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Same-sex marriage in China? The strategic promulgation of a progressive policy and its impact on LGBT activism

  • TIMOTHY HILDEBRANDT
Abstract

Using the case of same-sex marriage in China, this article explores two fundamental questions: What motivates a non-democratic state to promulgate a progressive human rights policy? More importantly, when a non-democratic state adopts such policies, what is the impact on activism? I argue that same-sex marriage legislation could be used strategically to improve China's human rights reputation. While this would extend a pinnacle right to gays and lesbians, the benefits might not outweigh the costs: I show that when imposed from above, a same-sex marriage law would incur opportunity costs on activism; the passage of this progressive policy would eliminate an important issue around which the Lesbian, Gay, Bisexual and Trans-gender/-sexual (LGBT) community might develop. Moreover, even if such policy is promulgated, the right to marry will do little to challenge the larger social pressures that make life difficult for LGBT Chinese.

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1 Xinhua (16 March 2006).

2 In this article I use the term ‘Same-sex marriage’ rather than ‘Same-sex union’ simply because LGBT activists in China overwhelmingly use the term ‘tongxing hunyin [same-sex marriage]’.

3 Although some groups were LGBT in name, few were so in practice. The vast majority of informants for this research were leaders of organisations that represented self-identified gay men or lesbian women. For reasons I explore elsewhere (Forging a Harmonious Middle Path: The Rise of Social Organizations and the Persistance of the Authoritarian State in China, book manuscript, 2010), there is limited networking between groups; organisations representing gay men and lesbian women have, in recent years, grown apart. As for bisexuals, one activist noted that the number of bisexual men in China is probably far higher than in the West, due to the frequency of homosexual men who marry straight women to avoid social or family pressure. There are no known groups working exclusively for the interests of transsexual/gendered persons. However, a handful of gay men‘s groups have reached out to this community, particularly in China‘s southwestern Yunnan province. With these qualifications in mind, I use LGBT throughout this article as shorthand for the universe of these types of activists, social organisations, and citizens.

4 Although the government stated its intentions in 2007, the ban was not officially reversed until April 2010.

5 Participant observation, Kunming, China (11 November 2007).

6 Kollman, Kelly, ‘Same-Sex Unions: The Globalization of an Idea’, International Studies Quarterly, 51 (2007), pp. 329357 .

7 Because few of these groups are legally registered, the exact number of gay and lesbian groups is impossible to ascertain. However, insiders believe China is home to roughly 200 groups that primarily work for the interests of gay men, and less than fifteen for lesbian women. This imbalance is best explained by the political and economic opportunities afforded to gay men due to HIV/AIDS; lesbian women are not identified as a high-risk group for HIV/AIDS and therefore have a more difficult time securing funding and government sponsors (Hildebrandt, Forging).

8 The data presented in this article are derived from 25 in-depth anonymous interviews of gay and lesbian activists in China, conducted from June 2007 to April 2008, as well as a survey of nearly 50 LGBT social organisation leaders administered in March 2008. Data were collected as part of a larger project examining the relationship of Chinese social organisations and the state. Hildebrandt, Forging.

9 Keck, Margaret and Sikkink, Kathryn, Activists Beyond Borders (Ithaca: Cornell University Press, (1998) .

10 Kollman, ‘Same-sex’.

11 At a meeting of the Global Fund, the leader of a domestic NGO implored the Global Fund to pressure the government to include more truly independent NGOs in its HIV/AIDS work. The Chair of the Fund promptly replied that while he was sympathetic to the issue raised by the activist, because the Global Fund is ‘country-led’ and relies on a strong partnership with governments in the countries it operates, it will not pressure these governments to do one thing or another. He was emphatic in noting that the Fund must work within the framework of existing national laws and not oppose them (Participant observation, Kunming, China (11 November 2007).

12 Timothy Hildebrandt and John A. Zinda, ‘The False Promise of TNAs in China’, working paper (University of Wisconsin-Madison, 2009); Wu, Fengshi, ‘Double-mobilization: Transnational Advocacy Networks for China‘s Environment and Public Health’, unpublished dissertation (University of Maryland, 2005) .

13 Risse, Thomas, Roppe, Stephen, and Sikkink, Kathryn, The Power of Human Rights (New York: Cambridge University Press, (1999) ; Lutz, Ellen L. and Sikkink, Kathryn, ‘International Human Rights Law and Practice in Latin America’, International Organization, 54:3 (2000), pp. 633659 .

14 Hafner-Burton, Emilie M. and Tsutsui, Kiyoteru, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’, American Journal of Sociology, 110:5 (2005), pp. 13731411 .

