LGBT rights in China

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People's Republic of China (orthographic projection).svg
StatusLegal nationwide since 1997[1]
Gender identityTransgender people allowed to change legal gender after sex reassignment surgery.
Military-
Discrimination protectionsNone nationwide
Family rights
Recognition of relationshipsNone nationwide
RestrictionsThe Marriage Law of the People's Republic of China defines marriage as a union between a man and a woman
AdoptionSame-sex couples may not adopt jointly

Lesbian, gay, bisexual, transgender (LGBT) people in China face legal and social 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. 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 appears uninterested 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. Its 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 tolerant. 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[edit]

Ancient China[edit]

Shang dynasty[edit]

The earliest records of homosexuality and same-sex relations in China date from the Shang dynasty era (c. 16th to 11th century BCE). The term luan feng (鸞鳳) 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[edit]

Several stories of homosexual love during the Zhou dynasty (c. 1046–256 BCE) 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 (餘桃), 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]

Imperial China[edit]

Han dynasty[edit]

Two young Chinese men drinking tea, reading poems, 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 (202 BCE - 220 CE). Emperor Ai of Han is one of the most famous Chinese emperors to have engaged in same-sex sexual activity. Historians characterize the relationship between Emperor Ai and his male lover Dong Xian as "the passion of the cut sleeve" (斷袖之癖, duànxiù zhī pì) 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 (對食, a term interpreted to refer to reciprocal cunnilingus), in which the two acted as a married couple.[10]

Liu Song dynasty[edit]

Writings from the Liu Song dynasty era (420–479 CE) 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[edit]

During the Tang dynasty (618–907 CE) 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[edit]

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 (960–1279), punishing nánchāng (男娼), 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 (Chinese: 不男; literally: '[being] not man', crossdressing).[14] They were never enforced.[10]

Ming dynasty[edit]

The Zhengde Emperor of the Ming dynasty (1368-1644) 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[edit]

A woman spying on two male lovers.

By 1655, Qing courts began to refer to the term ji jian (雞姦 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]

Modern China[edit]

Republic of China[edit]

In 1912, the Xinhai Revolution toppled the Qing dynasty and its explicit prohibition of ji jian was abolished by the succeeding states.[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[edit]

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, however, without specifically declaring homosexuality as "not a psychological disorder", which effectively resulted in psychiatric facilities across the country still considering homosexuality as a mental disorder on various degrees and continuing to offer conversion therapy treatments.[1][18][19]

Recognition of same-sex relationships[edit]

The Marriage Law of the People's Republic of China (Chinese: 中华人民婚姻, pinyin: Zhōnghuá Rénmín Gòng Héguó Hūnyīn Fǎ), 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.[20][21]

Beijing[edit]

Beijing currently provides dependent residency status to the same-sex partners of legal residents, such as expats.[22]

Hong Kong[edit]

In June 2009, the Government of Hong Kong extended limited recognition and protection to cohabitating same-sex couples in its Domestic Violence Ordinance (Chinese: 家庭及同居關係暴力條例, pinyin: Jiātíng Jí Tóngjū Guānxi Bàolì Tiáolì).[a][23]

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.[24][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] Likewise, on 6 June 2019, the Court of Final Appeal upheld the April ruling,[27] after having initially been overturned by the Court of Appeal.[28]

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. A full hearing took place on 28 May 2019.[29][30][31]

In November 2018, Raymond Chan Chi-chuen proposed a motion to study civil unions for same-sex couples, but this was voted down by 27 to 24.[32]

In January 2019, two men launched legal challenges against Hong Kong's same-sex marriage ban, arguing that the refusal to recognize and perform same-sex marriages is a violation of the Basic Law. The Hong Kong High Court has given permission for the cases to proceed.[33][34]

Legal challenges[edit]

On 5 January 2016, a court in Changsha, southern Hunan Province, agreed to hear a lawsuit filed in December 2015 against the Bureau of Civil Affairs of Furong District. The lawsuit was filed by 26-year-old Sun Wenlin, who in June 2015 had been refused permission by the bureau to marry his 36-year-old partner, Hu Mingliang.[35] On 13 April 2016, with hundreds of same-sex marriage supporters outside, the Changsha court ruled against Sun, who said he would appeal.[36] 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.[37]

Adoption and parenting[edit]

The Chinese Government requires parents adopting children from China to be in heterosexual marriages.[38] Adoption of Chinese children by foreign same-sex couples and individuals is prohibited by the Chinese authorities.[39]

Discrimination protections[edit]

Article 33 of the Constitution provides for equality for all citizens under the law. This is no explicit mention of sexual orientation or gender identity.

