LGBT rights in China

The earliest records of homosexuality and same-sex relations in China date from the Shang dynasty era (c. 16th to 11th century BCE). The term luan feng was used to describe homosexuality. No records of lesbian relations exist, however. In this time, homosexuality was largely viewed with indifference and usually treated with openness.[10]

Several stories of homosexual love during the Zhou dynasty (c. 1046–256 BCE) are well known, even to this day. One such story refers to Duke Xian of Jin (reigned 676–651 BCE) planting a handsome young man in a rival's court in order to influence the other ruler with the young man's sexual charm and to give him bad advice.[11] A more exalted example would be the relationship of Mi Zixia (彌子瑕) and Duke Ling of Wei (衛靈公). Mizi Xia's sharing of an especially delicious peach with his lover was referenced by later writers as yútáo (餘桃), or "the leftover peach". Another example of homosexuality at the highest level of society from the Warring States period is the story of King Anxi of Wei and his lover Lord Long Yang.[12]

Homosexuality was widely referenced during this period through popular literature. Poet Qu Yuan is said to have expressed his love for the ruling monarch, King Huai of Chu, through several of this works, most notably "Li Sao" and "Longing for Beauty".[10]

Two young Chinese men drinking tea, reading poems, and having sex. The receptive partner would typically be lighter in skin colour to reflect his "feminity".

Homosexuality and homoeroticism were common and accepted during the Han dynasty (202 BCE - 220 CE). Emperor Ai of Han is one of the most famous Chinese emperors to have engaged in same-sex sexual activity. Historians characterize the relationship between Emperor Ai and his male lover Dong Xian as "the passion of the cut sleeve" (斷袖之癖, duànxiù zhī pì) after a story that one afternoon after falling asleep for a nap on the same bed, Emperor Ai cut off Dong Xian's sleeve (in a piece of clothing they were sharing) rather than disturb him when he had to get out of bed. Dong was noted for his relative simplicity contrasted with the highly ornamented court, and was given progressively higher and higher posts as part of the relationship, eventually becoming the supreme commander of the armed forces by the time of Emperor Ai's death.[13]

It was also during this period that one of the first mentions of female homosexuality surfaced. A historian in the Eastern Han dynasty, Ying Shao, made observations regarding several Imperial Palace women forming homosexual attachments with one another, in a relationship titled duishi (對食, a term interpreted to refer to reciprocal cunnilingus), in which the two acted as a married couple.[10]

Writings from the Liu Song dynasty era (420–479 CE) claim that homosexuality was as common as heterosexuality. It is said that men engaged so often in homosexual activity, that unmarried women became jealous.[3]

During the Tang dynasty (618–907 CE) era, there were traditions of pederastic same-sex relationships, typically in Buddhist temples, among a young boy and an adult man. Lesbian relationships also commonly occurred in Buddhist nunneries, as many Buddhist nuns sought relationships with one another. Taoist nuns meanwhile were recorded as having exchanged many upon many love poems to one another.[10]

The earliest law against homosexual prostitution in China dates from the Zheng He era (政和, 1111-1118) of Emperor Zhao Ji (趙佶) in the Song dynasty (960–1279), punishing nánchāng (男娼), young males who act as prostitutes, with a punishment of 100 blows with heavy bamboo and a fine of 50,000 cash. Another text from the Song dynasty prohibits the offense of bu nan (Chinese: 不男; lit. '[being] not man', crossdressing).[14] They were never enforced.[10]

The Zhengde Emperor of the Ming dynasty (1368-1644) is believed to have had a homosexual relationship with a Muslim leader from Hami, named Sayyid Husain. In addition to having relationships with men, the Zhengde Emperor also had many relationships with women. He sought the daughters of many of his officials. The Tianqi Emperor is believed to have had two private palaces; one for his female lovers and one for his male lovers.[10] During this era, lesbian sexual practices became meeting the rapidly rising trend of "sapphism", which were created all in the name of pleasure. This included, but was not limited to the act of frottage, cunnilingus and mutual masturbation.[10]

