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Recognition of same-sex unions in China

China recognizes neither same-sex marriage nor civil unions. While China does not have any same-sex union recognition laws, a July 2018 ruling by the Hong Kong Court of Final Appeal ensures that the same-sex partners of Hong Kong residents can receive spousal/dependent visas.[1]

Contents

Immigration rightsEdit

BeijingEdit

While China does not have any same-sex union recognition laws, Beijing currently provides dependent residency status to the same-sex foreign partners of legal foreign residents. It is not clear whether this extends to the foreign partner of a local Chinese resident.

In 2013, beginning on 1 July, foreign same-sex partners (including married couples) of current residents became eligible for residency status in Beijing, under a "dependent resident status". This law only applies to the municipality of Beijing. The key beneficiaries were expected to be white-collar foreign expats whose partners and spouses were able to accompany them and gain residency status in Beijing as a result of the law.[2][3]

Hong KongEdit

In 2014, Hong Kong immigration officer Angus Leung Chun-kwong married his same-sex partner, Scott Adams, in New Zealand. After the wedding, Leung attempted to update his marital status with the Civil Service Bureau, which states that officers' benefits can extend to their spouses. The Bureau, however, rejected Leung's attempts to extend these benefits to Adams, prompting a legal challenge. On 28 April 2017, the Hong Kong High Court ruled in Leung's favour. In his landmark ruling, Mr Justice Anderson Chow Ka-ming called the Bureau's policy "indirect discrimination" and rejected its claim that it had "to act in line with the prevailing marriage law of Hong Kong" and that extending benefits to Leung's spouse would "undermine the integrity of the institution of marriage". The ruling was supposed to take effect on 1 September 2017 and would have offered the same-sex partners of government employees who married overseas the same benefits as heterosexual couples.[4][5] In May, however, the Hong Kong Government appealed the ruling.[6] The Court of Appeal began examining the case in December 2017,[7] and ruled against the couple on 1 June 2018. The Court of Appeal ruled that there is "legitimate aim" to protect opposite-sex marriage, arguing that only straight couples should enjoy the "freedom of marriage" and that same-sex couples should have no marital rights whatsoever. The Court also stated that Leung and Adams could not pay taxes as a couple.[8] The couple appealed the decision to the Court of Final Appeal. The appeal was heard on 7 May 2019.[9] On 6 June 2019, the Court of Final Appeal reversed the ruling of the Court of Appeal, holding that both the Civil Service Bureau and the Inland Revenue Department had unlawfully discriminated against the couple.[10]

In another case, a Hong Kong court ruled in late September 2017 that the British same-sex partner of an expatriate worker has the right to live in the territory as a dependent.[11] The ruling was labelled "a big win" by Ray Chan, Hong Kong's first openly gay lawmaker. The Hong Kong Government appealed the ruling in November 2017,[12] and it was upheld in July 2018 by the Court of Final Appeal.[13] The ruling became effective on 19 September 2018.[14]

Civil parternshipsEdit

Hong KongEdit

In June 2018, 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, a lesbian, known as "MK", filed a lawsuit against the Hong Kong Government for denying her the right to enter into a civil partnership (Chinese: 民事伴侶關係, pinyin: mínshì bànlǚ guānxì),[a] with her female partner. The High Court heard the case in a preliminary brief 30-minute hearing in August 2018.[21][22][23] In April 2019, a judge rejected a bid by a Hong Kong Catholic diocese and other conservative groups to join the litigation. The diocese had argued that the outcome of the court case could lead to "reverse discrimination", though the court rejected this argument on the basis that it was founded on social views and not law. The case was heard on 28 May 2019.[24][25][26] During the hearing, Stewart Wong, a government lawyer, defended the existing law, saying: "Not all differences in treatment are unlawful. You are not supposed to treat unequal cases alike. To recognise an alternative form of same-sex relationships which we say is tantamount to [marriage] is to undermine the traditional institution of marriage and the family constituted by such a marriage". Arguing that civil partnerships carry the same legal rights as a marriage, but generally do not include the ceremony and exchanges of wedding vows, this would make marriage and civil unions effectively identical "in substance", the government lawyer added.[27]

Same-sex marriageEdit

 
Asia
Same-sex sexual activity legal
  Marriage
  Other type of partnership
  Unregistered cohabitation
  Foreign same-sex marriages recognized
  No recognition of same-sex couples
  Restrictions on freedom of expression
Same-sex sexual activity illegal
  Not enforced or unclear
  Penalty
  Life in prison
  Death penalty

