LGBT rights in China

LGBT rights in the People's Republic of China China
Same-sex sexual intercourse legal status Legal nationwide since 1997[1]
Gender identity/expression Transgender people allowed to change legal gender after sex reassignment surgery.
Military service -
Discrimination protections None nationwide
Family rights
Recognition of
relationships
None nationwide
Restrictions:
The Marriage Law of the People's Republic of China defines marriage as a union between a man and a woman
Adoption Same-sex couples may not adopt jointly

Lesbian, gay, bisexual, transgender (LGBT) (ku'er, 酷儿 or tongzhi, 同志) people in China face social and legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in China since 1997. Additionally, in 2001, homosexuality was declassified as a mental illness. However, China possesses no laws protecting LGBT people from discrimination. Same-sex couples are unable to marry or adopt, and households headed by such couples are ineligible for the same legal protections available to opposite-sex couples.

Homosexuality and homoeroticism in China have been documented since ancient times. According to certain studies by the University of London,[2] homosexuality was regarded as a normal facet of life in China, prior to Western influence from 1840 onwards.[3] Several early Chinese emperors are speculated to have had homosexual relationships accompanied by heterosexual ones.[4] Opposition to homosexuality, according to these same studies, did not become firmly established in China until the 19th and 20th centuries, through the Westernization efforts of the late Qing Dynasty and the early Chinese Republic.[5]

Homosexuality was largely invisible during the Mao era because homosexuality was pathologised and criminalized.[6] In the 1980s, the subject of homosexuality reemerged in the public domain and gay identities and communities have expanded in the public eye since then. However, the studies note that public discourse in China is disinterested and, at best, ambivalent about homosexuality, and traditional sentiments on family obligations and discrimination remains a significant factor deterring same-sex attracted people from coming out.[6]

With the rapid legalization of same-sex marriage in numerous countries around the world, discussion on the issue has emerged in China. The Chinese Government's approach to LGBT rights and same-sex marriage has been described as "fickle" and as being "no approval; no disapproval; no promotion."[7][8] Public opinion towards LGBT people is becoming more friendly. However, there is still much resistance from the authorities, as various LGBT events have been banned in recent years.[8] Børge Bakken, a criminologist at the Australian National University, said in 2018: "President Xi Jinping's regime is very nervous about everything. So they are cracking down on LGBT events, not particularly because these people are gay, but because they see their organising as a potential threat."[9]

History and timeline

Shang Dynasty

The earliest records of homosexuality and same-sex relations in China date from the Shang Dynasty era (c. 16th to 11th century BC). The term luan feng was used to describe homosexuality. No records of lesbian relations exist, however. In this time, homosexuality was largely viewed with indifference and usually treated with openness.[10]

Zhou Dynasty

Several stories of homosexual love during the Zhou Dynasty are well known, even to this day. One such story refers to Duke Xian of Jin (reigned 676–651 BCE) planting a handsome young man in a rival's court in order to influence the other ruler with the young man's sexual charm and to give him bad advice.[11] A more exalted example would be the relationship of Mi Zixia (彌子瑕) and Duke Ling of Wei (衛靈公). Mizi Xia's sharing of an especially delicious peach with his lover was referenced by later writers as yútáo, or "the leftover peach". Another example of homosexuality at the highest level of society from the Warring States period is the story of Lord Long Yang and the King of Wei.[12]

Homosexuality was widely referenced during this period through popular literature. Poet Qu Yuan is said to have expressed his love for the ruling monarch, King Huai of Chu, through several of this works, most notably "Li Sao" and "Longing for Beauty".[10]

Han Dynasty

Two young Chinese men drinking tea and having sex. The "submissive" partner would typically be lighter in skin colour to reflect his feminity.

