Equality and Same-Sex Relationships: 加中比较研究 a Comparison Between Canada and China

同性关系与平等： Equality and Same-Sex Relationships: 加中比较研究 A Comparison between Canada and China

Donald Cochrane and Wang Jinjie (in press). Li Zong and Ning Liu (Eds.). Internationalization and Social Transition: Education, Cultural Exchange, and Social Governance in China. Beijing: China Social Sciences Press.

Donald Cochrane 唐纳德柯柯恩 Wang Jinjie王进杰 Professor Emeritus 荣誉退休教授 Research Fellow 研究员 College of Education 教育学院 National School of Development University of Saskatchewan 萨斯喀彻温大学国家发展研究院 Peking University 北京大学

“…that’s what this chapter is for—to explain things a bit.” “Oh, I see,” said Pooh. “And the easiest way to do that would be for us to go to China for a moment.” “What?” said Pooh, his eyes wide open in amazement, “Right now?” “Of course. All we need to do is lean back, relax, and there we are.” “Oh, I see,” said Pooh. The Tao of Pooh Benjamin Hoff (1982)

A. Preface

Anthropologists on the pervasiveness of same-sex inclinations

Anthropologists have demonstrated that sexual minorities have existed in cultures for millennia. However, responses in these cultures to sexual differences have varied from outright hostility1 to widespread acceptance. We start by sketching the histories of same-sex relationships in China and Canada and then assess the progress each has made toward full equality between its LGBT2 and heterosexual citizens.

The two countries contrasted

Because these two countries have very different histories, cultures, laws, and institutional arrangements, we expected them to have followed distinctive paths towards greater social

1 We are reminded of Milton Diamond’s pithy aphorism: “Nature loves variety; unfortunately, society hates it.” 2 LGBT: an abbreviation for “lesbian, gay, bisexual, and transgender”. justice. From the mid-19th century, the impetus for change came from very different sources. Not surprisingly, the nature and pace of change in the two societies contrast sharply. However, we share Martin Luther King Jr.’s faith that “the arc of the moral universe is long, but it bends toward justice.”

Assumptions about politicians

We make several assumptions about politicians whether they are working in a multi-party or a single-party system. On the political level, they are reluctant to take risks that might lessen their grip on power unless the prospects of success far outweigh inaction. This generalization is especially true when they consider changes in areas where citizens have deeply-held ideas about religion, ethnicity, race, class, gender, and in our case, sexual orientation. On a personal level, politicians enjoy the prestige, perks, and social prominence that come with their office. They are reluctant, then, to jeopardize their positions for a morally justifiable, though possibly an unpopular, cause. The political and the personal often converge to explain their actions.

Enforcing restrictions on a population is often easier than expanding liberty. Politicians are usually reluctant to step very far ahead of widespread social attitudes when considering new policy and this is particularly true when thinking about sexual/moral/religious issues. Our lawmakers are rarely “out in front” on social issues until they sense a ground-swell of support for change. Until that time, reform is stalled and old sins continue to fester.

General remarks about laws

Governments can promulgate laws that restrict or expand citizens’ liberty to engage with one another. Laws spell out behaviour that is permitted and prohibited. They can deny, limit, or extend privileges and benefits. Further, they can establish categories of persons offering a privilege or a benefit to one group while denying it to another. Finally, governments can utilize the coercive power of the courts, police, and military to enforce its restrictions. For sexual minorities, this characterization of state policy is all too familiar. In many countries, homosexual relationships have been deemed a criminal offence and/or a mental illness at one time or another, but through changes in the law or mental health criteria, these relationships have become permitted. Finally, while gay and lesbian unions might be permitted at some point— that is, not deemed illegal, those involved might still not be granted a range of privileges and benefits that are extended to heterosexuals.

B. The equality argument The presumption in equality arguments is that all persons should be treated impartially unless it can be shown that there are significant, relevant differences: “The notion basic to justice is that distinctions should be made [only] if there are relevant differences and that should not be made if there are no relevant differences or on the basis of irrelevant differences” (Peters, 1966, p. 123). Thus, equals should be treated equitably in the distribution of, for example, benefits, privileges, and rights. The onus is placed on those who would treat some persons differently to justify—that is, provide convincing principled reasons—why the latter group has been placed in a category that deprives them of these benefits, privileges, and rights. Simply appealing to the dictates of a leader (whether political or religious) would not meet this standard. Nor would it suffice to refer simply to a country’s traditions or current majority sentiment.3 Moral reasoning requires something less arbitrary and more objective.

The equality argument can be applied easily to the issue of marriage. The general principle would be that all people should be allowed to marry. However, governments might impose some limitations on who would be eligible to marry by appealing to justifiable, relevant principles that would open categories of exceptions. Minimum ages might be imposed on prospective couples. Polygamy might be ruled out. Marrying a near relative might be forbidden. An odious law might prohibit marriages based on race or ethnicity, as was the case in part of the United States until 1967.4 With respect to gay and lesbian persons, the marriage controversy in Canada has ended, but it has only just begun in China.