In modern times, the earliest known advocate of same-sex unions was the 19th to 20th century utopian reformer, Kang Youwei, who advocated temporary marriage contracts, lasting up for a year. These contracts would be for same-sex couples, as well as for heterosexual couples. However, he did not believe that China was ready for such a historic step, and deferred this policy until the future 'Datong' Utopia.[28][29]

The Chinese term tongqi (Chinese: 同妻, pinyin: tóngqī)[b] describes women who have married gay men. According to certain estimates from 2010, about 80% to 90% of Chinese gay men were married to women. These marriages are sometimes called "sham marriages" and are mostly attributed to the fact that there is a big social pressure from family to heterosexually-marry and to found a family with someone of the opposite sex. In most of these cases, the women are unaware of their husbands' sexual orientation. In 2012, a professor at Sichuan University committed suicide after her husband came out as gay. The news prompted public awareness of the issue and reinforced the need for same-sex marriage. In some cases, lesbians and gay men deliberately choose to marry.[30][31] LGBT groups are urging gay men not to give in to social pressure and enter these "sham marriages", as they are "a tragedy for both the gay men and the women."

In December 2017, the South China Morning Post editorial expressed support for the legalisation of same-sex marriage in Hong Kong, calling on the Government to show a greater commitment to equality.[32]

In July 2018, Chief Executive of Hong Kong Carrie Lam said that the Hong Kong Government has currently no plans to legalise same-sex marriage.[33] In March 2019, following development in Taiwan on same-sex marriage, Lam reiterated her position, saying that the Government was no closer to legalizing same-sex marriage and the issue was still "controversial".[34][35]

In May 2019, Equal Opportunities Commission chairman Ricky Chu Man-kin expressed preference for a step-by-step approach, starting with anti-discrimination initiatives, and said he would not push for a legislative timetable on same-sex marriage, but urged the community to "change tack" in favour of a pragmatic step-by-step approach to break the "eternal stalemate" in the city’s fight for LGBT rights. He said "instead of focusing on abstract and ideological debates that we can never easily come to an agreement on, let’s make small progress in tackling discrimination at the workplace, schools and public facilities."[36]

"First" same-sex marriageEdit

On 13 January 2010, the China Daily published a front-page splash photo of a Chinese couple, Zeng Anquan, a divorced architect aged 45, and Pan Wenjie, a demobilized PLA soldier aged 27, being married at a gay bar in Chengdu. The marriage is understood as having no legal basis in the country, and the families of both men reacted negatively to the news of their marriage.[37]

Legal challengesEdit

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.[38] On 13 April 2016, with hundreds of same-sex marriage supporters outside, the Changsha court ruled against Sun, who said he would appeal.[39] 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.[40]

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 (Chinese: 基本法, pinyin: Jīběnfǎ).[c] The Hong Kong High Court has given permission for the cases to proceed.[41][42]

Legal proposalsEdit

The Marriage Law of the People's Republic of China (Chinese: 中华人民婚姻, pinyin: Zhōnghuá Rénmín Gòng Héguó Hūnyīn Fǎ)[d] explicitly defines marriage as the union between one man and one woman. No other form of civil union is recognized.

Li Yinhe (Chinese: 李银河), a sexology scholar well known in the Chinese LGBT community, proposed the Chinese Same-Sex Marriage Bill (Chinese: 中国同性婚姻提案, pinyin: Zhōngguó Tóngxìng Hūnyīn Tí'àn)[e] as an amendment to the marriage law to the Chinese People's Political Consultative Conference in 2003, 2005, 2006 and 2008. All four proposals failed because she was unable to find enough cosponsors for a placement on the agenda. Li Yinhe, however, pledged to "continue proposing the bill until it is passed". In 2008, supporters of LGBT rights launched a campaign to collect signatures calling for recognition of same-sex marriage.[45] In 2012, Li Yinhe launched a new campaign to raise support for same-sex marriage legislation.[46]

In addition to national recognition, there have been unsuccessful attempts made towards allowing same-sex marriage in the provinces. In early 2010, lawyer Zhu Lieyu submitted a plan to the Guangdong People's Congress in an attempt to legalize same-sex unions in the province, however, the bill was never carried to a vote.[47]

Currently, there are proposals to include provisions legalising same-sex marriage in the ongoing revisions of the Civil Code, which is expected to be passed by 2020.[48]

Government attitudeEdit

The attitude of the Chinese Government towards homosexuality is believed to be "three nos": "No approval; no disapproval; no promotion." The Ministry of Health officially removed homosexuality from its list of mental illnesses in 2001, but same-sex marriage is still not considered. A government spokesperson, when asked about Li Yinhe's same-sex marriage proposal, said that same-sex marriage was still too "ahead of time" for China. He argued that same-sex marriage was not recognized even in many Western countries, which are considered much more liberal in social issues than China.[49] This statement is understood as an implication that the Government may consider recognition of same-sex marriage in the long run, but not in the near future.

