LGBT rights in China

LGBT rights in People's Republic of China China

Same-sex sexual activity legal? Legal nationwide since 1997[1]
Gender identity/expression Trans 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 women
Adoption Same-sex couples may not adopt jointly

Lesbian, gay, bisexual, transgender (LGBT) persons in China face legal challenges not experienced by non-LGBT residents.

Law regarding same-sex sexual activity

Song dynasty

The earliest law against a homosexual acts 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 fine of 100 blows with a heavy bamboo and a fine of 50,000 cash." Another text from the Song Dynasty prohibits the offense of bu nan (male-female prostitution).[2]

Ming dynasty

The first statute specifically prohibiting same-sex sexual intercourse between men was enacted in the Jiajing era (嘉靖, 1522-1567) of Emperor Zhu Houcong (朱厚熜) in the Ming Dynasty.[2]

Qing dynasty

By 1655, Qing courts began to refer to the term ji jian (sodomy) to apply to homosexual anal intercourse. In 1679, the Qing Dynasty instituted the first statute containing the term ji jian. 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.[2][3]

Republic of China

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

People's Republic of China

When the People’s Republic of China was established in 1949, the Communist Party declared homosexuality a sign of bourgeois decadence. Treatment of suspected homosexuals during the Cultural Revolution was particularly harsh.[4] In 1979, “hooliganism” was criminalized in Chinese criminal law. In 1997, the Chinese government abolished the hooligan law, an act considered by most to be a decriminalization of homosexuality in the People's Republic of China. In 2001, the Chinese Society of Psychiatry declassified homosexuality as a mental disorder.[1][4]

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.[5] Legal frameworks on marriage in the PRC not only reflect heteronormative values, but also entrench state-based and endorsed notions of nationality and citizenship.[6] Despite having a documented history of tolerance of homoerotism, homosexuality was largely invisible during the Mao era because queer identities were pathologised and criminalised.[7] 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, Jeffreys and Yu 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'.[8]

Beijing

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

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.[9]

Same-sex marriage litigation

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 Furong district civil affairs bureau for its June 2015 refusal of the right to register to marry his 36-year-old male partner. This landmark same-sex marriage case is likely to be argued in mid-2016. “Our marriage law says there is the freedom to marry and gender equality," said Sun. "These words can be applied to same-sex marriage.” Maya Wang, a China researcher at New York-based group Human Rights Watch, said winning the case would be “a truly watershed moment for LGBT rights in China.”[10] On April 13, 2016, the Changsha court ruled against gay marriage.[11]

Laws regarding gender reassignment

In 2009, the Chinese government made it illegal for minors to change their officially-listed gender, stating that sexual 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.[12]

Shanxi Province

In 2014, the 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.[13]

Adoption and parenting

The Chinese government requires parents adopting children from China to be in heterosexual marriages.[14] Adoption of Chinese children by foreign LGBT couples and individuals has already been prohibited by the Chinese authorities.[15]

Discrimination protections

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

There is no anti-discrimination provision for sexual orientation or gender identity under the Chinese Labour Law. The Labour Law specifically protects workers against discrimination on the basis of a person’s ethnicity, gender or religion.[15]

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.[16]

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 such list of prohibited discrimination grounds. However, there are anti-discrimination protection 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).

Freedom of Expression and Censorship

In 2015, film-maker Fan Pop sued government censors for pulling his gay documentary Mama Rainbow from online sites.[17] 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.[18] 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."[19]

On December 31, 2015, the China Television Drama Production Industry Association posted new guidelines, including a ban on showing queer 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."[20] These new regulations have begun to affect web dramas,[21] 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."[22]

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, and production of a planned second season remains in doubt.[23]

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
Both joint and step adoption by same-sex couples
Gays allowed to serve in the military
Right to change legal gender
Commercial surrogacy
Access to IVF for lesbians
MSM allowed to donate blood
Freedom of expression - depicting LGBT relationships

See also

References

  1. 1 2 3 STATE-SPONSORED HOMOPHOBIA
  2. 1 2 3 Sommer, Matthew (2000). Sex, Law, and Society in Late Imperial China. Stanford University Press. p. 413. ISBN 0-8047-3695-2.
  3. ↑ Hinsch, Bret. (1990). Passions of the Cut Sleeve. University of California Press. p. 144.
  4. 1 2 Policy issues concerning sexual orientation in China, Canada, and the United States
  5. ↑ Marriage Law of thePeople's Republic of China
  6. ↑ Jeffreys, Elaine; Wang, Pan (2013). "The rise of Chinese-foreign marriage in mainland China, 1979–2010". China Information 27 (3): 347–349.
  7. ↑ Jeffreys, Elaine; Yu, Haiqing (2015). Sex in China. Polity. ISBN 978-0-7456-5613-7.
  8. ↑ Jeffreys, Elaine; Yu, Haiqing (2015). Sex in China. Polity. ISBN 978-0-7456-5613-7.
  9. ↑ Pink News, " Gay couples to be protected by Hong Kong domestic violence law
  10. ↑ "Gay man sues for right to marry in China’s first same-sex marriage lawsuit" in South China Morning Post, January 6, 2016, online: http://www.scmp.com/news/china/policies-politics/article/1898421/gay-man-sues-right-marry-chinas-first-same-sex-marriage
  11. ↑ http://www.npr.org/sections/thetwo-way/2016/04/13/474065742/chinese-court-rules-against-gay-couple-seeking-to-get-married
  12. ↑ Jun, Pi (9 October 2010). "Transgender in China". Journal of LGBT Youth 7 (4): 346–351. doi:10.1080/19361653.2010.512518.
  13. ↑ Sun, Nancy (9 January 2014). "Shanxi Permits Persons to Change Gender Information". All-China Women's Federation. Retrieved 17 October 2014.
  14. ↑ Intercountry Adoption | China | Who Can Adopt
  15. 1 2 China: The Legal Position and Status of Lesbian, Gay, Bisexual and Transgender People in the People’s Republic of China
  16. ↑ http://www.sodomylaws.org/world/china/china.htm
  17. ↑ Rauhala, Emily (2015-09-16). "This gay rights activist is suing the Chinese censors who banned his film". The Washington Post. ISSN 0190-8286. Retrieved 2016-03-06.
  18. ↑ "Chinese Gay Activist Claims Victory in Online Film Censorship Lawsuit". WSJ Blogs - China Real Time Report. Retrieved 2016-03-06.
  19. ↑ Leach, Anna (2016-02-11). "What is the Chinese media doing right for LGBT people?". The Guardian. ISSN 0261-3077. Retrieved 2016-03-06.
  20. ↑ "China bans same-sex romance from TV screens". CNN. Retrieved 2016-03-06.
  21. ↑ Ellis-Petersen, Hannah (2016-03-04). "China bans depictions of gay people on television". The Guardian. ISSN 0261-3077. Retrieved 2016-03-06.
  22. ↑ Lilian Lin, "China’s Censors Pull More Web Dramas, Including Hit Rom-Com" in ChinaRealTime (China blog of The Wall Street Journal), 21 January 2016, online: http://blogs.wsj.com/chinarealtime/2016/01/21/chinas-censors-pull-more-web-dramas-including-hit-rom-com/
  23. ↑ Lilian Lin and Chang Chen, "China’s Censors Take Another Gay-Themed Web Drama Offline" in ChinaRealTime (China blog of The Wall Street Journal), 24 February 2016, online: http://blogs.wsj.com/chinarealtime/2016/02/24/chinas-censors-take-another-gay-themed-web-drama-offline/
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