Recognition of same-sex unions in China
China recognizes neither same-sex marriage nor civil unions. Since October 2017, China has granted same-sex couples various legal rights, including decisions about medical and personal care and property management, through a guardianship system. In addition, two rulings by the Hong Kong Court of Final Appeal ensure that the same-sex partners of Hong Kong residents can receive spousal/dependent visas and spousal benefits.
- 1 Immigration rights
- 2 Guardianship system
- 3 Civil partnerships/unions
- 4 Same-sex marriage
- 5 Public opinion
- 6 See also
- 7 Notes
- 8 References
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.
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. In May, however, the Hong Kong Government appealed the ruling. The Court of Appeal began examining the case in December 2017, 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. The couple appealed the decision to the Court of Final Appeal. The appeal was heard on 7 May 2019. 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.
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. The ruling was labelled "a big win" by Raymond Chan Chi-chuen, Hong Kong's first openly gay lawmaker. The Hong Kong Government appealed the ruling in November 2017, and it was upheld in July 2018 by the Court of Final Appeal. The ruling became effective on 19 September 2018.
In March 2017, the National People's Congress amended Chinese law so that "all adults of full capacity are given the liberty of appointing their own guardians by mutual agreement." Previously, only those over the age of 60 or with reduced mental capacity could nominate a legal guardian. Specifically, article 33 of the amended law, which went into effect on 1 October 2017, states:
- An adult with full capacity for civil conduct may, in prior consultation with his/her close relatives, or other individuals or organisations who are willing to act as his/her guardian, determine his/her guardian in writing. The agreed guardian shall perform the guardianship duties when such adult loses or partially loses his/her capacity for civil conduct.
The system, variously called "legal guardianship" or "guardianship agreement" (Chinese: 意定监护, pinyin: yìdìng jiānhù), permits same-sex partners to make important decisions about medical and personal care, death and funeral, property management, and maintenance of rights and interests. In case one partner loses the ability to make crucial decisions (i.e. mental or physical illness or accident), his or her guardian may decide for them in their best interest. Their legal relationship can also include wealth and inheritance, or pension, depending on which additional legal documents the couple decides to sign, such as a will.
Chinese LGBT activists have welcomed the move, calling it an "important, positive first step". Peng Yazi, director of LGBT Rights Advocacy China, said after having signed guardianship papers with his partner that "If anything happens to one of us, we know our basic rights are protected". As of August 2019, guardianship agreements have been signed in Jiangsu (the first one was registered in Nanjing in late 2017), Hunan, Sichuan, Guangdong, Shanghai, Hubei and Beijing, among others. The practice is more common among older same-sex couples or couples who have been in a relationship for several years.
According to a 2019 online opinion poll on Sina Weibo, which garnered over 5 million responses, 85% of respondents were in favour of the guardianship system, while 5% were opposed; the rest being undecided.
Civil partnerships court caseEdit
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) with her female partner. The High Court heard the case in a preliminary brief 30-minute hearing in August 2018. 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. 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.
Civil unions legislative motionEdit
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.
The Chinese term tongqi (Chinese: 同妻, pinyin: tóngqī)[a] 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 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. 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, a 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.
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. 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".
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."
Following the legalisation of same-sex marriage in Taiwan, Chinese LGBT activists estimated that China is at least a decade away from legalising same-sex marriages, with the current priorities on introducing anti-discrimination laws, letting LGBT groups raise awareness without fear, and banning conversion therapy.
"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.
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. On 13 April 2016, with hundreds of same-sex marriage supporters outside, the Changsha court ruled against Sun, who said he would appeal. 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.
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.
The Marriage Law of the People's Republic of China (Chinese: 中华人民共和国婚姻法, pinyin: Zhōnghuá Rénmín Gòng Héguó Hūnyīn Fǎ)[b] 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)[c] 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. In 2012, Li Yinhe launched a new campaign to raise support for same-sex marriage legislation.
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.
There were proposals to include provisions legalising same-sex marriage in the revisions of the Civil Code which are expected to be passed by 2020. However, in August 2019, a parliament spokesman said that "limiting marriage to a relationship between a man and a woman will remain China's legal position."
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. 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.
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.
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".
Days after the same-sex marriage law came into effect in Taiwan, the People's Daily, the Communist Party's newspaper, posted a celebratory tweet, "local lawmakers in Taiwan, China, have legalized same-sex marriage in a first for Asia." The tweet, which included a rainbow-colored GIF that read "love is love" angered the Foreign Minister of Taiwan, Joseph Wu, who retaliated, "WRONG! The bill was passed by our national parliament & will be signed by the president soon. Democratic #Taiwan is a country in itself & has nothing to do with authoritarian #China. @PDChina is a commie brainwasher & it sucks. JW." The Global Times, a state-run tabloid, posted a video showcasing and praising gay social life in Beijing. The three-minute clip features interviews with local advocates as well as foreigners praising the Chinese capital's inclusive culture, complete with footage of drag queen performances. Nonetheless, Chinese authorities signaled that it would not follow Taiwan's example on same-sex marriage. An Fengshan, spokesman for China's Taiwan Affairs Office, said the Chinese Government "noted reports on the island" about same-sex marriage and that "the mainland has a marriage system of one man, one woman".
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.
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.
- Cantonese romanization: tùhngchāi
- Cantonese romanization: Jūngwàh Yàhnmàhn Guhng Wòhgwok Fānyān Faat;
Zhuang: Fap Vunhyinh;
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;
Mongolian: БНХАУ-ын Гэрлэлтийн тухай хуульд, Mongolian script: ᠪᠦᠭᠦᠳᠡ ᠨᠠᠶᠢᠷᠠᠮᠳᠠᠬᠤ ᠬᠢᠲᠠᠳ ᠠᠷᠠᠳ ᠤᠯᠤᠰ ᠤᠨ ᠭᠡᠷᠯᠡᠯᠲᠡ ᠶᠢᠨ ᠲᠤᠬᠠᠢ ᠬᠠᠤᠯᠢ ᠳᠤ;
Portuguese: Lei do Casamento da República Popular da China
- Cantonese romanization: Jūnggwok Tùhngsing Fānyān Tàihon
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