Over the past three decades, the subject of homosexuality has resurfaced in the public arena, and the small – yet growing – communities of those who openly identify as LGBT have started to gain more public visibility. However, despite this newfound exposure and acceptance, recent studies have shown that the general discourse in China remains mostly apathetic and often biased on topics of sexual orientation and gender identity. Moreover, these studies have shown that traditional feelings about family obligations and discrimination remain a key determining factor that continues to discourage many people within the local LGBT community from coming out. For example, a survey from the Beijing LGBT Center (北京同志中心) found that only 5% of those who identify as LGBT have already come out to their family, friends and co-workers.
Given the legalisation of same-sex marriage and civil unions in many countries around the world, the topic has re-emerged in Mainland China and has become even more prominent in light of the considerable public debate that led to the achievement of marriage equality in Taiwan. While public opinion towards the LGBT community is slowing becoming more accepting, considerable resistance on the part of the government remains. This resistance is easily noticeable with the government’s firm stance around the “Three No’s Policy” (三不政策) that homosexuality receives “No approval – No disapproval – No promotion”.
Sexual identity and media attitude
In many cases Mainland China sends mixed signals on LGBT issues, both on the legal and social levels. At the same time, there is a clear resistance to progress in terms of granting any legal protections to the LGBT community.
As a start, there is no specific anti-discrimination legislation pertaining to sexual orientation or gender identity under Mainland China employment law. Moreover, in 2009, the Central Government declared it illegal for minors to change their officially-listed gender and required that sex reassignment surgery (allowed only for individuals above 20 years of age) was necessary in order to apply for a revision of a person’s identity card and residence registration. In 2014, Shanxi Province started allowing minors to apply for changes to their listed gender with the additional information of their guardian’s identification card. This shift in policy has allowed for post sex-reassignment surgery marriages to be recognized as heterosexual and, therefore, legal under Chinese law.
A few years ago the China Television Drama Production Industry Association (中國電視劇製作產業協會) posted new guidelines which included a ban on showing LGBT relationships on TV. The regulations stated: “No television drama shall show abnormal sexual relationships and behaviours, such as incest, same-sex relationships, sexual perversion, sexual assault, sexual abuse, sexual violence, etc.” These new regulations have also affected web dramas, which previously had less restrictions on their contents.
Last year Sina Weibo (新浪微博), a widespread social media platform in China, suddenly decided to ban any mentioning of LGBT issues. This move drew somewhat surprising criticism from the public and even from the People’s Daily (人民日報) – the Communist Party’s official newspaper. The criticism resulted in the hashtag #IamGay trending online. Indeed, the backlash was so fierce that Sina Weibo removed the ban shortly thereafter. The editorial from the People’s Daily was surely viewed by many as a sign of the government’s shifting attitude towards LGBT rights.
However, change in the government’s official policy has not been without its setbacks. For example, a planned campaign to mark the International Day Against Homophobia on school campuses was prohibited by government officials. Moreover, days before the International Day Against Homophobia in Beijing, two women wearing rainbow symbols were attacked and beaten by security guards (who were formally dismissed a few days later).
Last year, e-commerce giant Taobao (淘寶) banned the sale of rainbow flags and clothes that contain popular gay phrases and icons, while some sensitive scenes in Bohemian Rhapsody – a film based on the true story of Queen’s leading singer Freddie Mercury – were censored.
Most recently, two LGBT groups in Guangzhou were shut down earlier this year for being “illegal organisations”, according to a government notice. Many LGBT charities have also expressed their difficulties in legally registering with the government, while those already registered can seldom publicly endorse LGBT rights, according to several NGOs. Some LGBT advocacy groups have had to brand themselves as social groups for the protection of public health in order to continue.
Court cases related to conversion therapy
In December 2014, a Beijing court ruled in favour of a gay man in a case against a conversion therapy clinic. The court ruled that such conversion treatments were illegal as the treatments went against the promises for results advertised by the clinic. The court awarded compensation to be paid to the plaintiff and ordered the clinic to take down all advertisements on conversion therapy treatments.
In June 2016, another gay man from Henan Province sued a hospital for forcing him to undergo conversion therapy. The man received a public apology and some compensation, but the court did not find the practice itself to be illegal.
As a result of these court decisions, LGBT activists are now urging the Chinese Health Ministry (中華人民共和國衛生部) to officially forbid conversion therapy treatments. However, no effective measures have been put forward by the Chinese government to prohibit conversion therapy, and these treatments continue to exist across the country.
Are hopes for a new LGBT anti-discrimination law realistic?
During the past twelve months, Mainland China has accepted some “landmark” recommendations related to LGBT rights from other countries at the United Nations Human Rights Council. Such recommendations urged China to enact anti-discrimination legislation covering sexual orientation and approve anti-violence and social security measures. Somewhat surprisingly, the Chinese delegation responded positively to these recommendations and, in March 2019, it was announced that China would aim to adopt an LGBT anti-discrimination law in the near future. While some rights activists have declared the recommendations a milestone achievement, the news was soon censored on all Chinese official news and social media platforms, and there have been no recent updates on any further steps being brought forward.
The Chinese government’s “Three No’s policy” – while providing some flexibility on how the authorities deal with issues relating to the LGBT community – excludes open discussions about the topic within the public arena while also protecting central authorities from accusations that they have an oppressive attitude towards the LGBT community.
While there are a few signs of improvement on the horizon, the PRC government continues to view communities capable of mobilising large crowds and support in a short period of time as huge potential threats to social stability and to one-party rule. As such, we do not expect LGBT rights issues to gain much traction in China over the next few years.
Until end of this year, our team at Hugill & Ip will cover specific issues related to LGBT rights, estate planning, discrimination and confidentiality. We wish to make the community in Hong Kong and China better aware of matters and legal protections afforded to individuals affected by HIV and AIDS as part of the Wills of Concern charity campaign.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.