By Karen Lee
Steeped in centuries-old Confucian family order, China appears to be an unlikely place for same-sex marriage. A growing sense of activism, however, has seen more gay activists fight for their rights in court, mirroring a global trend – and emulating their counterparts across the Taiwan Strait – of embracing gays and lesbians into the institution of marriage.
Confucianism found a notable place in the 2015 case of Obergefell v Hodges, where the majority of the US Supreme Court, in conferring the marriage right on gays and lesbians, said “Confucius taught that marriage lies at the foundation of government”. While a swath of Netizens in China welcomed the connection between the sage and marriage equality,1 a philosophy professor saw it as a “distortion” of Confucius, who would have condemned homosexuality as “a crime against humanity”.2
The picture is, in fact, more nuanced. Chinese society has not always been anti-gay; a subtle difference subsisted between same-sex behaviours and homosexual identity. Ancient China, which allowed polygamy, had been for centuries tolerant of – or rather, indifferent towards – homosexuality as long as it posed no threats to traditional family roles and social hierarchies.3 Nor was it a target of Confucius or his followers in their espousal of sexual restraint. Imperial China, in particular, was famous for the prevalence of same-sex relations in high society; hence, the tales of “the shared peach” and “the cut sleeve” which romantically depicted the “love” between the king and his male lover. A decree, which the Qing Dynasty passed in 1740 to punish consensual sodomy between men, was never strictly enforced. On the other hand, European missionaries, who have arrived ashore since the 16th century, brought with them Judeo-Christian teachings including monogamy and anti-homosexuality. The idea of “homosexuals as deviants” has since begun to seep into the national psyche, which culminated during Mao Zedong’s reign whose aversion to homosexuality as a “decadent bourgeois practice” saw systemic persecutions against homosexuals, particularly gay men.4 That included a hooliganism law (liumangzui), added to the Penal Code in 1957, which allowed authorities to incarcerate, impose electric therapy on, or in some cases, execute homosexuals.5 Although homosexuality was decriminalised in 1997 and de-medicalised in 2001, respectively, social stigma attached to gays and, to a lesser extent lesbians, remains.
At the same time, marriage and its corollary, procreation, have remained central to Chinese family order. The words of Mencius, another Confucian sage, that “of the three forms of unfilial conduct, the worst is to have no descendants”, have for generations, led Chinese to believe that a son’s utmost duty is to continue the family line. Under China’s “patrilineal” conception of families, the route of lineage includes only those from the father’s side of the family with the same surname, with married daughters and their husbands being deemed “outside the family”.6 Unlike in the west where husband and wife form the axis of family in support of their adolescent children, traditional Chinese families revolve around the “vertical” relationships between that of father and son and of mother and daughter-in-law, with the marital partners playing a secondary role. A Confucian classic, the Book of Rites (Liji), which proclaimed five cardinal relationships (Wulun) – including father and son, and husband and wife – as the foundation of ethics, stressed that everyone should “stay in his place” and eschew behaviours unbecoming of their status.
According to a retired academic, at least 14 million straight women in China are married to gay men – many of them unaware of the latter’s double lives – leading to a host of other social problems. An increasing number of closeted gays, therefore, opted for “sham marriages” (xinghun) with lesbians to shield their sexual orientation and appease their families.
Against this cultural backdrop, the legalisation of same-sex marriage appears to challenge traditional Chinese family order, rather than marriage per se. That homosexuals are, by nature, incapable of reproduction, invokes shame and impiety and alienates gays far more than lesbians, who generally face a lower degree of public disapprobation and pressure to marry. Hence, some gays ended up marrying and having children with straight women, whom became known as “Tongqi”, a derivative of “Tongzhi”, a Chinese term which means “comrade” but colloquially understood as “gay”. According to a retired academic, at least 14 million straight women in China are married to gay men – many of them unaware of the latter’s double lives – leading to a host of other social problems.7 An increasing number of closeted gays, therefore, opted for “sham marriages” (xinghun) with lesbians to shield their sexual orientation and appease their families. Still, the burden of fulfilling traditional gender roles – to stay in one’s place – may make same-sex marriage, which will see a “son-in-law” replace a “daughter-in-law”, for example, sound like a distant dream.