In addition, the Chinese Government requires parents adopting children from China to be in heterosexual marriages.[50]

The Chinese Government did invite Jóhanna Sigurðardóttir, then Prime Minister of Iceland, and her wife Jónína Leósdóttir on an official state visit in April 2013. Jónína was largely absent from official media coverage of the visit but she was fully recognized as the wife of the Prime Minister and was received as such at official functions, official residences and a reception at Beijing Foreign Studies University.[51]

After the Taiwanese Constitutional Court ruled in May 2017 that banning same-sex marriage is unconstitutional, attitudes towards the legalisation of such marriages were largely positive on the popular Chinese social media site of Sina Weibo. Li Yinhe, a sociologist at the Chinese Academy of Social Sciences, claimed that a majority of Chinese under the age of 35 approve of same-sex marriage. Pointing out that the average age of members of the National People's Congress is 49, she concluded that same-sex marriage is "only 14 years away". However, the Chinese Government moved to censor any news of the court ruling, not because of the issue of same-sex marriage, but because of the "alleged illegality of Taiwan's Government and courts".[52]

Public opinionEdit

A poll conducted in 2009 showed that over 30% of the Beijing population supported same-sex marriage, while the rest were unsure or opposed.[53]

A 2014 survey found that 74% of Hong Kong residents supported granting same-sex couples either all or some of the benefits associated with marriage.[54]

A 2015 Ipsos opinion poll found that 29% of Chinese supported same-sex marriage, and another 29% supported civil unions or partnerships which would offer some of the rights of marriage. 21% were against any legal recognition for same-sex couples. The poll, however, reflects the online population which tends to be more urban.[55]

A 2017 University of Hong Kong poll found that 50.4% of Hong Kong residents supported same-sex marriage.[56]

See alsoEdit

NotesEdit

  1. ^ Cantonese: màhnsih buhnléuih gwāanhaih;
    Zhuang: doxcaemh;[15]
    Uyghur: ھەمدەملىك, hemdemlik;[16]
    Tibetan: མཚན་མཐུན་གཉིན་སྒེག,[17][18] mtshan mthun gnyin sgeg;
    Mongolian: иргэний түншлэл, Mongolian script: ᠢᠷᠭᠡᠨ ᠦ ᠲᠦᠩᠰᠢᠯᠡᠯ;[19]
    Korean: 시민동반자관계, simindongbanjagwangye;
    Portuguese: parceria civil;
    Hmong: kev sib raug zoo;[20]
  2. ^ Cantonese: tùhngchāi
  3. ^ Cantonese: Gēibúnfaat
  4. ^ Cantonese: Jūngwàh Yàhnmàhn Guhng Wòhgwok Fānyān Faat;
    Uyghur: ﺟﯘﯕﺨﯘﺍ ﺧﻪﻟﻖ جۇمھۇرىيىتى نىكاھ قانۇنى, Jungxua Xelq Jumhuriyiti Nikah Qanuni;
    Tibetan: ཀྲུང་ཧྭ་མི་དམངས་སྤྱི་མཐུན་རྒྱལ་ཁབ་ཀྱི་གཉེན་སྒྲིག་བཅའ་ཁྲིམས, krung hwa mi dmangs spyi mthun rgyal khab kyi gnyen sgrig bca' khrims;[43]
    Mongolian: БНХАУ-ын Гэрлэлтийн тухай хуульд,[44] Mongolian script: ᠪᠦᠭᠦᠳᠡ ᠨᠠᠶᠢᠷᠠᠮᠳᠠᠬᠤ ᠬᠢᠲᠠᠳ ᠠᠷᠠᠳ ᠤᠯᠤᠰ ᠤᠨ ᠭᠡᠷᠯᠡᠯᠲᠡ ᠶᠢᠨᠲᠤᠬᠠᠢ ᠬᠠᠤᠯᠢ ᠳᠤ;
    Korean: 중화인민공화국의 결혼법은, Junghwainmingonghwagugui Gyeolhonbeobeun;
    Portuguese: Lei do Casamento da República Popular da China
  5. ^ Cantonese: Jūnggwok Tùhngsing Fānyān Tàihon

