Discussing Legalizing Same-sex Marriage in China

Discussing Legalising Same-sex Marriage in China Stream. 12th March 2004

Discussing Legalizing Same-sex Marriage in China

It is a long-established belief all around the world that marriage is a legally accepted relationship only between man and woman as husband and wife. However, such a widely held belief has been challenged greatly in recent decades by the unprecedented public awareness of the existence of homosexuality. More and more homosexuals have begun to ask and fight for equal marital rights as heterosexuals. In China, where the homosexuality has just been officially admitted as non-pathological three years ago, the voice of legalizing homosexual marriage has also been widely heard but probably not as loudly as in western countries. This essay will try to give a general overview of the discussion about legalizing homosexual marriage in China and will first briefly introduce the history of homosexuality in China, and then evaluate the issue on both sides.

Homosexuality is a term coined by a Hungarian doctor, Karl Maria Benkert, in the mid-nineteenth century, used to describe a sexual and emotional interest in members of one's own sex (Moran 1996: 3). But it is argued that as long as there have been humans there has been homosexuality. Indeed in China traditional same-gender relations among older and younger men existed for a long time, perhaps as far back as the Bronze Age, but certainly by the time of the Zhou Dynasty, which is from 1122 to 256 B.C. Because most historical reports are concerned with men, there is very little to be found about women’s sexual relations and lesbianism in old China, though in the nineteenth century a special economic role and class of women silk workers in the Pearl River valley provided the historical basis for women homoerotic relations (Herdt 1997: 70-71). Actually, overall the tradition has portrayed a society in which homosexuality was relatively open and tolerated. Only in the final centuries of dynastic history did intolerance begin to build as the result of a more stringent application of Neo-Confucian rhetoric regarding the family. This growing antipathy accelerated in the twentieth century, in which the homosexual tradition became almost dead and virtually unknown, even among the educated, and homosexuality indeed had been condemned. (Hinsch 1990: 162-163) Much more recently, although people have been gradually aware of such an issue, the majority of the Chinese population still regard homosexuality as something abnormal and pathological. Just on 20th April 2001, the third version of ‘The Criteria of Classification and Diagnosis for Metal Disorder of the People’s Republic of China’ officially and legally excluded homosexuality from the various categories of mental illnesses, (), which is nineteen years later than America and seven years later than the World Health Organisation. Li Yinhe, one of the most famous Chinese contemporary sociologists, has already proposed to amend Chinese Marriage Law by using the word ‘mate’ or ‘couple’ instead of the current terms ‘husband and wife’ in order not to specify the gender (Li 1998). Although these acts were considered to be great improvements of Chinese society, this renewed awareness has not resulted in a revival of the homosexual tradition; the next step in legalizing marital rights for homosexuals is still not a simple job.

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Of all the arguments that homosexuals give for their rights to marriage, the most basic, and most important, is simply that homosexuals are entitled to all the rights that heterosexuals have. The law should protect an individual’s right to marry the person they wish, regardless to the fact that the contracting parties of the marriage may be different sexes, if homosexuality has been accepted as normal and natural thing. Without the legal rights to marry, same-sex couples do not enjoy the most important rights concerned with marriage—consortium, which entitles a spouse to equal rights to the company of, help of, affection of, heirship of and sexual relations with his or her mate, and neither have rights like family health coverage, child custody, tax benefits and pension plans. Even if two homosexuals have been together for more than twenty years, they still are ‘single’ on all official documents. Marriage defines certain relationships more valid in lots of aspects than all the others. However, gay and lesbian relationships are probably almost at the bottom of the ranking in terms of social acceptance and importance, so it could be argued that giving homosexuals marital licences will ease the discrimination that they regularly suffer from the public and demonstrate great respect to individual rights and freedom.

In other words, without the marital rights that homosexuals deserve, they could only keep their relationships underground, which would cause various social problems. As mentioned above, marriage defines certain relationships much more powerful and valid than lots of others. So a relationship will be quite easy to break up without marriage. This is even the case with the traditionally approved heterosexuality, let alone homosexuality, which is evaded and rejected by the general public. Therefore, it is not strange that homosexuals often change their sexual partners and sometimes have to satisfy their libido by resorting to some incidental sexual encounters, actions which to a large extent give reasons for the AIDS crisis among homosexuals. Also there is a new-common association of homosexuality with violent and erotic crime among Chinese population nowadays, which actually lacks precedent in native traditions. Convinced of the moral and psychological deviance of homosexuals, society relegates them to its fringes, where homosexuality becomes synonymous with danger, violence, and crime. Having not been given a proper way to live, which they definitely deserve, the situation of homosexuals is difficult and uncertain. Some media sources even stated that ‘besides going against traditional Chinese moral concepts and leading young people astray by luring them to practice it, homosexuality simply constitutes a social perversion’. Under such a social condition, filled with their frustration at their inability to meet same-sex partners, homosexual men are more commonly eventually forced into unfulfilling false marriages with unsuspecting husbands or wives. It could be argued that these families are unhappy from the outset, which no doubt attributes more or less to the unstableness of society.