15 Jelena Subotic, ‘Domestic Use of International Norms: Alternative Mechanisms for Compliance’, Presented at Annual APSA Meeting (2007), p. 16.

16 Subotic, ‘Domestic’.

17 Kollman, ‘Same-sex’.

18 FitzGibbon, Scott T., ‘The Formless City of Plato‘s Republic: How the Legal and Social Promotion of Divorce and Same-Sex Marriage Contravenes the Principles and Undermines the Projects of the Universal Declaration of Human Rights’, Issues in Legal Scholarship, Article 5 (2005) .

19 Kitzinger, Celia and Wilkinson, Sue, ‘Social Advocacy for Equal Marriage: The Politics of “Rights” and the Psychology of ‘Mental Health’, Analyses of Social Issues and Public Policy, 4:1 (2004), pp. 173194 . Arendt notes that ‘even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to “life, liberty and the pursuit of happiness” proclaimed in the Declaration of Independence, and to this category the right to home and marriage unquestionably belongs’. Arendt, Hannah, ‘Reflections on Little Rock: A reply to critics’, Dissent (Spring, 1959), pp. 179181 . Thus, the broad category of human rights is strengthened, not weakened, by the inclusion of same-sex marriage. Claims about rights for gays and lesbians as a human right are explored in legal and gay identity scholarship. Walker, Kristen L., ‘Capitalism, Gay Identity, and International Human Rights Law’, Australian Gay and Lesbian Law Journal, 9 (2000), pp. 5873 ; Wilets, James, ‘Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective’, Albany Law Review, 60 (1997), pp. 9891050 . In two landmark court cases in the US, the victorious sides used human rights rationales to successfully strike down the constitutionality of anti-sodomy laws nationwide (Lawrence v. Texas 2003) and legalise same-sex marriage in Massachusetts (Goodridge v. Dept. of Public Health 2003).

20 Kollman, ‘Same-sex’, p. 332.

21 Massell, Gregory J., ‘Law as an Instrument of Revolutionary Change in a Traditional Milieu: the Case of Soviet Central Asia’, Law & Society Review, 2:2 (1967), pp. 179228 .

22 Biehl, Janet, ‘“Ecology” and the Modernization of Fascism in the Germany Ultra-Right’ in Biehl, Janet and Staudenmair, Peter (eds), Ecofascism: Lessons from the German Experience (San Francisco: AK Press, (1995) .

23 Forsyth, Tim, ‘Social Movements and Environmental Democratization in Thailand’, in Jasanoff, Shelia and Martello, Marybeth Long (eds), Earthly Politics: Local and Global in International Politics (Cambridge: The MIT Press, 2004), pp. 195216 .

24 Weinthal, Erika, State Making and Environmental Cooperation (Cambridge: The MIT Press, (2002) .

25 Habermas, Jurgen, The Structural Transformation of the Public Sphere (Cambridge: MIT Press, (1989), p. 33 .

26 Oswin, Natalie, ‘The End of Queer (As We Knew It): Globalization and the Making of a Gay-Friendly South Africa’, Gender, Place and Culture, 14:1 (2007), pp. 93110 .

27 Muller, Christina, ‘An Economic Analysis of Same-Sex Marriage’, unpublished thesis (Universidad Compultense Madrid, 2001), p. 34 .

28 Semuels, Alana, ‘Gay Marriage a Gift to California‘s Economy’, Los Angeles Times (2 June 2008) .

29 Reuters (26 November 2008).

30 King, Michael and Bartlett, Annie, ‘What Same Sex Civil Partnerships May Mean for Health’, Journal of Epidemiology & Community Health, 60:3 (2006), pp. 188191 .

31 Muller, ‘Economic’, p. 36.

32 Kollman, ‘Same-sex’, p. 351. Kollman uses a country‘s average annual church attendance as a measure of ‘religiousity’.

33 In recent years, China has seen an increase in the number of self-identified Buddhists in the country; we could, therefore, just as easily explore other Buddhist countries to examine the cultural impediments to same-sex marriage or homosexuality. However, the results would likely be the same for Thailand, one of the most Buddhist countries in south-east Asia, has one of the most dynamic gay communities on the continent.

34 Voice of America (27 September 2008).

35 Taipei Times (14 September 2007).

36 D’Emilio, John, ‘Capitalism and Gay Identity’, in Snitow, , Stansell, & Thompson, (eds), Powers of Desire: The Politics of Sexuality (New York: The Monthly Review Press, (1983) .

