Homosexuality was first legalized in Mainland China in 1997. A few years later it was also declassified as a mental illness. However, same-sex couples are still unable to marry or adopt children, and they are not eligible for the same legal protections available to heterosexual couples. As is still the case with most Asian countries, the laws of the People’s Republic of China define marriage as the union between a man and a woman.
Despite the various proposals – including several efforts made by a well-known sexology scholar – to amend China’s marriage laws that were brought forward at both the national and provincial levels, no bill has ever made it to the formal legislative agenda.
When marriage equality was achieved in Taiwan, the People’s Daily (人民日報) posted a statement congratulating the achievement being the first in Asia, which was surprising as it came from the Chinese Communist Party’s mouthpiece. On the other side of the Straits, Taiwan reiterated that the bill was passed by its national parliament and had nothing to do with “authoritarian” China. In fact, the crucial point seemed to be more about the “One China Policy” rather than the advancement of rights for same-sex couples in the Mainland. As a matter of fact, the central government immediately reiterated that it would not follow Taiwan’s example in moving forward with legislation to allow same-sex couples to marry or even establish civil unions.
Limited rights for expat same-sex couples
Starting in 2013, the Beijing Municipal Government has provided “dependent residency status” (受養人居留身份) to same-sex partners of legal residents, such as expats.
Hence, unmarried and same-sex partners can apply for dependent residency status. Necessary documents include a cohabitation certificate (if the partners are not married) or a marriage certificate (if the same-sex spouses are married overseas). Both certificates need to be issued by authorities in the applicants’ home country.
“Guardianship appointment” (意定監護) is an instrument that allows a person to appoint his/her own guardian through a legal agreement.
Originally, the guardianship appointment was intended for elderly people to appoint their legal guardian in case of emergencies and to manage and assign a beneficiary for their assets. The power to appoint legal guardians has been available to all adult citizens who are able to carry out duties in civil affairs (i.e., decisions on one’s assets, wealth and inheritance) according to the law since October 2017.
In July 2019, an article titled “Guardianship appointment: bridging love within the LGBT community” (意定監護公證：構建LGBT群體愛的軸向) went viral on social media platforms in China. It was initially published on the WeChat account of the Nanjing Notary Public Office (南京市公證處), and it explained how a guardianship appointment could somewhat protect the rights of same-sex couples. For the first time, LGBT rights were legally protected in China, a refreshing novelty for a country that usually pushes to keep most aspects of its citizens’ lives within a traditional context.
The situation in Hong Kong and other Asian countries
While some progress on LGBT rights has been made at the municipal level or in the local courts, the Commission of Legislative Affairs of the National People’s Congress Standing Committee (全國人民代表大會常務委員會) has reiterated as recently as August 2019 that same-sex marriage is not on the horizon in Mainland China.
Considering the legal developments experienced in Hong Kong in the past two years, no improvement has been made in the territory for guaranteeing rights to same-sex couples through the implementation of specific legislation. On the contrary, it was only through the actions of some brave individuals who challenged the government in court that some progress has been made recently on issues regarding immigration policies, the recognition of spousal benefits for public sector employees and joint tax filing benefits for some same-sex couples.
Last year the Constitutional Democratic Party of Japan (CDP) announced it would introduce a bill to amend the Civil Code in order to allow same-sex marriages. In June the bill was submitted by the CDP, the Japanese Communist Party and other parties with the intent to adopt neutral language with the terms “party of marriage” used instead of “husband” and “wife“, while “father and mother” would be replaced by “parents“. As it stands today, there is still no national recognition of marriage equality, civil unions or adoption rights for same-sex couples.
In 2015 Vietnam amended its Law on Marriage and Family to allow same-sex weddings. However, the amendment did not offer any legal recognition or extend any of the protections guaranteed to heterosexual married couples. Many consider this change to be the first step to achieving marriage equality in the near future.
Other countries in the region (ex., The Philippines and Thailand) have seen the introduction of proposals to introduce legislation allowing civil unions for same-sex couples. However, despite these discussions for potential amendments, no such legislation has been approved.
Despite the lack of progress seen in many countries in the region, the issue of same-sex marriage is gaining momentum in Asia-Pacific together with a greater acceptance of those who identify as LGBT. Among those who consider that the general climate for LGBT rights in their country has improved over the past three years, many attributed the shifting attitude to changes in policies and laws related to LGBT people (38%), followed by coverage of LGBT issues in mainstream media (36%). While these changes in individual attitudes are definitely encouraging, substantial obstacles still persist. Whether in the form of official government policies, the difficulty of implementing new specific legislation or anti-LGBT advocacy efforts by religious groups, there is still much to do in order to ensure that everyone is guaranteed the same rights and the same civil freedom, regardless of their sexual orientation or gender identity.
What can be currently done in Hong Kong to protect same-sex couples?
As already discussed in our previous article “Protecting Rights and Assets in a Same Sex Marriage”, using thorough estate planning same-sex couples can be granted almost the same benefits as heterosexual couples in Hong Kong, and also their children can be protected. The widespread concept is that making a Will is about inheritance, while in reality there is much more to it – in particular for same-sex couples living in the territory.
If you have not made a formal Will, under Hong Kong law your assets are distributed in accordance with the Intestate Estate Ordinance (Cap. 73), which in many cases might be in contrast with your wishes or guarantee any protection of your loved ones. It is crucial to understand that under current law if one partner dies without having made a formal Will, her/his same-sex partner is not automatically entitled to their estate, unless specific provisions are put in place. Additionally, any child in the relationship could be left unprotected.
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.