At a Crucial Juncture for Marriage Equality in Taiwan, Looking at LGBT in China

Photo/Ch'en Ch'iang May 17, 2013, International Day Against Homophobia, a summer gay anti-discrimination street parade held in Changsha, Hunan, China.

Homosexuality under the "Catch-All Crime"

From 1983 to 1996, the Chinese Ministry of Health classified homosexuality as a "psychopathological mental disorder." "Homosexual acts" in public places or involving crowds could be classified as the crime of hooliganism—for example, homosexual acts in public restrooms, or simply gatherings and socializing in bars or dance halls, could all lead to criminal prosecution under the crime of hooliganism.

Article 160 of the Criminal Law of the People's Republic of China: "Whoever gathers crowds to engage in brawls, picks quarrels and provokes trouble, insults women or engages in other hooliganism, disrupting public order, and circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than seven years, criminal detention or public surveillance."

The crime of hooliganism was considered a "catch-all crime" in China because its provisions were vague and ambiguous, and its actual implementation was full of arbitrariness. As a saying went: "The crime of hooliganism is a basket, and any crime can be stuffed into it." Although there were no explicit legal provisions, in the Chinese society of that time, it was not uncommon for homosexuals to be subjected to fines, detention, re-education through labor, and dismissal from public office under the charge of hooliganism.

It was not until 1997 that the criminal law was amended to abolish the crime of hooliganism, an event considered a milestone in the decriminalization of homosexuality in China. The revision of the "Chinese Classification and Diagnostic Standards of Mental Disorders" in 2001 finally stopped classifying homosexuality as a disease.

Invisible Sexual Minorities

After 1997, although the law no longer regarded homosexuals as "hooligans," society generally held an aversion toward non-heterosexuals, and there was basically no awareness or visibility of lesbians, bisexuals, and transgender people. Under such circumstances, LGBT individuals had to learn to hide themselves in their daily lives, studies, and interpersonal interactions. The greatest pressure usually came not from outsiders' judgments, but from the guilt and anxiety toward their families of origin for failing to meet their relatives' expectations. Due to traditional notions of starting a family, establishing a career, and continuing the family line, non-heterosexuals were forced to enter into marriages, making "formal marriage" the only exit.

"Formal marriage," abbreviated as xinghun, is a mutual aid marriage model that has emerged in recent years, where both parties may consist of people who prefer not to marry, or a gay man and a lesbian. On the surface, it is a "normal family" composed of a man and a woman; but in reality, the two parties do not have a substantive "husband and wife" relationship, with the purpose being to use the form of marriage to fend off traditional social or external pressures.

The interviewed friends stated that the cases they generally handle the most are those related to formal marriages and partner rights issues. Because the marriage system encompasses a wide variety of rights and obligations, formal marriages also carry certain risks. The friends shared an incident from the local community: a lesbian and a gay man entered into a formal marriage. Unexpectedly, shortly after the wedding, the "husband" was hospitalized for a long term due to an accident, leaving the "wife" obligated to care for him. After the "husband" passed away, the "wife" was also obligated to care for the "husband's" parents, with no recourse even if she told others it was a "formal marriage."

Although formal marriages may carry various risks, quite a large number of people in China still enter into formal marriages every year.

Marriage Equality in China

Because the LGBT community is relatively marginalized in society, lacking attention and understanding—let alone effective legal remedy channels—with the growth of gender awareness in recent years, many Chinese lawyers and legal workers have gradually become aware of the legal needs faced by the LGBT community. Teams composed of lawyers and legal workers have begun to emerge across various regions to provide legal consultation and assistance to LGBT individuals. Lawyers friendly to the LGBT community like this are known as "rainbow lawyers."

In June 2015, Sun Wen-lin (孫文麟) and his boyfriend Hu Ming-liang (胡明亮) went to the Changsha Civil Affairs Bureau to apply for marriage registration. After being rejected by the staff, they filed a lawsuit against the Civil Affairs Bureau for "administrative inaction," assisted by lawyers from the Rainbow Lawyers Group. The case was accepted in January 2016, marking the first same-sex marriage registration case successfully accepted and filed by a court in China. Regardless of victory or defeat, it holds historical significance.

