“A call against the discrimination of 120 million Chinese citizens” 

An independent call for action from hepatitis B carriers who have suffered widespread discrimination

What happens when you suffer discrimination? No matter how hard you try, there’s no use at all. 

Just because you received some part of your identity (family, birth locale, height, illness) by birth, regardless of your free will or individual effort. 

Discrimination means denying one’s free will and individual efforts, and thus essentially causes despair in those discriminated against.

The first court case against hepatitis B discrimination

Songyue and the 120 million fellow hepatitis B carriers see this lawsuit as a war against the pervasive discrimination they suffer in society and in the job market.

By Han Fudong (reporting from Anhui Province)

At 9 am on 10 November 2003, Songyue (an online alias) arrived at the case-filing office of the Xinwu District People’s Court in Wuhu City, Anhui Province, where he solemnly submitted his written administrative complaint to sue the Personnel Bureau of Wuhu City. 

After scrutinizing Songyue’s complaint and phoning the court’s chief justice for approval, the case-filing office clerk explicitly told Songyue that the court had accepted his case.

Prior to this, Songyue never expected that he would become the protagonist in the first lawsuit against hepatitis B discrimination. He, and all the other 120 million hepatitis B carriers in China, have seen this lawsuit as a war against the biases and discrimination they have long suffered in society. 

Songyue’s 25th birthday happened to be 10 November 2003. As a hepatitis B carrier, however, he had just been denied his dream of becoming a civil servant, since the Personnel Bureau of Wuhu City decided that he fell short of the health requirements for the civil service. 

One of the demands listed in Songyue’s administrative complaint was that “the defendant rescind the specific administrative action of denial of plaintiff’s appraisal, and admit plaintiff’s appraisal and employment to a relevant position”. When interviewed by reporters, Songyue said that even if he won the suit, he might not take up a position at the County Commission Office, but rather start his own business.

A “one-five positive” diagnosis 

Songyue’s dispute with the Wuhu City Personnel Bureau began with the national civil servant exam held this June in Anhui Province, in which 1,954 applicants would be chosen to enter the civil service. 

Songyue, a graduate of a local college with a degree in environmental studies, applied for a position in the economic management division at the Wuhu County Commission Office. He placed first among applicants after passing both the written exam and in-person interview. 

On 17 November, Songyue went to the Tongling City People’s Hospital for his physical checkup. On the morning of 21 November, the Civil Servant Division of the Wuhu City Personnel Bureau notified him that he was disqualified from the civil service due to a “minor three positive” diagnosis [tested positive for hepatitis B surface antigen, hepatitis B e-antibody, and antibody to hepatitis B core antigen, potentially indicating an acute hepatitis B infection]. 

“I’ve been through multiple physical checkups before, and they all said I am “one-five positive” [tested positive for hepatitis B surface antigen and hepatitis B core antibody, generally meaning that the patient has recovered from a previous hepatitis B virus infection]. How could I suddenly become ‘minor three positive’?”

Songyue went to the Wuhu City Personnel Bureau and requested to see his test report, but he was denied. On 23 September, he applied and received permission from the Personnel Bureau for a re-examination. In addition to an official re-examination at the People’s Liberation Army No. 86 Hospital, Songyue also went to the Wannan Medical College Yijishan Hospital and the Wuhu City Second People’s Hospital for a so-called “two-and-a-half pair” hepatitis B test [a set that includes tests for the hepatitis B surface antigen (HBsAg) and surface antibody (HBsAb), the hepatitis B e-antigen (HBeAg) and e-antibody (HBeAb), and total antibody to hepatitis B core antigen (HBcAg)]. Tests at both these hospitals returned with a ‘one-five positive’ diagnosis. 

On the morning of 26 September, a Mr Chen from the Wuhu City Personnel Bureau called Songyue to report that the test result from his re-examination was the same as the initial result, and therefore he was disqualified from the civil service. Upon Songyue’s insistence, Mr Chen showed him the two test reports.

Sonyue saw that the report from Tongling City People’s Hospital showed a “minor three positive” diagnosis. However, the report from the re-examination at the People’s Liberation Army No. 86 Hospital showed “normal liver function, but failed ‘two-and-a-half pair test'”, which further stated that the failure was due to a “one-five positive” instead of a “minor three positive”.

Songyue immediately got into a heated argument with Mr Chen. According to Songyue, “they insisted that they didn’t know what the standards were, if the hospital said I failed the test, then I failed the test.” When asked if a “one-five positive” diagnosis met the criteria for disqualification as outlined in the Anhui Provincial Physical Examination Guidelines for Civil Service Recruitment, officials at the Wuhu City Personnel Bureau never gave a clear answer. 

In Songyue’s view, according to Article 2, Item 4 of the Anhui Provincial Physical Examination Guidelines for Civil Service Recruitment, seven types of “failed two-and-a-half pair test” were grounds for disqualification, but “one-five positive” was not listed as one of the seven types of failed tests.