C.1. China: History

From ancient times through many dynasties, the privileged in Chinese society tolerated and, at times, even encouraged same-sex eroticism. Many ancient texts recorded encounters involving members of the male ruling classes. Crompton has noted that the sexual attitudes in many stories in these texts “tacitly assume bisexuality as the human norm” (Crompton, 2003, p. 217).5 All of this changed dramatically in 1911 with the fall of the Qing Dynasty. China experienced its first “opening to the West” and welcomed Western science, Christianity, sex education, and psychology with its conflicting views about what was normal versus deviant

3 These considerations might be politically but not morally relevant. 4 In 1958, twenty-four states in the United States continued to prohibit interracial marriage. The law in Virginia, the last to maintain the prohibition, was struck down in Loving v. Virginia (1967) when the Supreme Court ruled that the ban on inter-racial marriage was unconstitutional. 5 See also Han Bingbin et al. (2013) who claim that, while translating Havelock Ellis’ mammoth Psychology of Sex, Pan Guangdan came to the conclusion that same-sex relationships must have existed throughout China’s history. Acting on this hypothesis, he undertook the first systematic historical study of this phenomenon and found credible clues in Chinese ancient literature of the existence of homosexuality throughout the country’s history. There is no reason to conclude that same-sex relationships were confined to the literate ruling classes. sexuality including same-sex relations.6 When the People’s Republic of China (PRC) was established in 1949, same-sex relations were never explicitly criminalized. However, the charge of “hooliganism” was applied to many forms of “undesirable behaviour” and this included homosexuality.

Changes in the “hooligan law” and the CPA diagnostic manual

In the last twenty years, major changes have taken place at official levels. In 1997, the Chinese government abolished the hooligan law, a move considered by most to be a decriminalization of homosexuality.7 And in overhauling its diagnostic manual in 2001, the Chinese Psychiatric Association removed its designation of homosexuality as a mental illness.8 However, at the turn of the century, Sigley and Jeffreys concluded that

. . . homosexuality continues to be a more or less ''taboo'' subject in China. The majority of Chinese people who avoid the subject of homosexuality do so on grounds that it causes them to feel discomfort or even disgust (e xin). But this does not mean that homosexuality is viewed as "unnatural" in China. Historically speaking, the subject of homosexuality in China has always been approached in a rather tolerant and relaxed manner. Nowadays, homosexuality is definitely a focus of social prejudice, but neither the Chinese authorities nor the Chinese public have made any attempts to segregate homosexuals or to eliminate homosexuality. . . . [However] homosexuals in China are subject to. . . . the pressure to form a heterosexually-based family unit and also to have children, but homosexuals in China do not have enemies as such, nor do they have to deal with the problem of "sin" in the context of the Christian church, as do their counterparts in the West.9

C.2. Canada: Crimes, mental illnesses, and sins

At different times in Canada’s past, same-sex acts have been regarded as crimes, the result of a mental illness, or simply as sinful. If homosexuality were a crime, it was thought that it should be punished; if a mental illness, it could be cured; and if a sin, the person should be condemned but might be purged and forgiven.

Homosexuality as a crime

6 See Ting Guo (2016). 7 This was six years before the United States overturned its sodomy laws. 8 However, there are reports that conversion therapies continue to be used by some psychiatrists. See C. M. Wong (2017) and the China Daily (2014). On school textbooks being out of date, see N. Thomas (2016). 9 G. Sigley and E. Jeffreys (1999), p. 54.

Once a British colony, Canada was initially saddled with British law that regarded sodomy as a crime. Though Canada repatriated its “buggery law” in 1859 as a part of the Consolidated Statutes of Canada, sodomy remained an offence until 1869 and was punishable by death. A broader law targeting all homosexual male sexual activity (known as "gross indecency") was passed in 1892. In changes to the criminal code in 1948 and 1961, Canada combined criminal and psychological categories under which gay men could be considered “criminal sexual psychopaths" and "dangerous sexual offenders”. The classic and tragic case involved Everett Klippert who, in 1965, acknowledged to police that he was gay, had had sex with men for over 24-years, and was unlikely to change. In 1967, he was sent to prison for life as a "dangerous sex offender". Canada’s sodomy laws were repealed two years later in 1969.10 11

Homosexuality as a mental illness

In 1952, when the American Psychiatric Association (APA) published the first edition of the Diagnostic and Statistical Manual (DSM-I), it listed all the conditions psychiatrists then considered to be mental disorders. The DSM-I classified “homosexuality” as a “sociopathic personality disturbance”. In DSM-II, published in 1968, homosexuality was reclassified as a “sexual deviation.” This characterization was removed in 1980,12 but only after vigorous political action largely organized by gay activists in the wake of the Stonewall Riots.13 The American Psychiatric Association declassified homosexuality as a mental disorder in 1974. The Canadian Psychiatric Association followed suit eight years later in 1982.

