Preliminary Observations and Conclusions of the Working Group on the issue of discrimination against women in law and in practice: End Visit to the People’s Republic of China from 12 to 19 December 2013

Beijing, 19 December 2013

China is unique in its long history of culture, language, art, political philosophy and experience of different phases of global development, conflict and commerce. The Working Group is fully aware that it is conducting its dialogue with the Chinese government and people in a special context. China has overcome daunting challenges and has set world records for growth and poverty reduction. China determines the destiny of one fifth of the world's women and has exceeded the 2015 Millennium Development Goals in increasing the level of education for girls and in reducing maternal mortality. The Working Group commends the Government of China and the All-China Women Federation in their consistent efforts to improve the lives of women.

During its eight day visit, the Working Group, represented by Ms. Frances Raday, who currently heads the expert group, and Ms. Kamala Chandrakirana visited Beijing, Shanghai and the Xishuangbanna Dai Autonomous Prefecture in Yunnan province, to gather first-hand information on issues related to the situation of women, in particular in the area of economic and social life. It engaged in constructive dialogue with Government officials at national and local levels, representatives of civil society organisations, as well as experts, academics and the UN system.

China has made remarkable strides in improving women’s lives and has put in place a framework of law and policy to eliminate discrimination against women, in the Constitution, the Protection of Women's Rights and Interests Law, the Marriage Law and the Promotion of Labour Law, the Labour Contract Law, amongst others.

Despite these impressive accomplishments, the women of China still lag behind men in political and economic participation. These gaps are the result of persistent discriminatory practices, stereotypes and insufficient implementation of laws prohibiting discrimination against women. Furthermore, the current concept of gender equality emphasises the protection of women and does not fully include the empowerment of women. Empowerment of women is an essential component of gender equality. The Working Group calls upon the Government to define gender equality as including women’s rights to participate on a basis of equality with men, at all levels of political and economic life and decision-making.

Despite successfully achieving the Millennium Development Goals on girls’ education and maternal mortality, the Working Group is concerned that China’s Gender Development Index has not increased concurrently with the rise in the Human Development Index, while the Gender Empowerment Measures have even dropped. For all Chinese women to have an equal chance to achieve the “Chinese dream”, eliminating discriminatory practices and empowering women are matters of urgency. The Working Group sees the need for a special institutional mechanism consisting of independent experts to carry out a comprehensive review of the gender impact of existing laws and policies, to address individual complaints from women who experience discrimination, to provide input into the drafting of new laws and policies, and to recommend an agenda for change.

A comprehensive gender policy should be integrated into the agenda for reform announced at the Third Plenum of the 18th CPC Central Committee. A central aspect of the agenda for reform is an intensification of the shift to a market economy. Inherent in the transition to a market economy is a risk of a negative impact on women as it involves privatization, reduction of public service jobs, reduction of public care services for dependent children and sick or disabled adults and increased pressure on women to take precarious employment. There is an increased need in the new market economy to ensure women's equal opportunity to participate as employees in decent work in the formal labour market, equal access to housing, land, credit, government procurement and tertiary education. In this context, the Working Group appreciates the inclusion in the reform agenda of the aim to distribute the gains of the past 30 years equitably and to increase social protection floors for all the people of China. These goals have a special significance for the future welfare of women, who are like all women globally, disproportionally vulnerable to poverty and violence. The Working Group calls upon the Government to further examine the impact of a transition to a market economy on women and improve ways to achieve this transition without sacrificing decent work and living conditions, social protection floors and health services. Women’s full and effective participation in the design and implementation of macro-economic polices is essential to achieve these ends.

New, unprecedented – and possibly unpredictable – challenges are arising, especially with regard to the burden of care for dependant adults and for children. Although care functions should be shared by women and men, research shows that in China, as in other countries, the major share of caring is performed by women. Without special measures put in place, the increasingly aging and mobile society will produce an even heavier burden on Chinese women. The Working Group recommends that men should be encouraged to share the care burden, including by the introduction of an improved paternity leave.

The Working Group is of the view that it is imperative that China’s macro-economic policy integrate a holistic, effective and coherent national care economy in order to deal with the looming care crisis. However, recent trends to privatisation of child care for toddlers under the age of three shift the costs of childcare to the family and produce a counter-incentive to women's participation in the labour market. Solutions which may be adopted in order to implement a care economy include establishment of state funded care institutions for the elderly and for children from lower and middle income families, provision of domestic and care services for communities and support for provision of care services by grandparents. The Working Group emphasises that care facilities should be accessible, affordable and of high quality. Domestic and care workers, almost all of whom are women, should be protected by a legal and policy framework that promotes decent work standards in line with ILO Convention No. 189 on this issue.

