Women learn about anti-domestic violence law and women’s protection law at a law popularizing event held on March. 8, 2023 in Yangzhou City, Jiangsu Province. Photo: CFP

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The Law of the People’s Republic of China on the Protection of Women’s Rights and Interests (hereinafter referred to as “Women’s protection law”) was adopted at the Fifth Session of the Seventh NPC in April, 1992, and promulgated in October, 1993. The Standing Committee of the National People’s Congress (NPC) carried out the first large-scale revision of this law in 2005, with some small adjustments made in 2018. The 2022 draft revision passed in the 37th session of the 13th NPC Standing Committee is the second large-scale revision of the women’s protection law.

The basic principles of this law are the fundamental norms that guide the legislation process of the Law on the Protection of Rights and Interests of Women. They represent the mainstream view on women in a socialist Chinese society and the value orientation of China’s legislation. The principles represent the starting point and fundamental guiding philosophies of Chinese legislators for bringing out women’s protection law. They are also important references for the explanation and execution of the law. The principles can make up for what the law has not explicitly stipulated or help explain the functions of certain regulations. In the past 30 years, the principles of women’s protection have gradually evolved. 

 

Evolution of principles

Three basic principles were established when the women’s protection law was formulated in 1992. The first is equal rights between men and women. Various regulations were made to incorporate women’s equal rights with men comprehensively and systematically into law in terms of politics, culture, education, work, property, personal rights, marriage, and family life. 

The second principle reserves special protection for women’s rights and interests. Considering that women and men are different physically, and inequality still exists in reality, it is necessary to take legislative measures to provide targeted protection for women, and gradually set up social security system for them. This will help to better safeguard women’s legal rights and interests. 

The third principle requires prohibition on and punishment for illegal acts that infringe upon women’s rights and interests. Legal means should be taken to ban discrimination against women, as well as abuse or harm. These three basic principles have been carried forward in the two large-scale amendments to the law. Meanwhile, with a problem-based learning approach, the principles have evolved with the times by incorporating adjustments based on the practicalities of implementing each revision.  

The 2005 amendment added: “It is a basic state policy to realize equality between men and women. The state shall take necessary measures to gradually improve various systems for the protection of the rights and interests of women and to eliminate all kinds of discrimination against women.” This marks the first time that China has written into law that gender equality is the country’s basic state policy. The revision has also included eliminating various forms of discrimination against women as one of the fundamental principles of the women’s protection law. This regulation is highly meaningful to China as it develops and improves its legislative philosophies and the regulations for women’s protection law, as well as safeguarding women’s rights. 

Nevertheless, this principle was not specific about “discrimination against women,” resulting in ambiguous meanings and difficulty in law enforcement. This left a blank in the law, which was mentioned many times by the UN Committee on the Elimination of Discrimination against Women (CEDAW) in its suggestions and general recommendation for China’s report. In other words, the ambiguity was a key concern raised by CEDAW, urging China to improve related law, policies, and measures. 

The 2022 revision saw further amendments to the basic principles. First, Article 2 clearly stipulated that gender equality is China’s state policy, making it the first general provision among all. It has highlighted the country’s principal task of ensuring gender equality. Second, the new revision has added an explanatory stipulation to gender discrimination, i.e. “prohibit the rejection of or restrictions on women’s lawful enjoyment and exercise of various rights and interests.”

In the meantime, the new revision deleted Article 2, Section 4, “It is prohibited to discriminate against, ill-treat, abandon or cruelly kill the women.” The prohibition of discrimination against women has been singled out as an independent section, while “abuse, abandonment, mutilation” have been moved to Chapter III Personal and Personality Rights and Interests as a part of the regulations for protecting women’s rights of life, body, and health.

Connotations of discrimination

The 2022 revised law added “prohibit the rejection of or restrictions on women’s lawful enjoyment and exercise of various rights and interests,” which is a more condensed Chinese-style expression that echoes the definition of discrimination stated in “The Convention on the Elimination of All Forms of Discrimination against Women” (hereinafter referred to as “the Convention”). 