Homosexuality as a sin in Canadian Christian churches

Until early in the 20th Century, the Roman Catholic Church and all Protestant denominations in Canada were theologically conservative. They believed that all passages in the Bible were the revealed Word of God and so the few negative references to same-sex eroticism14 were

10 Sodomy laws in the United States were not overturned until the 2003 U.S. Supreme Court decision in Lawrence v. Texas, but only after 36 states had already repealed their own sodomy laws. 11 It has never been explained why Klippert was not released until 1972. 12 See Drescher (2015), pp. 565–575. 13 The American Psychological Association (APA) endorsed the psychiatrists' decision in 1975. The World Health Organization followed fifteen years later in 1990. 14 See, for example, Leviticus 18:22, “You shall not lie with a male as with a woman; it is an abomination” and Leviticus 20:13, “If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them.” accepted literally, unconditionally, and without need of theological interpretation.15 Generally, those churches in Canada who maintain literal interpretations of Scripture retain the view that same-sex relations are sinful (the Roman Catholic Church, Evangelical churches, and some Protestant denominations); those influenced by liberal theology have become more open, welcoming, and inclusive (notably the United Church, Quakers, and Unitarians).16

We have no adequate theory of homophobia

How can we account for the widespread anti-LGBT attitudes (“homophobia”) in China and Canada? In fact, we do not have a general culture-specific or cross-cultural theory that would account fully for homophobia—either for its prevalence or its intensity.17 Parts of the answer likely revolve around strong conceptions of masculinity (gender identity), strict role boundaries between men and women (where men show no traces of femininity18), and the presumption of male dominance and privilege.19 Psychoanalytic theories might also contribute to our understanding.20 Finally, the general level of violence in North American society—most of it perpetrated by men—is likely a significant factor in the way that homophobia manifests itself.21

Given that there is an element of fear (phobia) in many instances of “homophobia”, it is fair to ask what straight males might fear from gays. In virtually all cases, the answer is nothing. Perhaps it is homophobes who might be deemed mentally ill, and so, benefit from psychological attention.

D. Dimensions of the issue in China

15 By contrast, Pan Suiming has observed that “homosexuals in China do not . . . have to deal with the problem of “sin” in the context of the Christian Church, as their counterparts in the West.” Quoted in Sigley and Jefferys (1999), p. 54. 16 Among non-Christian religions in Canada, Muslims and Orthodox Jews condemn same-sex experience. Hindus are much more liberal; Sikhs remain somewhat divided. 17 More than 70 countries around the world continue to criminalize homosexuality (see ILGA 2016 survey). In ten countries, homosexuality may still be punished by death (see Bearak, M. and D. Cameron, 2016). For an illuminating account of the origins and complexities of male homophobia, see Haywood et al. (2018). 18 The converse is also true. Women who display “masculine” characteristics are often referred to disparagingly as “butch”. 19 As one interviewee put it informally, “Call me old-fashioned, but the guy should be the penetrator, not the penetratee, no?”. Em & Lo, 2007. 20 See D. Moss (Ed.) (2003) for some initial explorations. 21 Anti-LGBT attitudes in Canada often result in acts of violence (Janoff, 2005). See also Tomsen (2009) for a chilling parallel analysis of violence against gays in Australia. If marriage laws were changed to accommodate gays and lesbians in China, how many would be beneficiaries? Not surprisingly, reliable official statistics are hard to find under the best of circumstances, and no attempts to gather them in China have ever been undertaken. One tally sets the number at “around 70 million—that’s one in every twenty people” (Gong Zhe, 2017).22 Other estimates are more moderate. For example, Zhang Beichuan (2006), an expert on homosexuality at Qingdao University, believes there are 20 million gays and lesbians in China. One statement based on Chinese government documents and academic studies suggests a figure of 15 million. An official estimate, as quoted in a China Daily report in 2005,23 puts the number at "approximately 30 million". Whatever the exact numbers, a change in marriage laws that would likely promote equality for, say, 30 million people would be huge in the eyes of Canadians for Canada’s total population is just over 32 million. A “significant number” is all a matter of perspective!

Are attitudes toward LGBT persons changing in China?