37 Throughout modern Chinese history, tradition has been dismantled to further state goals: Old Confucian traditions were attacked during the Great Proletarian Revolution in 1949 while other remnants where eradicated during subsequent volatile government-sponsored campaigns, such as the Anti-Rightist Campaign, Great Leap Forward and Cultural Revolution.

38 For a far more detailed exploration of marriage law in China see Palmer, Michael, ‘The Re-Emergence of Family Law in Post-Mao China: Marriage, Divorce and Reproduction’, The China Quarterly, 141 (1995), pp. 110134 .

39 Xinhua (5 September 2007).

40 Ibid. (25 January 2008).

41 Palmer, ‘Re-Emergence’.

42 Altman, Dennis, ‘Sexuality and Globalization’, Sexuality Research & Social Policy, 1:1 (2004), pp. 6368 .

43 Lau, M. P. and Ng, M. L., ‘Homosexuality in Chinese Culture’, Culture, Medicine & Psychiatry, 13 (1989), pp. 465488 .

44 Polikoff, Nancy D., ‘We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender in Every Marriage”’, Virginia Law Review, 79 (1993), pp. 15351550 .

45 Zhang, K. and Beck, E. J., ‘Changing Sexual Attitutes and Behaviour in China’, AIDS Care, 11:5 (1999), pp. 581589 .

46 {http://blog.sina.com/cn/s/blog_473d533601009vfr.html} accessed 10 July 2008.

47 Attitudes among younger Chinese are arguably more progressive than the general public. Studies conducted in other Asian countries that share cultural traditions support this assumption: in a 2007 study of 300 junior- and high-school students in Vietnam, 80 per cent of respondents said they did not believe homosexuality was ‘bad’; only two per cent reported that they viewed homosexuals with ‘contempt’ (HCMC University of Pedagogy).

48 The prevalence of ‘tolerance’ or ‘ambivalence’ toward homosexuals (and widespread acceptance of co-habitation) might be representative of a traditionally more fluid spectrum of socially acceptable behaviour (for example, see Hinsch, Brett, Passions of the Cut Sleeve: The male homosexual tradition in China (Berkeley: University of California Press, (1992) or, contemporarily, more open attitudes on sexual behaviour. Both of these should be distinguished from homosexuality as a ‘social identity’ which, excepting the small openly gay population in China, has not yet developed in China as it has in the West. This lack of a widely respected gay social identity might also help explain why there has been no large domestic push for same-sex marriage or other gay-related rights. At the same time, it should not serve as a significant barrier in the way of a government-led move toward such a policy. I am grateful to an anonymous reviewer for making this point.

49 Zald, Mayer N. and Ash, Robert, ‘Social Movement Organizations: Growth, Decay and Change’, Social Forces, 44:3 (1966), pp. 327341 .

50 LGBT activist interview, Kunming, China (13 August 2007).

51 An additional explanation for this variation might be due to colonial legacies. Anti-gay legislations can be traced back to the period of colonisation of the city-state by the British; as explained in footnote 55, other colonies in the region share similarly worded (and numbered) laws the forbid homosexual sex.

52 Marshall, Monty S. and Jaggers, Keith, ‘Polity IV Country Reports’, Polity IV Project (2009) .

53 Neumayer, Eric, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’, Journal of Conflict Resolution, 49:6 (2005), pp. 925953 .

54 Wilkinson, Sue and Kitzinger, Celia, ‘In Support of Equal Marriage: Why Civil Partnership is Not Enough’, The Psychology of Women Section Review, 8:1 (2006), pp. 5457 .

55 Asthana, Sheena and Oostvogels, Robert, ‘The Social Construction of Male “Homosexuality” in India: Implications for HIV Transmission and Prevention’, Social Science and Medicine, 25 (2001), pp. 707721 . India’s penal code 377 outlawed any ‘carnal intercourse’ including homosexuality. The code‘s origins predate independence in 1947; perhaps not surprisingly, another former British colony, Singapore, shares a similar penal code – and number: 377A – that forbids same-sex intercourse.

56 Narayanan, A., ‘Nepal’s Supreme Court OKs Same-Sex Marraige’, Pew Forum on Religion and Public Life (21 November 2008) . Available at: {http://pewforum.org/news/rss.php?NewsID=17001}.

57 BBC (27 March 2008). Although same-sex marriage is mentioned as a possible result of revisiting policies, there has not been an insistence on such ‘marriage legislation’ for fear that it might slow or kill the legislation altogether.