Beyond such social pressures, homosexuals in the People’s Republic of China also fear legal prosecution as well. Although the Chinese criminal code lacks a specific law prohibiting homosexuality, vaguely worded prohibitions against ‘revolting behaviour’ and ‘hooliganism’ have been used to prosecute homosexuals. () Also because of such a criminal code that does not put homosexuality into account—the current Chinese criminal code has not mentioned the term of ‘homosexuality’ or any terms of the similar meaning at all, the homosexual crime like homo-indecency sometimes even could escape from prosecution. This is not legal tolerance, but apparently the negligence of the Chinese law. In that case, homosexuals even cannot have the basic legal rights that everybody has—their safety has been threatened without necessary legal protection! It should be suggested that the starting point of legalizing homosexual marital rights would be an essential part of the legal change towards homosexuality.

However, the opposing voice also deserves a close scrutiny. As a group of people valuing the traditional concept of family, kinship and descent so much, Chinese people still, to an extremely large degree, regard homosexuality as a kind of unbelievable and abnormal sexual conduct. Many people even think that it is just a kind of fad, which will only make its way through a decade or two. Therefore, the discussion around this issue is quite limited within the academic field. Compared with the intensive debate among Chinese scholars, the extent of public awareness is still relatively low. In the view of the process of legalization, the law could only be the product according to the social improvements that have already taken place, but should not be used to initiate social improvement. Otherwise, social instability might be caused due to the incomprehension of the general public.

Moreover, whether to legalize same-sex marriages or not is also concerned with the duty of the law, which has been controversial for a long time. Ascending to the original purpose for establishing the legal system ancient China, it is first of all used to moralize the whole of society: to offer a moral standard for people by approving or disapproving certain things. However, this belief has greatly changed with time, and one of the core thoughts for legalisation nowadays is to respect individual rights and freedom. But China is a country where law intervenes the public morality much more often and more significantly than many other countries. So, confronting the long-believed morality passing through generations, the new proposal for individual rights will necessarily take a relatively long time to put into real practice.

Also, it is equally important to talk about the function of marriage. It could be argued that the most basic and significant function fulfilled by marriage is its social function: the descent of family and race. Heterosexual marriage takes the task of reproducing first for its own family and then for the race and the whole of human life. So, it could be argued that under the condition of private ownership, this kind of function will not cease because the estate and family wealth need to be handed down. Apart from that function, the second function comes: the emotional function of getting love and help from each other. Although these two could not be considered by separating them, it could be argued that only until humans do not need to reproduce through marriage, could the marriage totally become the emotional bond just between the two parties of the marital contract. Therefore, back to considering same-sex marriages, the first stated function of marriage could not be performed, though reproduction could be fulfilled by cloning however unnatural and difficult to achieve in a large area. Therefore, from this point of view, society seems not to have developed enough for the legalization of same-sex marriages.

Evaluating both sides of the discussion, it could be said that although it is really a minority, homosexuality is a perfectly natural characteristic on the human spectrum of sexuality. As something that one does not choose but rather one is, it should deserve all the respects and rights all the others have, marital right is of no exception. It has been found that some countries and regions in other parts of the world have already legalized the same-sex marriage: most of them are in Northern Europe including Denmark, Sweden, Norway, Iceland, Holland and Belgium, and also in some states of America (), although some of which are entitled by ‘civil unions’. However, with the special cultural and social backgrounds, China still has a long way to go to eliminate such a marital discrimination.

(1760 words)

Bibliography

Herdt, Gilbert. 1997. Same Sex, Different Cultures: Exploring Gay and Lesbian Lives. Westview Press
Hinsch, Bret. 1992. Passions of the Cut Sleeve: The Male Homosexual Tradition in China. University of California Press
Li, Yinhe. 1998. Sub-culture of Homosexuality. China Nowadays Press
Moran, Leslie J. 1996. The Homosexual(ity) of Law. Routledge: London and New York)
The Website of China Popularisation of Science for Sexual Knowledge : 8th March 2004
The Website of Healthy Sex Education in China : 9th March 2004
The Website of China Criminal Law Online: : 10th March 2004