Not surprisingly, recent studies agree with the conclusions we found in our research24 that older Chinese citizens hold conservative attitudes towards gays and lesbians, while younger people are much more liberal.25

In our research on a university campus in southern China (Cochrane and Wang, 2013), we were interested to learn about student attitudes towards social policy issues with respect to gays and lesbians. We asked our 200 participants whether they thought the attitude of most Chinese toward gays and lesbians was positive or negative, their response was that it was overwhelmingly negative (F=93%, no.=70; M=86%, no.=101). Then we asked them for their views on seven policy issues: did they agreed that gay and lesbian individuals should be (1) allowed to marry their same-sex partners, (2) allowed to adopt children, (3) eligible for child custody in event of divorce, (4) free from discrimination in housing, and (5) free from job discrimination, (6) free from police harassment because of their sexual orientation, and (7) that their gay and lesbian partners from foreign countries should be allowed to immigrate to China to join them (provided the former meet all the other usual conditions for immigration)? Their

22 This percentage corresponds closely with a survey undertaken in Canada in 2012. See C.B. Carlson (2012): “The Forum Research poll, commissioned by the National Post and taken twice in June to confirm its accuracy, found that 5% of Canadians identify as lesbian, gay, bisexual or transgender.” 23 China Daily (2005). 24 Cochrane and Wang (2013). 25 See Pew Research Center (2014), UNDP Survey (2016), and Ying Xie & Minggang Peng (2017), and Pan Suiming (2017). Even media perceptions may be changing: Yixiong Huang (2017) explores how homosexuals were portrayed in the official media of China and argues that representation of homosexuals in the People’s Daily has changed gradually from a negative perception to a more positive one with less discrimination and prejudice as shown by the articles’ quantitative and qualitative results. responses were overwhelmingly positive.26 We stipulated that students would be defined as “liberal” if they answered affirmatively on at least five of our seven issues. The results of this exercise also surprised us:

Females Totals Males Totalsmales Males F 7 out of 7 times 40% (no.=33) 44% (no.=51) At least 6 out of 7 times 24% (no.=20) 64% 18% (no.=21) 62% At least 5 out of 7 times 15% (no.=12) 79% 16% (no.=19) 78%

Almost 80% of all participants were found to have chosen the liberal options at least 5 times out of 7. Li has said that a CASS “survey found that Chinese society, on the whole, is tolerant.”27 Our results would lead us to believe that this young generation is very tolerant.

Recent research conducted on a national scale is somewhat encouraging. In the three nationwide sexuality surveys carried out between 2006 and 2015, Pan Suiming’s team sought to find out how many Chinese people support equal rights for gay people. They found that the percentage of people who were supportive remained steady at around 45 percent over the last ten years, while those who oppose gay rights have greatly decreased in number. They drew this modest conclusion: “As far as the prospect of achieving equal rights for China’s gay community in the near future is concerned, there is no cause for undue optimism—but, crucially, there are no grounds for extreme pessimism, either” (Pan Suiming, 2017).

The Equality Argument Again

When we apply the equality argument, we assume that something valuable is at stake—either there is something positive to be attained or some harm to be avoided.28 In both Canada and China, some of the valuable benefits of marriage that are protected in law include taxation, housing,29 estate planning, employment, pensions, spousal support, parental leave, inheritance, hospital visitation rights and medical decisions about treatment, adoption of children, and the immigration of partners.

E. Seeking a benefit: The marriage issue in China

26 For corroborating evidence, see Kai Lin et al. (2016) and Ying Xie & Minggang Peng (2017). 27 Li (2011). 28 One forceful argument being advanced in China currently is the use of the harm reduction argument: by approving same-sex marriage, the spread of HIV might be slowed. See Stephan Pan’s (July 27, 2015) “Same-sex marriage and the HIV epidemic in China”. 29 This benefit is acutely felt in Shanghai where “many homosexual people cannot own a home because the city has banned unmarried, non-native residents from purchasing property” (Xinhua, 2013). The most divisive and decisive issue in China on the rights, privileges, and benefits for sexual minorities—just as it was in Canada and the United States—is same-sex marriage. The country’s leading and tireless protagonist, Li Yinhe, has proposed a Chinese Same-Sex Marriage Bill as an amendment to the marriage law at the Chinese People’s Political Consultative Conferences in 2003, 2005, 2006, and 2008 to legalize same-sex marriage. None succeeded as she was unable to find a sufficient number of co-sponsors for a motion to be placed on the agenda. She renewed her efforts in 2012 by asking for backing from some of the 3000 members of the National People’s Congress, the country’s parliament. Again, she was unsuccessful in her efforts to have amendments to the marriage law placed on the official agenda. The government’s policy on marriage is subject to what is known as the “Three No’s Policy”: No approval, no disapproval, and no promotion. Still, the winds of change are blowing in China and the pace of change is not likely to abate. Li Yinhe has said that she may not live long enough to see same- sex marriage established in her country, but no one should be taking any bets.

F. The Political Process: The Canadian Experience

The First Wave

In newspaper accounts of court proceedings, we often read that the court agreed to hear a case, convened, listened to testimony, asked questions, retired, and many months later released a judgment. While this description is accurate, it is a partial version of all that is involved. Cases do not just passively “come” before the Supreme Court; they are actively “brought.” They involve earlier trials at lower courts that are appealed to a higher court by the losing party. In Canada, the Supreme Court is the final court of appeal. The costs in terms of organization, dollars, time, expertise, and the research needed for an average citizen to mount a case at a lower court and then launch an appeal all the way to the Supreme Court are enormous. For most, this process is impossible. In cases where you are challenging a law passed by Parliament, you are taking on the government and the government has “deep pockets”.