Chinese homosexuals did not experience persecution which would compare to that experienced by homosexuals in Christian Europe during the Middle Ages, and in some areas, particularly among the merchant classes, same-sex love was particularly appreciated. There was a stereotype in the late Ming dynasty that the province of Fujian was the only place where homosexuality was prominent,[15] but Xie Zhaozhe (1567–1624) wrote that "from Jiangnan and Zhejiang to Beijing and Shanxi, there is none that does not know of this fondness."[15] European Jesuit missionaries such as Matteo Ricci took note of what they deemed "unnatural perversions", distressed over its often open and public nature.[16] Historian Timothy Brook writes that abhorrence of sexual norms went both ways, since "the celibate Jesuits were rich food for sexual speculation among the Chinese."[15] Chinese writers typically made fun of these men, insisting that the only reason they condemned homosexuality was because they were forced to refrain from sexual pleasure as they were celibate.[10][17]

The first statute specifically prohibiting same-sex sexual intercourse was enacted in the Jiajing era (嘉靖, 1522-1567) of Emperor Zhu Houcong (朱厚熜) in 1546.[14] Despite this, homosexuality was still commonly accepted and practiced, providing that the men produced heirs and married women later on. Homosexuality was even viewed as "luxurious" by middle classes. Same-sex marriage ceremonies were commonplace.[10]

A woman spying on two male lovers.

By 1655, Qing courts began to refer to the term ji jian (雞姦 sodomy) to apply to homosexual anal intercourse. Society began to emphasise strict obedience to the social order, which referred to a relationship between husband and wife. In 1740, an anti-homosexual decree was promulgated, defining voluntarily homosexual intercourse between adults as illegal. Though there were no records on the effectiveness of this decree, it was the first time homosexuality had been subject to legal proscription in China. The punishment, which included a month in prison and 100 heavy blows with heavy bamboo, was actually the lightest punishment which existed in the Qing legal system.[10]

In 1912, the Xinhai Revolution toppled the Qing dynasty and its explicit prohibition of ji jian was abolished by the succeeding states.[1]

Heteronormativity and intolerance of gays and lesbians became more mainstream through the Westernization efforts of the early Republic of China.[5]

Homosexuality was largely invisible during the Mao era.[6] During the Communist Cultural Revolution (1966 to 1976), homosexuals were regarded as "disgraceful" and "undesirable", and heavily persecuted.[18][19]

All mentions to homosexuality in criminal law were removed in 1997. In 2001, the Chinese Society of Psychiatry declassified homosexuality as a mental disorder. However, such change is yet to be reflected by the regulations of National Health and Family Planning Commission,[20] a government branch that controls all regulations of health care services in China, which has resulted in psychiatric facilities and psychiatry education textbooks across the country still de facto considering homosexuality as a mental disorder and continuing to offer conversion therapy treatments.[1][21][22] Transgender identity is still classified as a disorder despite laws allowing legal gender changes.[23]

Beijing currently provides dependent residency status to the same-sex partners of legal residents, such as expats.[31]

In June 2009, the Government of Hong Kong extended limited recognition and protection to cohabitating same-sex couples in its Domestic Violence Ordinance (Chinese: 家庭及同居關係暴力條例, pinyin: Jiātíng Jí Tóngjū Guānxi Bàolì Tiáolì).[lower-alpha 1][32]

In April and September 2017, Hong Kong courts ruled that the same-sex partners of government employees must receive the same benefits as opposite-sex partners and that the same-sex partners of Hong Kong residents have the right to live in the territory as dependents, respectively. These two rulings were both appealed by the Hong Kong Government, however.[33][34] In July 2018, the Court of Final Appeal upheld the September ruling, stating that same-sex partners have the right to receive spousal/dependent visas, and as such can legally reside in Hong Kong.[35] Likewise, on 6 June 2019, the Court of Final Appeal upheld the April ruling,[36] after having initially been overturned by the Court of Appeal.[37]

In June 2018, a Hong Kong lesbian woman known as "MK" filed a lawsuit against the Hong Kong Government for denying her the right to enter into a civil partnership with her female partner, arguing that her rights to privacy and equality had been violated, amounting to a breach of the Hong Kong Basic Law and the Hong Kong Bill of Rights Ordinance. The High Court heard the case in a brief 30-minute preliminary hearing in August 2018.[38][39][40] A full hearing took place on 28 May 2019.[41]