Homosexuality and homoeroticism were common and accepted during the Han Dynasty. Emperor Ai is one of the most famous Chinese emperors to have engaged in same-sex sexual activity. Historians characterise the relationship between Emperor Ai and his male lover Dong Xian as "the passion of the cut sleeve" (斷袖之癖, duan xiu zhi pi) after a story that one afternoon after falling asleep for a nap on the same bed, Emperor Ai cut off Dong Xian's sleeve (in a piece of clothing they were sharing) rather than disturb him when he had to get out of bed. Dong was noted for his relative simplicity contrasted with the highly ornamented court, and was given progressively higher and higher posts as part of the relationship, eventually becoming the supreme commander of the armed forces by the time of Emperor Ai's death.[13]

It was also during this period that one of the first mentions of female homosexuality surfaced. A historian in the Eastern Han Dynasty, Ying Shao, made observations regarding several Imperial Palace women forming homosexual attachments with one another, in a relationship titled duishi (a term interpreted to refer to reciprocal cunnilingus), in which the two acted as a married couple.[10]

Liu Song Dynasty

Writings from the Liu Song Dynasty era claim that homosexuality was as common as heterosexuality. It is said that men engaged so often in homosexual activity, that unmarried women became jealous.[3]

Tang Dynasty

During the Tang Dynasty era, there were traditions of pederastic same-sex relationships, typically in Buddhist temples, among a young boy and an adult man. Lesbian relationships also commonly occurred in Buddhist nunneries, as many Buddhist nuns sought relationships with one another. Taoist nuns meanwhile were recorded as having exchanged many upon many love poems to one another.[10]

Song Dynasty

The earliest law against homosexual prostitution in China dates from the Zheng He era (政和, 1111-1118) of Emperor Zhao Ji (趙佶) in the Song Dynasty, punishing "young males who act as prostitutes with a punishment of 100 blows with heavy bamboo and a fine of 50,000 cash." Another text from the Song Dynasty prohibits the offense of bu nan (male-female prostitution).[14] They were never enforced.[10]

Ming Dynasty

The Zhengde Emperor of the Ming Dynasty is believed to have had a homosexual relationship with a Muslim leader from Hami, named Sayyid Husain. In addition to having relationships with men, the Zhengde Emperor also had many relationships with women. He sought the daughters of many of his officials. The Tianqi Emperor is believed to have had two private palaces; one for his female lovers and one for his male lovers.[10] During this era, lesbian sexual practices became meeting the rapidly rising trend of "sapphism", which were created all in the name of pleasure. This included, but was not limited to the act of frottage, cunnilingus and mutual masturbation.[10]

Chinese homosexuals did not experience persecution which would compare to that experienced by homosexuals in Christian Europe during the Middle Ages, and in some areas, particularly among the merchant classes, same-sex love was particularly appreciated. There was a stereotype in the late Ming Dynasty that the province of Fujian was the only place where homosexuality was prominent,[15] but Xie Zhaozhe (1567–1624) wrote that "from Jiangnan and Zhejiang to Beijing and Shanxi, there is none that does not know of this fondness."[15] European Jesuit missionaries such as Matteo Ricci took note of what they deemed "unnatural perversions", distressed over its often open and public nature.[16] Historian Timothy Brook writes that abhorrence of sexual norms went both ways, since "the celibate Jesuits were rich food for sexual speculation among the Chinese."[15] Chinese writers typically made fun of these men, insisting that the only reason they condemned homosexuality was because they were forced to refrain from sexual pleasure as they were celibate.[10][17]

The first statute specifically prohibiting same-sex sexual intercourse was enacted in the Jiajing era (嘉靖, 1522-1567) of Emperor Zhu Houcong (朱厚熜) in 1546.[14] Despite this, homosexuality was still commonly accepted and practiced, providing that the men produced heirs and married women later on. Homosexualtiy was even viewed as "luxurious" by middle classes. Same-sex marriage ceremonies were commonplace.[10]

Qing Dynasty

A woman spying on two male lovers.