During the 1990s, groups organized for the long march through the courts to challenge laws that discriminated against LGBT communities. They sought remedy by drawing on the equality clause (Section 15) of the Canadian Charter and by applying it to cases involving sexual orientation.30 In the legal proceedings, the chief justices employed the same kind of reasoning

30 Section 15 of the Charter was brought into force on April 17, 1985. It reads “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” This clause has been applied to pursue gay rights in Canada. used in the application of the equality principle in everyday personal decisions.31 They first determined whether categories had been established; second, whether the categories resulted in a disadvantage to one of the groups in the distribution of benefits, privileges, and rights; and third, whether the distinction that created the categories was a relevant distinction—that is, relevant to justify a differential distribution of goods.32

Winning several of these court cases chipped away at the exclusive privileges enjoyed by heterosexual married and common-law couples but which had been denied to sexual-minority couples. The first of these cases required a revision in 1992 to the Canadian Human Rights Act when it was successfully argued that the Act did not comply with Section 15 of the Canadian Charter of Rights and Freedoms because it failed to provide access to the ameliorative procedures to those who were discriminated against because of their sexual orientation.

Then in relatively swift succession the Supreme Court ruled in favour of removing a range of discriminatory legislation involving same-sex couples: spousal allowance provisions in the Old Age Security Act (1995)33, spousal benefits to the same-sex partners of federal government employees (1996)34, opposite-sex definition of “spouse” in the Canada Pension Plan (1997) and in the federal Income Tax Act (1998)35, and a requirement one year later that treatment of opposite-sex common-law couples also be accorded to same-sex common-law couples.36

The Second Wave

After this wave of court decisions, same-sex couples started to petition the provincial courts for the right to marry. In every case, the superior and appeal courts ruled that the restriction of

31 See Section 2, “The equality argument” in this essay. 32 See, for example, the judgement in Egan v. Canada (1995): “The analysis under s. 15 of the Charter involves three steps: the first looks to whether the law has drawn a distinction between the claimant and others; the second questions whether the distinction results in disadvantage, and examines whether the impugned legislation imposes a burden, obligation, or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants [to] others; the third step assesses whether the distinction is based on an irrelevant personal characteristic . . . ” (p. 514). 33 See Egan v Canada, [1995] 2 S.C.R. 513. 34 See Canada (Attorney General) v. Moore (T.D.), [1998] 4 F.C. 585(T.D.). 35 Rosenberg v. Canada (Attorney General), 38 O.R. (3rd). 36 M v H [1999] 2 S.C.R. 3. An Ontario decision had allowed a Charter challenge to the opposite-sex definition of “spouse” in section 29 of the province’s Family Law Act (FLA) that prevented same-sex partners from applying for spousal support upon relationship breakdown. marriage to opposite sex couples was contrary to the Charter.37 In December, 2004, the Supreme Court ruled that the power to change the definition of marriage rested exclusively with the federal government, not the provinces, and that a proposed bill to legalize same-sex marriage was constitutional. Prime Minister Paul Martin and his Liberal government introduced legislation to legalize same-sex legislation and, when it was passed38, Canada became the fourth country in the world to do so.39

One assumption held by many is that views held by the public remain constant over time. If young people are, on the whole, more progressive and older people tend to be unchangingly conservative, you have to wait for the older set to die before reform can be undertaken. But the research done by Anderson and Fetner questions this assumption. They found a remarkable degree of change over time within age cohorts, especially in Canada. Their findings “suggest that attitudes toward homosexuality during this period [1981-2000] were an exception to the age-stability hypothesis, which claims that opinions on controversial social issues are formed by early adulthood, and change little with age.”40 They speculated that “differing political climate across country and time is responsible for the significant differences in public opinion.”41 This finding could be very relevant to developments in China if it could be replicated there.

G. The Political Process: The Chinese Experience

The process of bringing about marriage equality in Canada was accelerated by the passage of The Charter of Rights and Freedoms in 1982. Until that time, judges relied heavily on existing law and past court decisions.42 Since 1982, they have been able to draw on the high-level principles found in the Charter and, in some cases, even create new law.