When the court held a public trial in April 2016, nearly two hundred members of the public came to the scene to observe, including media reporters, the gay community, and supporters of gay rights. The trial lasted two and a half hours, with the core of the debate between the two sides focusing on the interpretation of "monogamy" in the Marriage Law.

Chapter 1, Article 2 of the Marriage Law of the People's Republic of China: "A marriage system based on the freedom of marriage, monogamy, and equality between men and women shall be applied. The lawful rights and interests of women, children, and the elderly shall be protected."

The attorneys representing Sun Wen-lin and his boyfriend Hu Ming-liang argued that China's Marriage Law does not "prohibit" parties of the same biological sex from going to the civil affairs bureau to register for marriage. They also argued that "monogamy" in the provisions does not mean "one man and one woman," but rather the concept of a "one-to-one" relationship, rather than restricting only one man and one woman from registering for marriage.

The representing attorneys also argued that marriage registration is not an "administrative permission," but should be an "administrative confirmation." Administrative permission refers to the need for the government to determine qualifications and permit an action before it can be carried out, such as the development of natural resources. Administrative confirmation, on the other hand, is a state where a fact already exists, and the government only needs to recognize that factual state—for instance, when a traffic accident occurs, the traffic accident determination certificate issued by the police is a type of administrative confirmation. Under this logic, the partnership between Sun Wen-lin and his boyfriend Hu Ming-liang was a pre-existing fact rather than something that occurred only after government permission; it merely required government confirmation of the existence of this relationship.

The attorney for the Civil Affairs Bureau stated: "If you find a thousand people, a thousand people will also feel that the Marriage Law is for one man and one woman. Even if the monogamy system were changed, in the future it would be one woman and many men, or one man and many women, and it will not be homosexuals."

After several rounds of debate between the two sides, the court seemingly went through all procedures earnestly, and the judge adjourned the session to take a recess. After a recess of more than ten minutes, the judge ultimately dismissed the plaintiffs' claims and pronounced the plaintiffs' defeat right there in court. Many people believed the judgment may have been written in advance before the trial even began, as it is quite rare in Chinese trials for a verdict to be pronounced on the very day of the court hearing.

Gender Equality in China

In addition to same-sex partner marriage registration cases, there have been other cases related to gender identity and sexual orientation in recent years. From these cases, one can witness the various predicaments faced by the LGBT community in China.

The Law Cannot Serve Prejudice

Different sexual orientations are, for society, a concrete manifestation of human diversity; for the individual, they belong to equally enjoyed, independent individual traits. They are not standards for judging a person's character and abilities, but personal privacy completely unrelated to work ability. That everyone is free from discrimination based on sexual orientation is an inherent meaning of human dignity and the bottom line of justice upheld by the law.

In China, the fundamental reason why LGBT individuals encounter various unequal treatments and pressures stems from invisibility; because they are invisible, it is even harder for them to be understood, and all kinds of stigmas and labels follow closely, making them hard to shake off. Although these cases are merely the tip of the iceberg, it is through one judicial lawsuit after another that the LGBT community can emit a faint voice, presenting a portion of their difficult plight into the public view and forcing society to confront and discuss the living conditions of LGBT individuals.

Although law may not be able to make men change their hearts, it can be used to stop them from doing it; and can be used to stop them from making their prejudices a power that, directly or indirectly, injures others.

In Taiwan, the discussion and review process of the marriage equality bill have received high attention from the LGBT community in China. Although our discourse on LGBT issues and the protection of gay rights still have room for improvement, we are already a relatively friendly society toward LGBT in East Asia. It is hoped that Taiwan can successfully become the first country in Asia to legalize same-sex marriage, raising the wind of equality and freedom, blowing westward to China, and stirring the advancement of LGBT-related rights in China until the rainbow is ushered in.

Photo/Supporters of the marriage equality bill show their support in front of the Legislative Yuan on December 26, 2016.