By 1655, Qing courts began to refer to the term ji jian (sodomy) to apply to homosexual anal intercourse. Society began to emphasise strict obedience to the social order, which referred to a relationship between husband and wife. In 1740, an anti-homosexual decree was promulgated, defining voluntarily homosexual intercourse between adults as illegal. Though there were no records on the effectiveness of this decree, it was the first time homosexuality had been subject to legal proscription in China. The punishment, which included a month in prison and 100 heavy blows with heavy bamboo, was actually the lightest punishment which existed in the Qing legal system.[10]

Republic of China

In 1912, explicit prohibitions of ji jian were abolished in China.[1]

Homophobia and intolerance of gays and lesbians became more mainstream through the Westernization efforts of the early Republic of China.[5]

People's Republic of China

Homosexuality was largely invisible during the Mao era because homosexuality was pathologised and criminalized.[6] During the Communist Cultural Revolution (1966 to 1976), homosexuals were regarded as "disgraceful" and "undesirable", and heavily persecuted. All mentions to homosexuality in criminal law were removed in 1997. In 2001, the Chinese Society of Psychiatry declassified homosexuality as a mental disorder.[1][18]

Recognition of same-sex relationships

The Marriage Law of the People's Republic of China, adopted at the third session of the Fifth National People's Congress on September 10, 1980, defines marriage as a union between a man and a woman.[19][20]

Beijing

Beijing currently provides dependent residency status to the same-sex partners of legal residents, such as expats.[21]

Hong Kong

In June 2009, the Government of Hong Kong extended limited recognition and protection to cohabitating same-sex couples in its Domestic Violence Ordinance.[22]

In April and September 2017, Hong Kong courts ruled that the same-sex partners of government employees must receive the same benefits as opposite-sex partners and that the same-sex partners of Hong Kong residents have the right to live in the territory as dependents, respectively. These two rulings were both appealed by the Hong Kong Government, however.[23][24] In June 2018, the Hong Kong Court of Appeals overturned the April ruling, holding that same-sex couples should have no marital rights whatsoever.[25] In July 2018, the Court of Final Appeal upheld the September ruling, stating that same-sex partners have the right to receive spousal/dependent visas, and as such can legally reside in Hong Kong.[26]

In June 2018, a Hong Kong lesbian woman known as "MK" filed a lawsuit against the Hong Kong Government for denying her the right to enter into a civil partnership with her female partner, arguing that her rights to privacy and equality had been violated, amounting to a breach of the Hong Kong Basic Law and the Hong Kong Bill of Rights Ordinance. The High Court heard the case in a brief 30-minute preliminary hearing in August 2018, and it is expected to be heard in the first half of 2019.[27][28][29]

On January 5, 2016, a court in Changsha, southern Hunan Province, agreed to hear the lawsuit of 26-year-old Sun Wenlin, filed in December 2015, against the Bureau of Civil Affairs of Furong District for its June 2015 refusal to let him marry his 36-year-old male partner, Hu Mingliang.[30] On April 13, 2016, with hundreds of same-sex marriage supporters outside, the Changsha court ruled against Sun, who vowed to appeal, citing the importance of his case for LGBT progress in China.[31] On May 17, 2016, Sun and Hu were married in a private ceremony in Changsha, expressing their intention to organize another 99 same-sex weddings across the country in order to normalize same-sex marriage in China.[32]

Adoption and parenting

The Chinese Government requires parents adopting children from China to be in heterosexual marriages.[33] Adoption of Chinese children by foreign same-sex couples and individuals is prohibited by the Chinese authorities.[34]

Discrimination protections

LGBT flag map of China

The Constitution does not explicitly deal with sexual orientation or gender identity discrimination.