37 The right to marry was granted in Ontario (2003), British Columbia (2003), Quebec (2004), Yukon (2004), Manitoba (2004), Nova Scotia (2004), Saskatchewan (2004), Newfoundland and Labrador (2004), New Brunswick (2005), and Alberta, Prince Edward Island, Nunavut and the Northwest Territories (2005). 38 It should be added that in spite of tidal wave of court victories on the rights of same-sex couples, the passage of legislation in Parliament to amend the definition of marriage was not without its dramatic moments. See A. Panetta (2005). 39 The Netherlands was the first country to legalize same-sex marriage (April 1, 2001), followed by Belgium (June 1, 2003), Spain (July 3, 2005), and Canada (July 20, 2005). 40 Anderson and Fetner (2008), p. 311. 41 See also M.W. Lehman (2006) who attempted to account for the dramatic shift from minority support to majority support that occurred between 1997 and 2004. He argued that contrary to what public opinion polls had suggested, opinions on same-sex marriage could no longer be justifiably ascribed to demographic origins. In large part, the majority support that citizens held by 2004 came about as the result of shifts in attitudes, values, and beliefs, rather than from demographic factors. 42 If there had been no Charter, Canada might have needed to resort to a referendum as Australia did in November, 2017 (Bol, 2017).

The courts

We know of only one court case in China in which a same-sex couple had requested the right to marry.43 They lost the case in a brief three-hour hearing in Changsha City in Hunan Province. They indicated they planned to appeal, but it is unlikely that the original judgment will be overturned.44 The goal of achieving same-sex marriage for the millions of gay and lesbian Chinese men and women will probably not be realized through the courts.

However, one person, event, or organization does not by itself produce a cultural, social revolution. One needs a “thousand points of light,” and only then will the sky begin to brighten. Is China experiencing some of that illumination already? We think it is.

The media

Twenty years ago, discussion of LGBT issues in the official press was extremely rare. But in the last four years, the China Daily has published more than seventeen positive articles in its international edition, and the People’s Daily has published eight. Gay, lesbian, bisexual, and transgender people are no longer invisible in print. Also, a major survey report by WorkForLGBT predicts that many more will openly acknowledge their sexual orientation in the next five years.45 With a greater number out in the public sphere, fear or hostility in the general population should decrease.46

Unfortunately, other media—notably, film, the Internet,47 and television—are not doing so well.48 Perhaps because they are so influential, they receive extra attention. When the university participants in our research49 were asked to indicate the sources from which they

43 Shan Juan (2016) and T. Phillips (2016). 44 Jefferys and Wang (2018, p. 203) take a more positive view: “. . . the court’s acceptance of the case is viewed as a milestone in terms of LGBT affirmative action on civil rights. It highlights the potential to alter regulations related to the legal registration of marriages in China, which are administrative rather than celebratory or religious in nature.” 45 Zhou Wenting, China Daily (2016). 46 As has been demonstrated at least in a Western context by G. M. Herek and E. K. Glunt (1993); A. L. Cotton-Huston and B. M. Waite (2000); L. M. Lance (1987); and J. Wells and M. L. Franken (1987). 47 The country’s most iconic lesbian social media platform Rela (热拉) was shut down without warning on May 26, 2018. No official explanation for the shutdown was given by authorities. 48 For a concise overview of developments in these areas, see E. Jefferys and Haiqing Yu (2015), p. 82ff. 49 Cochrane and Wang (2013), p. 52, fn. 23. gained the most information about gay and lesbian issues, films and the Internet scored the highest:

Females: Males: Film50 94% (77) Internet 82% (96) Internet 72% (59) Film 80% (93) Discussion with friends 71% (58) Discussion with friends 68% (80) Newspapers/magazines 66% (54) Newspapers/magazines 64% (75) Literature 66% (54) TV 56% (65)

In June, 2017, China’s State Administration of Press, Publication, Radio, Film and Television informed producers that it would ban all TV programs that show “abnormal sexual relationships and behaviours, such as incest, same-sex relationships, sexual perversion, sexual assault, sexual abuse, and sexual violence.”51 Given that sexual orientation is no longer a criminal matter nor evidence of mental illness, it is puzzling why it should be placed in a category with sexual abuse and sexual violence.52 In a Weibo post, Li Yinhe responded that under these regulations, “all audio-visual art will be revoked” and that “trying to regulate and censor people’s desires is as absurd as trying to regulate and censor people’s appetites.” Over the past sixty-five years, tight restrictions on artists have alternated with periods of relative relaxation. The banning of TV programs showing same-sex relationships as anything other than normal may only be temporary.

