Henan Gender Discrimination Case Challenges Constitutionality of Retirement Regulations

October 26, 2005

A Henan woman lost a labor arbitration case in which she alleged that her employer's rule that she retire at the nationally-mandated age of 55 violates the Chinese Constitution's protection of gender equality, according to an October 17th Xinhua report. The 1978 "Temporary Measures on Providing for Old, Weak, Sick, and Handicapped Cadres" require women to retire at 55, and men at 60. Zhou Xianghua sued the Pindingshan branch of the China Construction Bank, her employer, in a labor arbitration proceeding. She alleged that the Temporary Measures violate Article 48 of the Chinese Constitution, which says that women are entitled to "equal rights with men in all spheres of life." The arbitration board ruled in favor of the bank and found that, according to the 1993 Regulations Governing the Settlement of Labor Disputes in Enterprises, it lacked the jurisdiction to determine whether or not the Temporary Measures violate the Constitution.

Zhou's representatives will continue to challenge the constitutionality of the Temporary Measures in court, according to an October 13 Southern Weekend report, and they hope to raise the issue before the National People's Congress Standing Committee (NPCSC). The outcome of their challenge is uncertain. Under the 2000 Legislation Law, only the NPCSC has the power to cancel or amend an administrative regulation solely because of a conflict with the Constitution. Chinese citizens have the right to petition the NPCSC for review of regulations that conflict with the Constitution, but they lack the right to compel such reviews. Chinese courts lack the power to review the constitutionality of laws and regulations, as noted in the CECC 2005 Annual Report section on Legal Restraints on Government Power.

Chinese academics and government officials have noted that the Temporary Measures discriminate against women. According to Zhou Wei, professor of law at Shanghai's Jiaotong University, the system of staggered retirement favored women when it was implemented by guaranteeing them early retirement and a generous pension. Zhou thinks that the system now endangers their right to work, according to an October 13 Southern Weekend report. The NPC acknowledged the need to address the issue of discrimination against women in the national retirement system during its revision of the Law on the Protection of Rights and Interests of Women in August 2005, but did not act to address this discrimination.