ReferencesEdit

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  3. ^ "CHINA: Changes to Immigration Laws". Newland Chase. 15 April 2013.
  4. ^ Landmark win for gay Hong Kong civil servant over husband’s benefits
  5. ^ More gay Hong Kong civil servants could marry abroad for spousal benefits, union says
  6. ^ Hong Kong gov’t appeals High Court ruling on marriage benefits for gay couple
  7. ^ Cheung, Karen (11 December 2017). "Court hears gov't's appeal after gay Hong Kong civil servant won spousal benefits for husband". Hong Kong Free Press.
  8. ^ Government has ‘legitimate aim’ to protect traditional marriage, Hong Kong appeal court rules, overturning landmark decision on benefits for same-sex spouses, South China Morning Post, 1 June 2018
  9. ^ Lau, Chris (7 May 2019). "Government can't justify discriminatory treatment, lawyer for gay Hong Kong civil servant argues in final appeal over spousal rights". South China Morning Post.
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  11. ^ Hong Kong court issues landmark ruling in same-sex partner's visa appeal
  12. ^ Hong Kong criticised for refusing to accept visa ruling for British lesbian The Guardian, 2 November 2017
  13. ^ Hong Kong’s highest court upholds landmark judgment in favour of lesbian expat QT, Hong Kong Free Press, 4 July 2018
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  15. ^ SAWLOIH CUENGH GUN 壮汉词汇
  16. ^ The Uyghur - English Dictionary
  17. ^ (in Standard Tibetan) སྤྱི་ནོར་ལགོང་ས་ལསྐྱབས་མགོན་ཆེན་པོ་མཆོག་སུ་ལྦི་ཌེན་དུ་ལཉབས་སོར་བར་ལཁོད་པ།
  18. ^ (in Standard Tibetan) དགའ་སྤོབས་ཆེ་བའི་མཚན་མཐུན་བཟའ་ཟླ་གཉིས།. Tibet Times
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  22. ^ Sobel, Ariel (24 August 2018). "Queer Hong Kong Woman Sues for Civil Union Rights". The Advocate.
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  25. ^ Milton, Josh (26 April 2019). "Hong Kong judge rules religion should not define what marriage is". Gay Star News.
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  27. ^ Batchelor, Tom (31 May 2019). "Marriage 'no longer special if gay people allowed to wed, says Hong Kong government". Independent.co.uk.
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  29. ^ Kang Youwei 1958/2005: Ta T'ung Shu: the One-World philosophy of Kang Yu-wei. Translated by Lawrence Thompson. London: George Allen and Unwin.
  30. ^ LGBTQ rights in mainland China looking gloomy after Taiwan’s new ruling on same-sex marriage The Conversation
  31. ^ China rights: Gay people pledge not to enter into sham marriages BBC News
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  38. ^ Gay man sues for right to marry in China’s first same-sex marriage lawsuit South China Morning Post, 6 January 2016
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  40. ^ Gay Couple Vows Wedding to Be First of Many
  41. ^ "Two gay men challenge Hong Kong ban on same-sex marriage". Reuters. 4 January 2019.
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  43. ^ THL Tibetan to English Translation Tool
  44. ^ (in Mongolian) Хятадад гэрлэлт сүүлийн дөрвөн жил дараалан буурчээ
  45. ^ Gay marriage advocates ask legislators to present their proposals at the two sessions
  46. ^ Derek Yiu (2012-03-04). "Leading Chinese scholar seeking support for gay marriage bill again". Gay Star News. Retrieved 2013-08-17.
  47. ^ Gay advocates hope leaders see marriage poll
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  50. ^ Intercountry Adoption | China | Who Can Adopt Archived 2011-03-23 at the Wayback Machine
  51. ^ Raymond Li raymond.li@scmp.com. "Gay wife of Iceland's prime minister visits Beijing university". Scmp.com. Retrieved 2013-08-17.
  52. ^ Chinese attitudes towards gay rights
  53. ^ Tania Branigan in Beijing (2009-02-25). "Gay rights China Beijing". London: Guardian. Retrieved 2013-08-17.
  54. ^ What four secretly gay civil servants in Hong Kong feel about the government appealing against city’s landmark LGBT ruling, South China Morning Post, 1 June 2018
  55. ^ Of 23 Countries Surveyed, Majority (65%) in 20 Countries Support Legal Recognition of Same-Sex Unions
  56. ^ Support for same-sex marriage in Hong Kong grows as new study shows attitudes to LGBT community are changing in city