Parents and Friends of Lesbians and Gays (PFLAG)

PFLAG (China) was founded in Guangdong in June, 2008, largely as a self-help group in which parents with LGBT children support one another. After several regional and national conferences,53 it has also begun to take political initiatives. For example, in 2013, more than 100 PFLAG parents wrote an open letter to delegates of the National People’s Congress (NPC)

50 When the Chinese government banned the distribution of the film Brokeback Mountain in 2005, so many pirated copies circulated that the acronym “BBM” quickly entered popular speech, as in “That is a BBM situation,” or “She is a BBM ally.” 51 See Ellis-Petersen (2016) and J. Horowitz and Zheping Huang (2016). In a Weibo post, Li Yinhe responded that under these regulations, “all audio-visual art will be revoked” and that “trying to regulate and censor people’s desires is as absurd as trying to regulate and censor people’s appetites.” 52 This line of argument has been taken in a court case launched in Beijing No. 1 Court in early 2018. See Phila Siu (2018). 53 One site claims that “PFLAG China has held nine national conferences since 2009 and 28 regional conferences since 2012. Today, the organization reaches over 90 cities in China, with volunteers from Xinjiang to Sanya.” LGBeaT (May 9, 2017). demanding marriage equality for their children.54 In a 2015 initiative, 61-year-old Lin Xianzhi, a member of PFLAG and the father of a gay man from Ganzhou, Jiangxi Province, sent a letter to 1,000 national legislators and political advisors calling for discussion of the legalization of homosexual marriage during the upcoming two sessions.55 Lin did receive one response from Ran Ran, a deputy from Chongqing Municipality. Although she did not present the marriage law amendments, she did propose that “information should be included in textbooks used in higher education.”56 Although not what was hoped for, it was seen as a positive sign.57

The PFLAG letter was supported by a proposal from Li Yinhe in which she presented the benefits of an amendment to the marriage act. She argued that legalizing same-sex marriage would (1) benefit Chinese society by giving citizens equal rights, (2) reduce the spread of HIV by encouraging monogamy,58 (3) revive China’s traditional cultural acceptance of same-sex eroticism, (4) build China’s international reputation as a promoter rather than violator of human rights, (5) promote social harmony between minority and mainstream groups, and (6) reduce the number of “fake” marriages.

We predict that PFLAG members will play an increasingly active political role in pushing for LGBT equality. They are personally motivated to engage in this struggle and because of their unconditional love for their children, they provoke deep respect and sympathy from other parents.

Direct initiatives by citizens

Not waiting for government approval for same-sex marriages, several LGBT couples have applied at their district’s marriage registry office and staged their own weddings. Interestingly,

54 A. Li (2013). See also J. Fullerton (2015). 55 Zhang Yiqian (2015) and Cao Siqi (2015). Lin pointed out that one member of a gay couple cannot even sign a medical form for his or her partner when one of them is hospitalized. 56 Zhang Yiqian (2015). See also Qian Jinghua (2017). 57 Li Xianzhi likely has at least one other ally in the Congress in Professor Sun Xiaomei who has made efforts to have this year’s “Two Sessions” extend China’s anti-domestic violence law to protect the LGBT community. She has also been trying to protect LGBT rights in the workplace: "I've been working together with many other legislators to push for the adoption of an anti-workplace prejudice law, part of which rules that transgender people would not be discriminated against in the workplace" (Gong Zhe, 2017) 58 See S. Pan (July 27, 2015). a number of these events have been covered in the press complete with photos.59 Their visibility in the media helps others overcome their opposition.

The political approach

On six occasions (2003, 2005, 2006, 2013, 2015, and 2016), the renowned sociologist Li Yinhe has proposed amendments to the Marriage Act at the NPC that would allow same-sex marriage. As has been the case in all of her previous submissions, her proposal failed to be included on the agenda because she was unable to secure the necessary thirty signatures. Few delegates, it would seem, want to be seen supporting a controversial proposal.

In 2013, a group of eight lawyers urged the government to provide legal protections for gay partners.60 They pointed out that LGBT persons who are unable to get legally married are excluded from a range of rights in property ownership, inheritance, and child adoptions. In Shanghai, many homosexual people cannot even own a home because the city has banned unmarried, non-native residents from purchasing property.61

Legalization of Same-sex Marriage in Taiwan

On May 24, 2017, Taiwan took the “Canadian route” when its Constitutional Court struck down laws preventing same-sex marriage as unconstitutional because they violate citizens’ rights to equality.62 It instructed the Taiwanese parliament to amend the old law or enact new laws within two years or the legislation would be changed by the courts by default. The decision had been opposed vigorously by conservative Christians. Interestingly, the court held that disallowing same-sex marriage on grounds of reproduction arguments—central to the

59 Huang Zhiling and Zhang Ao (January 3, 2010) reporting from Chengdu; Jia Xu (January 24, 2011) from Beijing; China Daily (January 5, 2013) from Shenzhen; B. Main (February 27, 2013) from Shanghai; Xu Jingxi (April 17, 2013) from Guangzhao; Chengcheng Jiang (May 1, 2013) from Beijing; Xu Jingxi (May 1, 2013) from Guangzhou; K. Hunt & S. Dong (July 2, 2015) from Beijing; Shan Juan (April 14, 2016) from Changsha. 60 Xinhua (2013). Liu Wei and Huang Yizhi made the suggestions in a letter to the legislative affairs commission of the Standing Committee of the National People's Congress (NPC) on May 16, 2013. 61 Jeffreys, E. & Pan Wang (October 2, 2017) ask whether “civil partnerships” would be a practical compromise in which the PRC government could “permit[ ] same-sex civil partnership registration through the household registration system, and then, if such a change were well received, present[ ] a draft law on marriage equality for public consultation.” Unable to marry, LGBTers are even at a disadvantage in applying for car license plates! See B. Carlson (October, 2017). 62 See Laney Zhang (June 5, 2017) and Xinhua (June 25, 2017). churches’ position—had "no apparent rational basis." According to The Economist, the Chinese media reacted to this news with “a barely stifled yawn”63: “Just one state-owned, English- language newspaper took notice of a decision64 that would be the first to legalize gay marriage in an Asian country. . . .”65