There is no anti-discrimination provision for sexual orientation or gender identity under the Chinese labour law. Labour law specifically protects workers against discrimination on the basis of a person's ethnicity, gender or religion.[34]

In 2018, a gay kindergarten teacher sued his former school after he was dismissed from his job, following a social media post he had made about attending an LGBT event.[35] It is the first known sexual orientation employment discrimination case to be brought in China, and was accepted for hearing by a court in Qingdao.[35]

Hong Kong

The Hong Kong Bill of Rights Ordinance 1991 prohibits discrimination on a variety of grounds, including "other status". In the case of Leung TC William Roy v. Secretary for Justice (2005), this has been interpreted to include sexual orientation. However, the Bill of Rights only applies to government sponsored discrimination and not the private sector.[36]

Macau

The Basic Law of Macau's Article 25 indicates the people of Macau are free from discrimination based on a non-exhaustive list of prohibited factors. Sexual orientation is not included in said list of prohibited discrimination grounds. However, there are anti-discrimination protections based on sexual orientation in the fields of labour relations (article 6/2 of Law 7/2008), protection of personal data (article 7/1,2 of Law 8/2005) and ombudsman (article 31-A of Law 10/2000, as amended by Law 4/2012).

Gender identity and expression

In 2009, the Chinese Government made it illegal for minors to change their officially-listed gender, stating that sex reassignment surgery, available to only those over the age of twenty, was required in order to apply for a revision of their identification card and residence registration.[37]

Shanxi Province

In 2014, Shanxi Province started allowing minors to apply for the change with the additional information of their guardian's identification card. This shift in policy allows post-surgery marriages to be recognized as heterosexual and therefore legal.[38]

Hong Kong

Hong Kong law allows change in legal documents such as the identity cards and passports after a person has undergone sex reassignment surgery, but does not allow birth certificates to be changed.[39]

Freedom of expression and censorship

The Hong Kong Pride Parade has been held annually since 2008.

In 2015, film-maker Fan Popo sued government censors for pulling his gay documentary Mama Rainbow from online sites.[40] The lawsuit concluded in December 2015 with a finding by Beijing No.1 Intermediate People's Court that the State Administration of Press, Publication, Radio, Film and Television (SAPPRFT) had not requested that hosting sites pull the documentary.[41] Despite this ruling, which Fan felt was a victory because it effectively limited state involvement, "the film is still unavailable to see online on Chinese hosting sites."[42]

On December 31, 2015, the China Television Drama Production Industry Association posted new guidelines, including a ban on showing LGBT relationships on TV. The regulations stated: "No television drama shall show abnormal sexual relationships and behaviors, such as incest, same-sex relationships, sexual perversion, sexual assault, sexual abuse, sexual violence, and so on."[43] These new regulations have begun to affect web dramas,[44] which have historically had fewer restrictions:

"Chinese Web dramas are commonly deemed as enjoying looser censorship compared with content on TV and the silver screen. They often feature more sexual, violent and other content that is deemed by traditional broadcasters to fall in the no-no area."[45]

In February 2016, the popular Chinese gay web series Addicted (Heroin) was banned from being broadcast online 12 episodes into a 15-episode season. Makers of the series uploaded the remaining episodes on YouTube instead.[46]

In April 2018, Sina Weibo, one of the most popular social media platforms in China, decided to ban all LGBT-related issues. This quickly drew criticism from the public at large and the People's Daily, the Communist Party's official newspaper. Forms of criticism included the hashtag #IamGay, which was viewed over 240 million times.[9] Sina Weibo reversed its ban a few days later. Many Chinese interpreted the People's Daily editorial as a signal that the Government may soften its attitude towards LGBT rights. However, a campaign marking the International Day Against Homophobia on school campuses was forbidden by public officials just one month later.[8] Siodhbhra Parkin, a fellow at the Global Network for Public Interest Law, said the public shouldn't overinterpret the newspaper's decision: "It might be a signal showing that the government does not have a problem with LGBT rights as a concept. However, that doesn't mean that the authorities will tolerate civil mobilization and activism. I don't think you're going to see the Chinese government supporting civil society groups at the same time that they are trying to crack down [on] all these other groups. When you're an LGBT NGO, you're still an NGO. And that is always going to be kind of the determining factor for whether or not the LGBT movement moves forward."[8]