The care burden is accentuated by the ageing society. A large proportion of the elderly population is women. The Working Group commends the Government on its introduction of a remarkable system of universal non-contributory pensions. This is an indispensable requirement to prevent older women from falling into poverty. The Working Group recommends that this should be retained as a basic right even after the move to contributory pensions, as women are disadvantaged in the accumulation of contributory pension benefits because of lower incomes and interrupted career patterns. In this context, the Working Group calls on the Government to cancel mandatory early retirement of women, as it increases older women’s poverty, and to allow those who are willing and able to do so to continue working to the same age as men.

The Working Group highly commends the Government for introducing a minimum wage, 14 weeks paid maternity leave and for establishing a legislative framework to prevent discrimination against women in employment. However, it is concerned that there is discrimination against women in recruitment, wages, and dismissals, particularly on grounds of maternity. The Group has received reports of discriminatory job advertisements in several sectors. Research shows that the gender wage gap in annual income has increased in the past 20 years, especially in rural areas and in the private sector rather than in state owned enterprises, indicating that the move to a market economy is likely, in the absence of preventative measures, to increase the gender wage gap. Occupational segregation is a major factor in the wage gap. The Working Group calls on the Government to stipulate that discrimination includes direct and indirect discrimination and that the right to equal pay is not only for equal work but also for work of equal value. Equalising women's wages with men's wages is an essential part of the process of reducing income inequalities in China. Given the high percentage of women employed in the informal labour market, the Working Group encourages the Government to take measures to extend protection for decent work to this sector.

The Working Group appreciates the attention given by the Government to the special needs of rural women, women with disabilities and some ethnic minority women, especially in this time of economic and social transformation. Other categories of women who are vulnerable to discrimination and violence equally require effective and empowering protection measures, such as women in detention, refugee women, women living with HIV/AIDS, and women of diverse sexual orientation and gender identity. The Working Group emphasizes that the application of a protective approach towards vulnerable groups should be developed into a rights-based approach that guarantees all women’s full and effective participation in economic, social and political life.

The Working Group welcomes the drafting of a comprehensive law on violence against women which should be enforceable and should define this crime in a way that includes all forms of violence against women and girls. Such law should also increase the availability and quality of support services, such as shelters, legal aid and medical services which are currently insufficient to meet the demand nationwide. The Working Group received reports of cases of women who, while acting in self-defense in response to domestic violence, had received harsh punishments. The Working Group notes the 2008 Supreme People’s Court guidelines for handling matrimonial cases involving domestic violence, which recommends leniency and issuing of protection orders. The Working Group welcomes the fact that some provinces have taken the lead in concretizing these guidelines and making them enforceable through local regulations and urges the Government to secure their extension to all women in China under the new comprehensive law.

Effective implementation of laws to prevent discrimination against women, and in particular the constitutional gender equality clause, the Protection of Women's Rights and Interests Law, the Marriage Law,the Promotion of Employment Law and Labour Contract Law, amongst others, depends on access to justice and redress in cases of violation. The Working Group has been informed of a perception in the legal community that these laws are not actionable and hence there are very few court cases. The primary mode of addressing violations is by mediation, which is a much valued way of resolving conflict as it results in an agreed solution between the parties. However, the Working Group emphasises that the availability of mediation does not obviate the need for access to court for a determination on the basis of the rule of law. Violations of women's human rights should be universally actionable in the courts and interested parties other than the direct victim should be allowed to bring suit. The Work Group emphasises the importance of capacity building to increase gender responsiveness of judges, prosecutors, police and lawyers.

China’s capacity to address the challenge of eliminating discrimination against women depends on the free flow of information and on open democratic debate. The Working Group commends the Government’s growing openness to civil society organisations and calls on the Government to provide guarantees for freedom of speech, expression and assembly for all, including for women who are defending their rights and interests on an individual basis or through collective action. The Working Group recognises the important role of China’s growing civil society organisations in raising responsiveness on women’s issues by decision makers in government and the CPC. It calls for support for such organizations by the Government and the international community However, the Working Group is concerned over reports of repressive measures taken against dissenting voices.

The imperative for full integration of a gender sensitive policy framework into China’s deepening reform agenda, including by implementing laws which prohibit discrimination against women and by incorporating an empowering care economy into macro-economic policy, requires the full and effective participation of women in political and public life at all levels. Currently, quotas apply to village committees, which have administrative rather than decision-making powers, and quotas have been adopted in a few provinces. The Working Group is concerned that Chinese women’s participation in top decision making positions in government and in the CPC is consistently low, both at the provincial and national levels. Urgent action is necessary to ensure the equal participation of women in top decision-making bodies, including by the use of quotas.

The Working Group calls on the Government of China to implement its law and policy to prevent discrimination against women in a holistic and accountable manner. At this crossroad in the lives of China’s women, the Working Group calls on the Government to ensure the gender responsiveness of its reform agenda.
Finally, the Working Group sincerely thanks the Government for its cooperation prior to and during the visit and all the interlocutors for their time and availability in discussing issues related to its mandate.

The Working Group will present its final conclusions and recommendations stemming from its visit in its report to the Human Rights Council in June 2014.