The Convention defined “discrimination against women” as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Obviously, in the Convention, the core of “discrimination” is the distinction, exclusion or restriction based on gender that hinders women from exercising their human rights and fundamental freedoms. 

In Chinese context, “discrimination” defined in women’s protection law can be interpreted as discrimination based on gender, which requires no additional emphasis. In other words, discrimination against women refers to any rejection of or restrictions on women’s lawful enjoyment and exercise of various rights and interests, which result in women receiving differential treatment and negative effects in the same or similar scenarios. 

These include but are not limited to three scenarios. First, women are treated differently when they have the same or similar conditions compared to their male counterparts, thus being denied equal opportunities or rights as men. Second, women are restricted to enjoy or exercise certain rights, or are imposed with stricter limits when trying to enjoy or exercise the same rights as men. Third, a neutral standard leads to different results based on gender difference, namely, policies, laws, or specific regulations can cause unequal results, even when they appear to be superficially equal. Nevertheless, not all differentiated treatments are discriminatory. Special protective measures to promote gender equality should not be considered discrimination.  

As a common social phenomenon, gender discrimination can be direct or indirect, form-related or virtual-related, obvious or well-concealed, multifaceted/intersected or structural/institutional. Hence, to dispel discrimination against women is to eliminate all forms of gender-based discrimination and all unequal treatment women suffer from in public or private areas, while safeguarding women’s human rights in all respects. We expect the supreme People’s Court and other related departments to come up with judicial interpretation, judicial precedents, and other related regulations for “discrimination.” This will help us better identify and help women who have been discriminated against and prevent future incidents, so as to promote true gender equality.

 

Principles of 2022 revision

The first principle of the newly revised law is equality. Gender equality is an important principle established by China’s Constitution. Over the past three decades, it has always been the primary principle of women’s protection law. The recent revision highlights the country’s responsibility of ensuring gender equality and women’s comprehensive development. Article 2 clearly stipulates that “it is a basic state policy to realize equality between men and women.” China must take necessary measures to promote gender equality, and further enrich and improve specific rules and regulations in each chapter to guarantee women’s rights and interests. Policies, laws, and mechanisms need to provide sufficient guarantees for women to enjoy their human rights, so that women and men can participate in social life, obtain development opportunities, and enjoy development achievements equally.

The second principle is the elimination of discrimination. Established in the 2005 women’s protection law, the principle was improved in the 2022 revision, making it an important fundamental principle of the law. Since the establishment of the PRC, China has made tremendous achievements in the progress of women’s course. However, due to historic and cultural influence, some backward concepts persist in today’s society, such as the preference of boys over girls or seeing men as superior to women. True gender equality can be obtained only when all forms of discrimination are wiped out, and all rejections of and restrictions on women are prohibited. Thus, China still needs to further its endeavors in unrooting the outmoded conventions and customs for women from their social and cultural soil. The elimination of gender discrimination demands the elimination of not only discriminatory regulations, behaviors, and practices, but also the roots of discriminatory thoughts. Meanwhile, a sound social environment that respect women and protects women’s rights and interests needs to be established. 

The third principle is special protection, which is a fundamental principle to which the women’s protection law has been adhering since 1992. While sharing the same legal rights as men, women must also be afforded special legal protection owing to the difficulties they may face due to their particular physiological characteristics. Special protection also refers to the social gender differences caused by society and culture. 

Specifically, apart from participating in social labor, women also bear the burden of reproduction and nursing infants as a result of their physiology. They play an irreplaceable role in human reproduction. Therefore, the law and social security system must give women special protection. Furthermore, the social differences between men and women that manifest in their respective socialization processes lead to a persistent social gender gap. This calls for more targeted mechanisms and measures to ensure women can enjoy special protection. The inequality in the forms can help realize equality in the outcomes, and eventually achieve substantial gender equality. 

These three principles are interconnected and complementary. The elimination of gender-based discrimination is the precondition for gender equality, while special protection is a method and measure for the same goal. The core of these three principles is equality between men and women, and the harmonious development of the two genders is the final goal and purpose of the women’s protection law. 

 

Xia Yinlan is a professor from the Institute For Human Rights at China University of Political Science and Law.

Edited by WENG RONG