from the need to acknowledge and address the long history of societal discrimination, but as an inherent trait of women, giving them special needs. At times, this seems limited to physical differences of men and women, such as the law’s provisions encouraging the provision of reproductive healthcare, menstruation products, and even adequate toilet capacity in public restrooms.

There is the risk, however, that ‘recognizing’ differences can blur into ‘insisting on differences’, and the law seems to struggle with determining areas where people should be treated equally, versus areas where differences require special accommodation. One can see an example of how such thinking might play out in the recent Family Education Law, which calls for women to play their “special role in promoting the family values of the Chinese people and establishing positive situations.”

Some of these issues could be resolved by reframing the law as a Law on Equality of the Sexes, or even something more directly aimed at rectifying past discrimination against women. As is, the law stands alongside the Law on the Protection of Minors, Law on the Protection of the Elderly, and Law on the Protection of Persons with Disabilities, as a law aimed at protecting a vulnerable population.

CHANGES IN THE DRAFTS

1. Restructuring

The Chapter on women’s personality rights and interests has been renamed to include rights in their person as well, and moved up from chapter VI to Chapter III. The official report on the revisions says that this was to greater emphasize the protection of these rights. In terms of content, the Chapter already included content on physical protections for women despite its name, but both types of rights are now more clearly expressed, including a new clause that women’s “personal dignity: is inviolable”.

The section on remedy measures and legal responsibility has also been divided into two chapters for clarity.

2. Removal of Authorization of Temporary Special Measures.

The final paragraph of article 2, allowing that the state may employ temporary measures to bring about equality between men and women, has been entirely deleted. This line had arguably suggested a more positive approach to ensuring equality in the areas covered within the Law, by allowing temporary protection even beyond the law to be enacted as needed to rectify existing problems.

The revision work report suggests that it was deleted in response to comments that it was unclear what was being authorized, and that China already had a full and functional system of protections that could be enforced. This second explanation seems echoed in other deletions of provisions that may have been read as qualifying or disparaging China’s commitment to women’s rights, such as article 1’s basing the law in the context of ‘national conditions’, or article 2’s call to ‘gradually improve’ relevant systems.

3. Preventing Human Trafficking

The recent case of a rural mother of eight found living chained in a makeshift shelter brought on public calls for improved legal protection for victims of trafficking. Several revisions to the draft are said to be in response to this public concern and an attempt to address the persistent problem of human trafficking. The specific measures often relate to previously ongoing reforms, although their proposed inclusion in the law is new.

These include the addition of two paragraphs in article 24 (formerly 49), creating an obligation to report suspected trafficking to police for various public-facing agencies including marriage registrars and also calling for women’s federations to play a more active role in collaborating with police. China’s most recent Action Plan for Combatting Human Trafficking also singles out marriage registries as an important link in the detection of trafficking, calling for them to better verify the parties’ identities, and immigration details where foreign citizens are involved. In the high-profile case described above, the victim’s marriage had been unlawfully registered using fake identification documents, and without her being present.

The newly added article 28 also imposes greater obligations on hotels for monitoring and reporting all potentially illegal conduct by guests that is harmful to women’s rights. While described as part of the response to recent trafficking cases, this reporting requirement is broader and would cover more offenses including prostitution and sexual assaults. The provisions follow recent revisions to the Law on the Protection of Minors (article 57) similarly requiring hoteliers to report suspected misconduct to police and also to verify the relation of persons checking in with minors. It is also reminiscent of a provision contained in the Human Trafficking Action Plan on mandatory reporting by hoteliers, which is limited to suspected trafficking but also includes a broader range of mandatory reporters such as transit stations, airports, and entertainment venues.

A final minor change in language in article 48 concerns the trafficking of young girls. In the list of prohibitions on the mistreatment of girls, the word 售卖 (sale) was changed to 买卖(buying and selling, conducting transactions). One of the key sources of public anger has been that the purchasing party is subject to lesser penalties in human trafficking cases, also something raised in the trafficking action plans, and this may be intended to keep the focus on both sides of trafficking transactions.

4. No More Sex Education?

The earlier draft called for schools to provide sex education for female students, along with protections from sexual abuse and harassment, but this entire paragraph was removed. Fortunately, this seems to be because the section was included instead in the Law on the Protection of Minors (article 40p2) instead, and applied to all minors rather than only women.