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.[39]

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.[40] The case was accepted for hearing by a court in Qingdao.[40]

In November 2018 and March 2019, China accepted several recommendations pertaining to LGBT rights during its Universal Periodic Review. The "landmark" recommendations, from Argentina, Chile, France, Ireland, Mexico, the Netherlands and Sweden, urge China to pass an anti-discrimination law covering sexual orientation and enact anti-violence and social security measures. For the first time, the Chinese delegation responded positively. In March 2019, it was revealed at the UN that China aims to adopt an LGBT anti-discrimination law within a year. Activists described the recommendations as a "milestone". This news, however, was soon censored on all Chinese news and social media platforms.[41][42][43]

Hong Kong[edit]

The Hong Kong Bill of Rights Ordinance 1991 (Chinese: 香港人權法案條例; pinyin: Xiānggǎng Rénquán Fǎ'àn Tiáolì)[b] 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.[44]

Macau[edit]

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 the Law No. 7/2008),[c] protection of personal data (article 7/1,2 of Law No. 8/2005),[d] and ombudsman (article 31-A of Law No. 4/2012).[e]

Gender identity and expression[edit]

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.[45]

Shanxi Province[edit]

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.[46]

Hong Kong[edit]

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.[47]

Freedom of expression, religion and censorship[edit]

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.[48] 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.[49] 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."[50]

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."[51] These new regulations have begun to affect web dramas,[52] 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."[53]

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.[54]

In 2017, an LGBT conference was scheduled to be held in Xi'an. Western reports, using the organisers blog as their source, claimed the police had detained the organisers and threatened them.[55][56][57]

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]

Displayed in      are countries where homosexuality is not illegal, but where freedom of speech and expression is generally censored or prohibited. China, as well as other countries, namely Russia and Iraq, are listed in this category.

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.[58]

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]

Mr. Gay China, a beauty pageant, was held in 2016 without incident.[59] In 2018, the event host passively cancelled their engagement by not responding to any communications. Mr Gay World 2019 announced cancellation after communication began to deteriorate in early August. No official censorship notice was issued but some articles blamed the Chinese Government for the cancellation.[60] That same year, a woman who wrote a gay-themed novel was sentenced to 10 years and 6 months in prison for "breaking obscenity laws".[61]

Rabbit God[edit]

Tu'er Shen (兔兒神), also known as the Rabbit God (兔神), is the Chinese Taoist matchmaker god for homosexual relations, and is the God of homosexual love. There used to be a temple dedicated to him in Southern China called the "Double Flowers Temple". The temple was destroyed by the Japanese military during World War II and no longer exists.[62] However, in the past decades, there have been revival attempts to worship him, particularly in Taiwan. In 2006, Lu Wei-ming founded a temple for Tu'er Shen in Yonghe District in New Taipei City.[63] About 9,000 gay pilgrims visit the temple each year for praying, particularly for a partner. The temple also performs marriage ceremonies for same-sex couples. It is the world's only religious shrine for homosexuals.[64]

Conversion therapy[edit]

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, as the treatments failed to deliver the clinic's promise in its advertisements, and ordered the clinic to pay monetary compensation to Yang, as well as take down their advertisements on conversion therapy treatments.[65]

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.[66] He was awarded a public apology and monetary compensation in July 2017, however, the court did not rule the practice as illegal in its decision.[67]

Following these two successful rulings, LGBT groups are now calling on the Chinese Health Ministry to ban conversion therapy.[68] However, as of April 2019, no effective measures have been taken by the Chinese Government to ban conversion therapy, and such treatments are in fact being actively promoted across China.[19]

Public opinion and demographics[edit]

According to certain estimates from 2010, about 80% to 90% of Chinese gay men were married to women.[69] Such women are known as tongqi in Chinese (Chinese: 同妻, pinyin: tóngqī).

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.[70] Additionally, nearly 70% supported an LGBT anti-discrimination law.

Human rights reports[edit]

2017 United States Department of State report[edit]

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."[71]
  • 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."[71]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1997)
Equal age of consent (14) Yes (Since 1997)
Anti-discrimination laws in employment No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Same-sex marriage(s) No
Recognition of same-sex couples No/Yes (For some limited immigration purposes in Beijing and Hong Kong)
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT people allowed to serve in the military Emblem-question.svg
Right to change legal gender Yes
Freedom of expression No (National ban on any display of "abnormal sexual behaviors" — including homosexuality — in online video and audio content)
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No (Banned regardless of gender and sexual orientation)
MSM allowed to donate blood No

See also[edit]

Notes[edit]

  1. ^ Cantonese romanization: Gātìhng Kahp Tùhnggēui Gwāanhaih Bouhlihk Tìuhlaih
  2. ^ Cantonese romanization: Hēunggóng Yàhnkyùhn Faaton Tìuhlaih
  3. ^ Chinese: 勞動關係法, Cantonese romanization: Lòuhduhng Gwāanhaih Faat;
    Portuguese: Lei das relações de trabalho
  4. ^ Chinese: 個人資料保護法, Cantonese romanization: Goyàhn Jīlíu Bóuwuh Faat;
    Portuguese: Lei da Protecção de Dados Pessoais
  5. ^ Chinese: 修改第10/2000號法律《澳門特別行政區廉政公署》, Cantonese romanization: Sāugói Daih 10/2000 Houh Faatleuht《Oumùhn Dahkbiht Hàhngjingkēui Lìhmjing Gūngchyúh》;
    Portuguese: Alteração à Lei n.° 10/2000 «Comissariado contra a Corrupção da Região Administrativa Especial de Macau»

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