58 Zhou, Qi, ‘Conflicts over Human Rights between China and the US’, Human Rights Quarterly, 27 (2005), pp. 105124 .

59 Contrary to Subotic, ‘Domestic’.

60 Ann Johnson, Kay, Women, the Family, and Peasant Revolution in China (Chicago: University of Chicago Press, (1985) .

61 Peerenboom, Randall P., ‘What‘s Wrong with Chinese Rights: Toward a Theory of Rights with Chinese Characteristics’, Harvard Human Rights Journal (1993), pp. 2957 .

62 Xinhua (7 September 2007).

63 Ibid. (12 September 2007).

64 Ibid. (15 February 2008).

65 Ibid. (19 October 2007).

66 Ibid. (23 November 2007).

67 Ibid. (1 January 2008).

68 Government official interview, Kunming, China (11 November 2007). In October 2009, the US government finally repealed its 22-year ban on the travel of HIV-positive individuals into the country, approximately two years after the Chinese government announced its policy change.

69 US Department of State, ‘Country Reports on Human Rights Practices: China’ (11 March 2008). Available at: {http://www.state.gov/g/drl/rls/hrrpt/2007/100518.htm}.

70 Cuba has previously taken a similar route. From his hospital bed in 2007, Fidel Castro took the time to criticise the West, and US in particular, for its inadequate attention to climate change. Associated Press (9 September 2007).

71 Xinhua (18 March 2008).

72 Ibid. (26 March 2008).

73 Ibid. (28 March 2008).

74 Ibid. (1 April 2008).

75 Ibid. (18 March 2008).

76 Strang, David, and Meyer, John W., ‘Institutional Conditions for Diffusion’, Theory and Society, 22:4 (1993), pp. 487511 .

77 A possible exception in the literature is Subotic, who argues that the strategic use of norms serves to de-legitimise it, dulling what was once a ‘sharp instrument’ (2007).

78 Hafner-Burton and Tsutsui, ‘Human’.

79 Subotic, ‘Domestic’.

80 See, for example, Rauch, Jonthan, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America (New York: Macmillan, (2004) .

81 Although nearly all interviewees cited 1997 as the year the government ‘legalized homosexuality’ this is a simplistic and somewhat misleading characterisation of the state‘s policy. Homosexuality has never been explicitly illegal since the founding of the People‘s Republic of China in 1949. In 1957, the Supreme Court ruled that consensual sex between same-gender adults was not criminal. Zhang, B. C. and Chu, Q. S., ‘MSM and HIV/AIDS in China’, Cell Research, 15:11–12 (2005), pp. 858864 . However, homosexual men were still arrested by local police under Article 106 of the Chinese Criminal Code that prohibited general ‘hooliganism’ (Ruan, Fangfu, Sex in China: Studies in Sexology in Chinese Culture (New York: Plenum, (1991) . The Ministry of Public Safety made some efforts to protect the rights of gay men and women by reiterating the 1957 ruling in 1993 but it was not until 1997 that ‘hooliganism’ was deleted from the criminal code. Therefore, this date has become widely used as a proxy for the ‘legalization’ of homosexuality in China.

82 LGBT activist interviews: Kunming, China (13 August 2007); Chengdu, China (14 November 2007); Chengdu, China (15 November 2007); Beijing, China (17 December 2007). One well-connected gay activist suggests that a gay marriage law could be legally required to help curb the spread of HIV/AIDS, noting that gay men who marry women and continue to have gay sex is the main reason that AIDS will continue to spread in China. An article published by the state-run news agency cited one of the most prominent Chinese academics on homosexuality and HIV/AIDS making the same argument. Xinhua (20 March 2009).

83 Nuemayer, ‘Do International’.

84 LGBT activist interview, Chengdu, China (14 November 2007).

85 Hildebrandt, Forging. As an example, in interviews several activists noted that the central government promulgated a law to prohibit employment discrimination against people with Hepatitis B but infected individuals continue to be fired when their status becomes known to their employers.

86 Interview with LGBT activists: Beijing, China (11 October 2007); Chengdu, China (15 November 2007); Kunming, China (27 November 2007); Kunming, China (29 November 2007).

87 Zald and Ash, ‘social’.

88 Chong, Dennis, Collective Action and the Civil Rights Movement (Chicago: University of Chicago Press, (1991) .

89 Shellenberger, Michael and Nordhaus, Ted, ‘The Death of Environmentalism’, Grist Magazine (13 January 2005) .

90 Wissenburg, Marcel and Levy, Yoram (eds), Liberal Democracy and Environmentalism: The End of Environmentalism? (New York: Routledge, (2004) .

91 Tarrow, Sidney, ‘Social Movements in Contentious Politics: A Review Article’, American Political Science Review, 90 (1996), p. 874 .