Yet, social attitudes appear to be gradually changing amid growing activism. In January 2011, two men celebrated with 50-plus friends and activists in allegedly Beijing’s first gay marriage ceremony (following an earlier one by two lesbians in Guangdong province), the photos of which have set the Internet abuzz.8 Then in February 2013, prior to China’s annual parliamentary sessions in Beijing, about 100 parents of gays and lesbians, through a grassroots group that promotes LGBT rights, sent an open letter to the National People’s Congress delegates demanding “marriage equality” for their children, albeit to no avail. A breakthrough, however, was made in December 2014, when the Haidian District Court in northern Beijing ruled in favour of a man against a clinic for subjecting him to electric shocks as part of a gay conversion therapy. Declaring that homosexuality is not a mental illness, the court ordered the defendant to compensate the plaintiff and a search engine to remove a related advertisement. A further milestone was reached in June 2015, when a gay couple filed a lawsuit against a civil affairs bureau in Changsha in Hunan province after it refused to register their marriage. In what activists hailed as the first of its kind, the court, on 13 April 2016, two days after a county-level labour tribunal heard China’s first transgender employment discrimination case, convened a hearing (in a packed courtroom) despite ruling against the couple, citing that Chinese law allows only “a man and a woman” to form a marriage.9 To the LGBT community, however, that the case was ever heard – and the degree of support and media attention it garnered – was unprecedented, a sign of the increasing readiness of gay activists to use the legal system to fight for their rights. Noting that gays the world over have joined forces to fight for the right to marry, Mr. Sun, one of the claimants who vowed to appeal, said: “If I hadn’t seen the outside world, then I wouldn’t care. But I have seen the outside world, and I feel terrible. China needs to take bigger steps”.10
He was alluding to an international trend of legalising same-sex marriage since 2001. At present, more than 22 mostly Western and European jurisdictions – spanning the continents of Africa, Americas, Australasia, and Europe – allow gays and lesbians to tie the knot. Taiwan aspires to be Asia’s first, its divided legislature having passed the first of 3 readings on 26 December 2016 amid all-out protests from both sides of the debate. While Taiwan prides itself on its openness towards homosexuality with a boisterous annual gay parade in Taipei, same-sex marriage remains a divisive issue, not only due to traditional culture and an outspoken Evangelical opposition but arguably also the “leapfrogging” manner in which the law is set to be changed. In Taiwan, state emphasis on gender equality saw it part of the employment law and school curriculum since 2002 and 2004, respectively. Yet the law has never explicitly protected gays and lesbians from discrimination.11 This probably makes the impending law change too drastic for those, who, though not necessarily oppose equality measures for same-sex couples, find the big leap towards same-sex marriage difficult to fathom. Hence, while there appears to be some bipartisan consensus – between the nationalist Kuomintang and progressives led by the ruling Democratic Progressive Party – that same-sex relationships be legally recognised, disagreement centres on whether it should be achieved by amending the Civil Code, which would make marriage, once and for all, a union of “two persons”, or by enacting a new “civil union” or “same-sex marriage” law. For those who embrace marriage equality, the latter, however, reeks of the infamous “separate but equal” doctrine prevalent in 19th century racially segregated America. Nevertheless, experiences from Europe and North America, for example, show that the road to same-sex marriage has often followed an incremental track, which begins from state decriminalising homosexuality and standardising the age of consent between heterosexual and homosexual acts, outlawing discrimination on the ground of sexual orientation, to allowing gays and lesbians to form civil unions or partnerships and finally, to marry.12 Because marriage is never a purely private matter and requires a degree of social recognition, a step-by-step approach, which allows people to acclimatise themselves to incremental changes, may help smoothen the legislative process and make the ultimate transition easier to accept. As one of America’s leading academic defenders of gay rights William Eskridge Jr. once wrote: “…a polity which is a democracy and whose citizens have heterogeneous views about important matters is one where immediate full equality is not always possible, not practical, not even desirable”.13
Because marriage is never a purely private matter and requires a degree of social recognition, a step-by-step approach, which allows people to acclimatise themselves to incremental changes, may help smoothen the legislative process and make the ultimate transition easier to accept.
Despite the recent setbacks, both China and Taiwan have made great strides. China, which stopped treating homosexuality as a crime only two decades ago, now sees a growing league of gays and lesbians who dare speak the name of their love, some of them have gone the extra mile to fight for their rights in court. Without a history of incremental legal developments as described above, Taiwan is now debating in what manner the law should recognise the status of same-sex couples. Whatever direction they go, the issue of sexual minority rights is not to go away, and society will, sooner or later, need to confront a difficult moral disagreement between fellow citizens. “In the process, we will need to listen, deliberate and reconsider, at the same time accommodate aspirations we used to think incompatible with ours. Sometimes we may need to change our views. And we cannot expect to always have our own way”.14 Again Confucius comes to mind, this time: “Do unto others as you would have them do unto you”.
Featured image: Image from “Fighting for gay rights in China” video
Karen Lee is Assistant Professor in the Department of Social Sciences, the Education University of Hong Kong. Her research covers human rights discourse, rule of law, legal culture, and democratisation. She has recently published: “Beyond the ‘Professional Project’: The Political Positioning of Hong Kong Lawyers”, International Journal of Law, Crime and Justice, 2017 (online), 1-11.
3. D. S. Davis and S. L. Friedman (2014). “Deinstitutionalizing Marriage and Sexuality” in D. S. David and S. L. Friedman (eds.), Wives, Husbands, and Lovers: marriage and sexuality in Hong Kong, Taiwan, and Urban China, Stanford: Stanford University Press, 1-38, p. 17.
6. Fei Xiaotong (1992). From the Soil: The Foundations of Chinese Society (Trans. G.G. Hamilton & W. Zheng), Berkeley, Los Angeles, Oxford: University of California Press, p. 83.
11. Taiwan enacted the Gender Equality Employment Law and Gender Equity Education Act in 2002 and 2004, respectively.
12. Man Yee Karen Lee (2010). Equality, Dignity, and Same-sex Marriage: A Rights Disagreement in Democratic Societies, Leiden; Boston: Martinus Nijhoff Publishers, p. 40.
13. William N. Eskridge Jr. (2001). “Equality Practice: Liberal Reflections on the Jurisprudence on Civil Unions”, 64 Albany Law Review 853, p. 871.14. Supra note 12, p. 246.
14.Supra note 12, p. 246.