5. School background check system

A new requirement has been added in article 26, that schools conduct background checks when hiring staff or bringing in outside volunteers, social workers, and so forth. This is an expansion of a background check system for incoming teachers and staff that was the focus of 2020’s Opinions on Establishing a System for Making Inquiries into Information on Sexual Offenses by Entering Teachers and Staff. The Law on the Protection of Minors has also already added a requirement that a check for records of a wider range of crimes, including violence, trafficking, or sexual offenses be conducted for any positions working closely with children, but did not mention volunteers and other outside personnel. The Ministry of Education did include such outside personnel in its rules for protecting minors (article 36), but only required that they sign a pledge, rather than make inquiries into the national database, perhaps because they felt they lacked a legal basis.

The addition to the draft Women’s Protection Law does seem to be the first time a law contains this specific content. This corrects the omission in the earlier authority, but raises the question of whether this law is the appropriate place to do so. Screening teachers is intended as a protection of all children, not just females, and as with the relocation of sex education mentioned above, it is better suited to rules for the protection of minors.

6. Childbirth Leave

While very brief, a new paragraph has been added to article 50 calling for the state to develop a childbirth leave policy that ensures the rest of both pregnant women and new mothers, beyond the existing maternity leave system.

7. Custody of children born as a result of sexual assaults:

A provision in article 54 of the earlier draft had provided that where a pregnancy resulting from sexual assault was not terminated, the mother may choose to not be its guardian, and unilaterally decide to place the child for adoption. This had seemed to be a fairly clear stance taken to protect the mother and child in such cases where the offender sought to block adoption or gain custody rights, even if read as limited to situations where the offender was convicted. The work report says that it was removed because it conflicted with existing rules on adoption and guardianship in the Civil Code and other laws.

8. Replacing “Social Groups” with “Mass organizations”

Throughout the draft, the term “Social Groups” has been replaced with “Mass Organizations”. Mass organizations are government-created organizations with dedicated purposes and constituencies such as the women’s federations, communist youth league groups, disabled persons’ federations, and labor unions. Social Groups by contrast are lawfully registered, but more purely citizen organized, non-profits that pursue a common goal of their membership.

This subtle change jumps out both because of its frequency and concern that the role of civil society may have been reduced. On closer look, however, it appears less consequential. Specifically, there are seven articles impacted by this change:

  • Article 3 involves the whole-of-society approach to protecting women’s rights and interests and lists the various types of entities with this general obligation. The change is less likely to be important here as the obligation is vague and “other organizations and individuals” are still included, covering civil society.
  • Article 7 seems to have always been intended to instruct mass organizations to focus on women’s rights in their work, and may have included social groups as a terminology error. It specifically lists women’s federations, communist youth leagues, and disabled persons’ federations, before mentioning social groups (now mass orgs) in a catch-all provision.
  • Article 11 previously encouraged various entities, including social groups, to carry out publicity and activities on promoting women’s rights. Such promotion has now been made a mandatory requirement, rather than merely encouraged, and in addition to changing social groups to mass organizations, “other organizations and individuals” has also been removed. It may be that the clearer requirement is simply not realistic for most organizations and individuals, including social groups, which are already restricted in their charter and registration as to the scope of activities they can conduct.
  • Article 17 involves cultivating female cadres and leadership in various entities. Cadre is a term generally reserved for governmental positions, making it less suitable for use with social groups as opposed to mass organizations. The same could be said of ‘enterprises’ which are still included in the list, but state-owned enterprises do use the term.
  • Article 42 involves ensuring women’s equal rights in scientific and cultural activities. The entities charged with implementing state policy in this area are largely government-controlled, which made social groups stand out. Enterprises are included, but again only as part of the set phrase 企业事业单位 enterprises and public institutions, which often is meant to include only state-owned enterprises.
  • Article 68 concerns the duty to stop and prevent domestic violence. Here the change is probably less consequential because ‘other organizations’ are still included, and the Domestic Violence Law provides more specific duties.
  • Article 79 encourages entities to participate in establishing service hotlines for protecting women’s rights. While social groups was changed to mass organizations here are well, the broader category of “social organizations” was simultaneously added to the groups helping establish service hotlines.

Given that impacted sections of the law don’t seem inappropriate, contain no prohibitions, and retain room for participation by unspecified organizations and individuals as well as a general call for ‘social forces’ to participate in women’s health issues in article 33, the impact of the change is probably not so serious.

9. Further changes

This list of changes is regrettably incomplete but reflects some of the more critical issues. To see a further comparison of the drafts, click the link below for a detailed chart.

About China Law Translate 1271 Articles
CLT 是一个能够让说英语的人群进一步了解中国法律,众包、众筹的法律翻译项目。

1 Trackback / Pingback

  1. Women’s rights taking centre stage in China

Leave a Reply

Your email address will not be published.


*