That very night, Songyue drafted a complaint to the Anhui Province Personnel Department. The next day, his father made a trip to the provincial capital Hefei City just to deliver the complaint to the provincial authorities, yet the complaint failed to make its intended impact.

In the name of the Constitution

Songyue decided to apply for an administrative reprieve. Immediately after the National Day holidays, Songyue went to the Civil Servant Division of the Anhui Province Personnel Department, but an official there rebuked him: “Why are you leapfrogging immediately to administrative reprieve? You need to go through complaints and reports first.” 

“I felt very dejected for quite some time, since I thought there were no more remedies,” said Songyue. 

After receiving encouragement from hepatitis B carriers around the country, on 18 October, Songyue sent an administrative reprieve application to the Legal Affairs Division of the Anhui Province Personnel Department via courier service, which was the first administrative reprieve application received by the Anhui Province Personnel Department this year. 

However, he received a rejection notice at the end of October, which stated: “The application falls outside the range of acceptable applications defined by Article 6 of the Administrative Reprieve Act; the decision that the applicant failed the physical examination was made by the examining doctors and hospital, not by officials at the Wuhu City Personnel Bureau.” 

When this decision came down, Professor Zhou Wei of the Sichuan University Law College, who had previously served as legal counsel in a height-based anti-discrimination lawsuit, decided to take on Songyue’s case pro bono. 

In his lawsuit filing against the Wuhu City Personnel Bureau, Songyue stated, “As an authority responsible for the testing and recruitment of civil servants, the defendant decided that the plaintiff was disqualified from civil service based solely on the fact that the plaintiff’s physical examination report showed a ‘one-five positive’ diagnosis. This was a malicious and discriminatory specific administrative act against the plaintiff that violated the national government’s legal duty that all citizens are ensured human rights and equal treatment under the law. The discriminatory act is a violation of Article 33, Section 2 of the Constitution, namely ‘All citizens of the People’s Republic of China are equal before the law’, and is a serious violation of the plaintiff’s legal rights. The defendant’s action has deprived the plaintiff of his qualification to the civil service and his right to work, and thus the defendant should bear relevant legal responsibility.” 

According to Professor Zhou, he will argue that the case concerns constitutional rights. Lu Jiefeng, another one of Songyue’s legal representatives and a class of 2001 student at the Sichuan University Law College, told reporters that the Anhui Provincial Physical Examination Guidelines for Civil Service Recruitment itself is unconstitutional, but according to the Administrative Litigation Act, an abstract administrative action that follows such guidelines as in the present case cannot be the subject of litigation. Therefore, they will argue that the specific administrative action taken by the Wuhu City Personnel Bureau was illegal, and use this as a starting point for protecting the rights of hepatitis B carriers.

Pervasive discrimination

According to sources, during this round of civil service recruitment at Wuhu City, Songyue was not the only applicant to be disqualified as a hepatitis B carrier; however, the other three chose to remain silent.

Prior to Songyue’s suite against the Wuhu City Personnel Bureau, another applicant in Ma’anshan City, Anhui Province also filed a lawsuit. In this case, Xiyun (an alias) sued the hospital that conducted the physical examination, not the recruitment authorities. Deliberations on this case will begin on 20 November. Even though the recruitment authorities have already told Xiyun that he will not be accepted, he nevertheless holds a sliver of hope.

At the time of writing, the Wuhu City Personnel Bureau has not yet submitted a statement of defence. However, Mr Chen from the Bureau’s Civil Servant Division did state that they will submit a statement within the legally required deadline.

Mr Chen still firmly believes that it is irrelevant whether the Anhui Provincial Physical Examination Guidelines for Civil Service Recruitment are reasonable, since the Personnel Bureau can only follow the standards set by their superiors at the province level, and thus the Wuhu City Personnel Bureau did not break the law.

According to Shi Ganlin, director of the Anhui Province Personnel Department’s Civil Servant Division, in accordance with the Provisional Guidelines for Recruiting National Civil Servants, applicants must be “of good physical health” and “physical examination requirements and passing  standards shall be determined by the recruiting authorities based on the demands of the relevant job positions.” This was the legal basis on which Anhui Province Personnel Department issued their Physical Examination Guidelines.

Shi further notes that positions at certain administrative authorities also follow the physical examination guidelines for civil servants, but there are no universal guidelines for general positions. However, this reporter has learned that there are strict limits on hepatitis B carriers for general job positions as well.

Discrimination against hepatitis B carriers is not just limited to administrative and general job positions: according to an employee at the Wuhu City Human Resources Centre, local businesses vary in their health requirements for their employees. Although some require a physical exam while others do not, those that do require physical exams generally reject hepatitis B carriers.

Edited by Li Shuguo