92 Gamson, William, ‘Social Movements and Cultural Change’, in Giugni, , McAdam, , Tilly, (eds), From Contention to Democracy (New York: Rowan & Littlefield, (1998) .

93 LGBT activist interview, Hong Kong, China (15 October 2007).

94 LGBT activist interview, Beijing, China (17 December 2007).

95 Although the number of gay men NGOs far outstrips lesbian organisations, the latter have devoted considerably more attention to issues like human rights, discrimination, and same-sex marriage than the former. This variation is primarily due to differences in organisation funding. Gay groups enjoy far more funding than lesbian groups, but these monies are almost all intended to support HIV/AIDS-related activities. So while lesbian groups are not flush with cash, they are freer to work on a larger portfolio of issues, including same-sex marriage (Hildebrandt, Forging).

96 Participant observation, Beijing, China (14 February, 2008). Pedestrian reactions provide more support to arguments above about culture: the worst reaction was when a pedestrian returned the rose after being told why they were given out, while most graciously accepted the rose and listened politely (support or ambivalence), while one retiree was curious, having never heard of homosexuality (ignorance).

97 This most recent gathering attracted a significant amount of international media attention. These accounts treated the situation with awe, expressed surprise that it was not shuttered by the government, and suggested that the LGBT community was launching a broad-based campaign for same-sex marriage. Based upon my extensive interaction with members of the community, I disagree with this last suggestion.

98 Gamson, Josh, ‘Silence, Death, and the Invisible Enemy: AIDS Activism and Social Movement “Newness”’, Social Problems, 36:4 (1989), pp. 351364 .

99 ‘New Era for Gay Rights Movement’, The Prague Post (10 January 2007).

100 Recent events in the US raise an intriguing counter-factual. What happens when rights are not given, or given but then rescinded? If the passage of Proposition 8 in California is any indication, the loss of rights can lead to greater mobilisation that existed even before the right was extended. In response to the referendum‘s success, new groups have emerged and there has been a re-doubling of efforts. Thus, when rights must be fought hard for, activism will increase; in a place where civil society is still fledgeling, like China, this fight for rights is necessary for it to become stronger.

101 Along similar lines, advocating for and achieving particular rights rather than general human rights might also degrade the virtue of the entire right. Dousinzas argues that individual passage of certain rights lends itself to a phenomenon that ‘the more rights I have, the smaller my protection from harms’. Dousinzas, Costas, ‘The End(s) of Human Rights’, Melbourne University Law Review, 26 (2002), p. 445 . Proposed legislation in Hong Kong to end discrimination against homosexuals was derided by critics along similar lines. They argued that the law would threaten rights of free expression, penalising people for disagreeing with homosexuality, undercutting civil liberties. The Standard (23 May 2005).

102 No interviewee entertained the idea of having children with their same-sex partners; they are doubtful that they could pursue this option legally.

103 Aside from affecting individuals, it could also cause anger with the state for passing both a law that prohibited them from having an ‘heir and a spare’, and a law that essentially validated their child‘s homosexuality, thereby leaving them without any grandchildren.

104 At the state level, confrontations with sexuality have occurred in other contexts; it can even be used for political purposes. Irr notes that ‘homosexuality was not generated entirely from within the same-sex community’ but the result of an ‘array of political and policing strategies’ (Irr, Caren, ‘Queer Borders: Figures from the 1930s for US-Canadian Relations’, American Quarterly, 49:3 (1997), p. 525 ), while Altman foresees the possibility that many countries will build a nationalist version of homosexuality in Asia. Altman, Dennis, ‘Rupture or Continuity? The Internationalization of Gay Identities’, Social Text, 14:3 (1996), pp. 7794 . In China, Cui has noted that sexuality has become a dominant narrative of nation building. Cui, Shuqin, Women Through the Lens: Gender and Nation in a Century of Chinese Cinema (Honolulu: University of Hawaii Press, 2003) . Oswin argues that the push for inserting sexual orientation into South Africa‘s post-apartheid constitution was done so by new minorities in the government who feared a general backlash on all non-majorities; it was also a key part of the country’s effort to create its image as a champion for human rights, not a violator of them (Oswin, ‘End’).

* I gratefully acknowledge several individuals for their invaluable insights: Helen Kinsella, Edward Friedman, Melanie Manion, Cheng Li, Damien Lu, Courtney Hillebrecht, Peter Holm and two anonymous reviewers. Research was supported by a National Science Foundation Integrated Graduate Education and Research Traineeship at University of Wisconsin-Madison and the Center for Asian Democracy at University of Louisville. Earlier versions of this article were presented at the Wisconsin International Relations Colloquium and the Midwest Political Science Association Conference.

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