By Xu Chen and Wilfred Wang

Homosexuality has been a controversial topic across the legal and moral domains in China. In 1997, homosexual sex was officially decriminalized, but Chinese laws have yet to properly recognize or protect same-sex couples in the forms of marriage or de facto relationships.

However, a recent development has given hope to some that changes may be on the way.

On July 19, an article titled “Appointed Guardianship: Bridging Love Within the LGBT Community” went viral on Chinese social media. It was first published on the WeChat subscription account of Nanjing Notary Public Office, and it detailed how the legal guardianship system could “sufficiently protect LGBT rights.”

Appointed guardianship (意定監護) is a mechanism that gives the freedom for same-sex couples to appoint each other as their legal guardians.

Then, on August 5, Beijing Guoxin Notary Public Office announced the first notarization of mutual guardianship agreement requested by “special people” in Beijing on their WeChat.

The development means same-sex couples were, for the first time, legally recognized for their relationship in China outside of a traditional marriage framework.

Both of these two WeChat articles were later deleted by the respective authors (there were no reasons given, but the government’s online policy may have played a role). Still, Chinese social media managed to preserve the original content of the articles, as well as discussions around LGBT rights, including supportive voices and homophobic discourses.


Photo Credit: Reuters / TPG Images

Participants take part in the Pink Party, an event of the annual week-long LGBT festival Shanghai Pride, in Shanghai, China June 15, 2019.

This sheds light on the Chinese government’s possible changing attitude and strategy in dealing with the Chinese LGBT community.

However, the government can exploit the ambiguous line between morality and law in Chinese traditions. Instead of punishing any LGBT related content or acts, the government tends to silence relevant discussions in the public arena.

What Is Appointed Guardianship?

Initially, appointed guardianship was designed for elderly people to assign their legal guardianship for medical emergencies, and manage and assign the beneficiary for their commonly owned assets.

This right has been accessible to all Chinese adult citizens who are able to carry out duties in civil affairs (decisions on one’s assets, wealth, and inheritance) according to the law since October 1, 2017.

Fo Ge (pseudonym) and her girlfriend were reportedly the first same-sex couple to successfully obtain such a legal right and recognition in China.

They had been together for 10 years when they decided to conceive a baby with the help of in vitro fertilization in 2017. But they realized they could not act as each other’s legal guardian in the case of a medical emergency.

The couple then consulted their local notary public office, who later formalized their legal obligation to each other through the “appointed guardianship” mechanism. Many Chinese provincial-level regions also followed this act in approving same-sex guardianship.

But in most notarial documents, the couple’s relationship was stated as “friend” rather than “spouse.”

To understand the implications of this legal system on Chinese LGBT rights, we need to understand the state’s consistent framing of sexual orientation from a social moral perspective rather than a legal perspective.

Being Gay Was Considered ‘Hooliganism’

First and foremost, homosexuality was treated as a form of “hooliganism” (流氓) — a reference to any acts disrupting social and public order.

Yet, it was never a law during Mao Zedong’s era. Hooliganism only became law in 1979 under Deng Xiaoping’s reform agenda, which pushed the need for spiritual reform to support socioeconomic transformations.

The legal implication of hooliganism was two-fold. It was considered a threat to society and should be “treated” with "re-education." And importantly, the legal provision opened the door for the state to denounce homosexuality as an antisocial behavior that required attention.

So even though “hooliganism” has been removed from Chinese law since 1997, the moral conviction of homosexuality remains.

Nonetheless, the decriminalization of gay sex has given the oxygen LGBT+ communities needed to survive. Despite the lack of official recognition and the slow change of social attitudes, the gay scene is active and even vibrant in urban China.

LGBT+ activists have been openly challenging bureaucracy, legal uncertainty, and entrenched social norms to assert their place in society in recent years.

The Chinese government backed the United Nations' recommendations of LGBT+ rights in March 2019, which further illustrated the gradual shift in the country’s legal system.

While the government has yet to fully empower China’s gay community, homosexuality is no longer “hidden” or “shut down.”

China's 'Three Nos' Policy

The Chinese government now has a policy of “Three Nos”: homosexuality receives “no approval, no disapproval, and no promotion.”

Indeed, there was no news coverage in China about the government’s backing of the UN Human Rights Council’s LGBT+ recommendations.

This ambiguous policy provided great flexibility to the state’s regulating apparatus to deal with issues relating to the LGBT communities. At the same time, it left some flexibility for the formation of Chinese LGBT communities.


Photo Credit: Reuters / TPG Images

Gino and Ling Jueding leave after their wedding ceremony at a park in Beijing, June 27, 2015. The gay couple, both internet entrepreneurs in businesses related to China's LGBT community, held their wedding ceremony in Beijing after changing the venue for nearly 10 times due to intervention from local police. Over 200 people attended the ceremony, with the couple planning to register their marriage in Los Angeles in the U.S.

And we can read the notification of guardianship agreement within same-sex couples as a survival tactic for members of LGBT communities. What’s more, the agreement is a strategic policy implementation under the “Three Nos” principles.

In fact, the Commission of Legislative Affairs of the National People’s Congress (NPC) Standing Committee made it clear on August 21 that same-sex marriage is not on the horizon in China. Their spokesperson, Zang Tiewei, claimed that heterosexual monogamy aligns with Chinese contemporary and traditional cultural norms.

His statement highlights how the state consciously frames homosexuality against China’s moral tradition. They position it as the key rationale for eliminating any potential legal loopholes that will make governments offer official blessings to same-sex couples.

Allowing same-sex couples to have a guardianship arrangement is consistent with the state’s continuous strategy of neutralizing LGBT-related topics. It allows the state great flexibility to exclude any open discussions about the topic in a public arena. Yet, it also protects the state from being accused of using oppressive mechanisms to suppress or punish the marginalized voices in society.

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This article was originally published on The Conversation. Read the original article here.

TNL Editor: Lea Yang (@thenewslensintl)

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