In May 2018, the European Broadcasting Union blocked Mango TV, one of China's most watched channels, from airing the final of the Eurovision Song Contest 2018 after it edited out Irish singer Ryan O'Shaughnessy's performance, which depicted two male dancers, and blacked out rainbow flags during Switzerland's performance.[47]

Days before the International Day Against Homophobia in 2018, two women wearing rainbow badges were attacked and beaten by security guards in Beijing. The security company dismissed the three guards involved shortly thereafter.[9]

In 2018, the Chinese Government banned Mr Gay World 2019 from taking place in Hong Kong.[48]

Conversion therapy

In December 2014, a Beijing court ruled in favor of Yang Teng, a gay man, in a case against a conversion therapy clinic. The court ruled that such treatments are illegal and ordered the clinic to pay monetary compensation to Yang.[49]

In June 2016, Yu Hu, a gay man from Henan Province, sued a hospital in the city of Zhumadian for forcing him to undergo conversion therapy.[50] He was awarded a public apology and monetary compensation in July 2017.[51]

Following these two successful rulings, LGBT groups are now calling on the Chinese Health Ministry to ban conversion therapy.[52]

Public opinion and demographics

According to certain estimates from 2010, about 80% to 90% of Chinese gay men were married to women.[53]

Opinion polls have showed growing levels of support for LGBT rights and same-sex marriage in China. A 2009 poll found that 30% of Beijing's population supported same-sex marriage, while a 2014 poll found that 74% of Hong Kong residents favoured granting certain rights and benefits to same-sex couples.

A 2017 University of Hong Kong poll found that 50.4% of Hong Kong residents supported same-sex marriage.[54] Additionally, nearly 70% supported an LGBT anti-discrimination law.

Human rights reports

2017 United States Department of State report

In 2017, the United States Department of State reported the following, concerning the status of LGBT rights in China:

  • Internet Freedom
    "References to homosexuality and the scientifically accurate words for genitalia were also banned. Writers who cover lesbian, gay, bisexual, transgender, and intersex; gender; and youth health issues expressed concern over how to proceed without being shut down."[55]
  • Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
    "No laws criminalize private consensual same-sex activities between adults. Due to societal discrimination and pressure to conform to family expectations, however, most lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons refrained from publicly discussing their sexual orientation or gender identity. Individuals and organizations working on LGBTI issues continued to report discrimination and harassment from authorities similar to that experienced by other organizations that accept funding from overseas.
    Despite reports of domestic violence among LGBTI couples, the regulations on domestic violence and the Family Violence Law do not include same-sex partnerships, giving LGBTI victims of domestic violence less legal recourse than heterosexual victims.
    A court in Henan Province in July ruled that a mental hospital in Zhumadian City owed a gay man named Wu 5000 yuan ($735) in compensation over being forced against his will in 2015 into “conversion therapy.” Hospital employees forced Wu to take medicine and injections for 19 days after diagnosing him with a “sexual preference disorder.”
    NGOs working on LGBTI issues reported that although public advocacy work became more difficult for them in light of the Foreign NGO Management Law and the Domestic Charity Law, they made some progress in advocating for LGBTI rights through specific antidiscrimination cases. In July a court ruled in favor of a transgender man in his suit against his former employer for wrongful termination.
    Xi’an police detained nine members of the gay advocacy group Speak Out hours before the conference it was hosting was slated to start."[55]

Summary table

Same-sex sexual activity legal (Since 1997)
Equal age of consent (Since 1997)
Anti-discrimination laws in employment
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)
Same-sex marriage(s)
Recognition of same-sex couples / (For some limited immigration purposes in Beijing and Hong Kong)
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve in the military
Right to change legal gender
Freedom of expression (National ban on any display of "abnormal sexual behaviors" — including homosexuality — in online video and audio content)
Access to IVF for lesbians
Commercial surrogacy for gay male couples (Banned regardless of gender and sexual orientation)
MSM allowed to donate blood

See also

References

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