The legal retirement age refers to the retirement age stipulated in the Interim Measures of the State Council Municipality on Resettlement of Old, Weak, Sick and Disabled Cadres and the Interim Measures of the State Council Municipality on Retirement and Resignation of Workers (Guo Fa [1978] 104 document). 1On March 9, 1999, the Ministry of Labor and Social Security issued the Notice on Stopping and Correcting Issues Related to Handling Early Retirement of Enterprise Employees in Violation of State Regulations, further stipulating that the legal retirement age of enterprise employees is 60 years for men, 50 years for women employees and 55 years for women cadres. Engaged in underground, high temperature, high altitude, especially heavy manual labor or other jobs harmful to health, the retirement age is 55 years old for men and 45 years old for women, disabled by illness or non-work-related injuries, and completely incapacitated by the hospital appraisal and confirmed by the labor appraisal committee, the retirement age is 50 years old for men and 45 years old for women. These constitute the legal basis of retirement system for men and women at different ages in China. The Provisional Regulations on State Civil Servants stipulates that "the legal retirement age for male civil servants is 60 and that for female civil servants is 55."
The original intention of the Retirement Law for Men and Women at Different Ages is to protect women, but in practice, this intention has not been reflected, but it constitutes a "reverse difference". "Guo Fa [1978] 104" stipulates that female cadres can retire at the age of 55. In practice, "can" has become "should". In addition, with the increase in the proportion of women receiving higher education, the time for women to start employment is generally delayed. According to the current retirement age, women's participation in social labor is many years shorter than that of male workers. This has caused a waste of talents.
The retirement system for men and women at different ages mainly involves women's labor equality rights, which is the superposition of women's labor rights and women's equality rights. China's Constitution clearly stipulates equality between men and women. Article 13 of the labor law stipulates that "women enjoy the principle of equality with men." Article 22 of the Law on the Protection of Women's Rights and Interests stipulates that "the state guarantees that women enjoy equal labor rights and social security rights with men." Article 24 stipulates: "Women enjoy equal rights with men to enjoy welfare benefits." The legislative purpose of these laws is to treat women's special protection differently. This kind of differential treatment is reasonable, but it is difficult to achieve the legislative purpose of protecting women in practice by stipulating that the retirement ages of men and women are different, resulting in an inequality. At the same time, these provisions are also lower than the law in legal rank, which is contrary to the law and cannot be used as special laws.
Therefore, this retirement rule for men and women at different ages should be changed in time. According to the "strict rationality review benchmark" and the requirements of the times, raising the retirement age of women and adopting flexible regulations so that women can voluntarily choose whether to retire early according to their own conditions is the real protection of women's rights and interests.
Second, the occupational taboo clause
China's "Labor Law", "Mine Safety Law" and "Law on the Protection of Women's Rights and Interests" all stipulate that it is forbidden to arrange female workers to engage in underground mines, labor with the fourth level of physical labor intensity stipulated by the state and other jobs that are taboo. The Regulations on Labor Protection of Female Employees also retains the occupational taboo clauses in the Regulations on Labor Protection of Female Employees. China 1935 Convention on Women's Underground Work also stipulates that "women, regardless of their age, are not allowed to engage in underground work in any mine". Whether it is laws, regulations or international treaties, its purpose is to give special labor protection to the concern of female workers. However, with the development of society, the original intention of this occupational taboo clause has not been reflected, but objectively deprived women of the right to choose these jobs.
Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women clearly defines "discrimination against women". However, taboo clauses in Chinese laws and regulations habitually protect women, ignoring women's individual differences and independent choice, which leads to the narrowing of women's employment scope and belongs to legislative discrimination.