In November 2018, openly gay legislator Raymond Chan Chi-chuen proposed a motion to study civil unions for same-sex couples, but this was voted down by 27 to 24.[42]

In January 2019, two men launched legal challenges against Hong Kong's same-sex marriage ban, arguing that the refusal to recognize and perform same-sex marriages is a violation of the Basic Law. The Hong Kong High Court has given permission for the cases to proceed.[43][44]

The Hong Kong Bill of Rights Ordinance 1991 (Chinese: 香港人權法案條例; pinyin: Xiānggǎng Rénquán Fǎ'àn Tiáolì)[lower-alpha 2] prohibits discrimination on a variety of grounds, including "other status". In the case of Leung TC William Roy v. Secretary for Justice (2005), this has been interpreted to include sexual orientation. However, the Bill of Rights only applies to government sponsored discrimination and not the private sector.[51]

The Basic Law of Macau's Article 25 indicates the people of Macau are free from discrimination based on a non-exhaustive list of prohibited factors. Sexual orientation is not included in said list of prohibited discrimination grounds. However, there are anti-discrimination protections based on sexual orientation in the fields of labour relations (article 6/2 of the Law No. 7/2008),[lower-alpha 3] protection of personal data (article 7/1,2 of Law No. 8/2005),[lower-alpha 4] and ombudsman (article 31-A of Law No. 4/2012).[lower-alpha 5]

In 2014, Shanxi Province started allowing minors to apply for the change with the additional information of their guardian's identification card. This shift in policy allows post-surgery marriages to be recognized as heterosexual and therefore legal.[55]

Hong Kong law allows change in legal documents such as the identity cards and passports after a person has undergone sex reassignment surgery, but does not allow birth certificates to be changed.[56]

Tu'er Shen (兔兒神), also known as the Rabbit God (兔神), is the Chinese Taoist matchmaker god for homosexual relations, and is the God of homosexual love. There used to be a temple dedicated to him in Southern China called the "Double Flowers Temple". The temple was destroyed by the Japanese military during World War II and no longer exists.[78] However, in the past decades, there have been revival attempts to worship him, particularly in Taiwan. In 2006, Lu Wei-ming founded a temple for Tu'er Shen in Yonghe District in New Taipei City.[79] About 9,000 gay pilgrims visit the temple each year for praying, particularly for a partner. The temple also performs marriage ceremonies for same-sex couples. It is the world's only religious shrine for homosexuals.[80]

In 2017, the United States Department of State reported the following, concerning the status of LGBT rights in China:

• Internet Freedom
  • "References to homosexuality and the scientifically accurate words for genitalia were also banned. Writers who cover lesbian, gay, bisexual, transgender, and intersex; gender; and youth health issues expressed concern over how to proceed without being shut down."[88]
• Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
  • "No laws criminalize private consensual same-sex activities between adults. Due to societal discrimination and pressure to conform to family expectations, however, most lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons refrained from publicly discussing their sexual orientation or gender identity. Individuals and organizations working on LGBTI issues continued to report discrimination and harassment from authorities similar to that experienced by other organizations that accept funding from overseas.
  • Despite reports of domestic violence among LGBTI couples, the regulations on domestic violence and the Family Violence Law do not include same-sex partnerships, giving LGBTI victims of domestic violence less legal recourse than heterosexual victims.
  • A court in Henan Province in July ruled that a mental hospital in Zhumadian City owed a gay man named Wu 5000 yuan ($735) in compensation over being forced against his will in 2015 into “conversion therapy.” Hospital employees forced Wu to take medicine and injections for 19 days after diagnosing him with a “sexual preference disorder.”
  • NGOs working on LGBTI issues reported that although public advocacy work became more difficult for them in light of the Foreign NGO Management Law and the Domestic Charity Law, they made some progress in advocating for LGBTI rights through specific antidiscrimination cases. In July a court ruled in favor of a transgender man in his suit against his former employer for wrongful termination.
  • Xi’an police detained nine members of the gay advocacy group Speak Out hours before the conference it was hosting was slated to start."[88]