Whether and how the government in Beijing will respond to this development remains to be seen. Taiwan may well have “thrown a spanner into the works.” To liberalize its own policy too quickly might look like it is being overly attentive to events in Taiwan. Thus, Taiwan’s policy change may seriously delay any application of the equality principle in China.

Festivals

Since 2009, Shanghai, reputedly the most socially progressive city in China, has successfully organized an annual Pride Festival that celebrates diversity.66 Organized entirely by volunteers with the support of media, businesses, individuals, and foreign consulates, it aim raises awareness and visibility, and promotes self-acceptance and acceptance within and for the LGBTQ community through sports, cultural events, and social activities. It has grown from eight organizers and a modest gathering of 3,000 attendees in 2009, to 30 organizers and 6,500 participants in 2017 over eight days. Because political demonstrations of any kind are banned in China, there was no parade. However, there was a Pride Bike Ride and a Pride Run. Even in its first year, the China Daily (2009) praised the festival as “a good showcase of the country's social progress.”

Canada and China: A final comparison

What are the current prospects for same-sex marriage in China?67 Hildebrandt (2010) asked what might motivate the government to approve of amendments to the Marriage Act that would legalize same-sex marriage. He offered three possibilities: (1) pressure from LGBT organizations from within China; (2) a response to international pressure; or (3) a tactical move by the government to improve its reputation in the world. Given our survey of the activity with the PRC in support of LGBT initiatives—particularly, same-sex marriage—we believe that

63 J.P. (2017). 64 See the China Daily for May 25, 2017 Retrieved February 7, 2018, from http://www.chinadaily.com.cn/china/2017-05/25/content_29489324.htm 65 For a survey of the recent wave of countries around the world that are legalizing same-sex marriage, see P. Tatchel (2018). 66 Similar events planned for Guangzhou, Changsha, and Chengdu have experienced difficulties as has the Beijing Queer Film Festival since its inception in 2001. 67 See Xinhua (2013). Hildebrandt construes the source for governmental change too narrowly. While there would be some international benefits from adopting a more liberal stance on LGBT issues, we do not think that pressure from outside its borders would provide a strong motivating force on Chinese officials. When change comes, we believe it will be the result of a wide range of support from within the country. It will be a “made-in-China” policy. Li Yinhe, who has fought in the trenches for so long, offered a pessimistic view in 2007: “An issue like same-sex marriage is not possible in a developing country like China. When the time is ripe, social reform will happen naturally. Perhaps I will only be able to act as a bystander instead of a participant.”68 Ten years later, she may have reason for more optimism.

When involved in a prolonged political struggle, progress seems incredibly slow. That was certainly true for those who fought for equal rights for the LGBT community in Canada in the 1980s and 1990s. After pouring enormous resources of time, energy and money into initiating and sustaining court cases, they might have thought that they would never see the day when same-sex marriage would be realized. But looking back, we can see there was movement even if the ultimate goal always seemed out of reach. Further, the court cases did not arise in a vacuum. For years, activists had been establishing support agencies, holding conferences,69 starting university courses, establishing Gay-Straight Alliances (GSAs) in high schools, holding protests, writing letters to the editor, submitting newspaper articles, demonstrating against homophobic public figures, challenging the content of school materials,70 distributing pamphlets, establishing periodicals, and initiating research.

We believe that similar activity is underway today in China though the particulars differ from our Canadian experience. Note the increased interest in LGBT issues by media, greater activity by PFLAG, festivals, direct political lobbying, well-publicized applications by couples seeking marriage licences, renewed research in the experiences of LGBT persons (“their world”), and a growing acceptance of the phenomenon by younger people.

This activity may be showing results already. One recent online poll showed that a majority of over 71,000 respondents favored amending China’s Marriage Law to allow for same-sex marriage. Leng (2016) points out that Chinese Internet users are generally younger, well educated, and more liberal than the general population. She claims that the opinions reflected in this poll are predictive of an emergent social trend supporting “tongzhi” rights in China. Jeffreys and Wang (2017) believe that the chances for marriage equality have been increased in recent years by louder domestic public advocacy, the government’s acceptance at a December 2013 UN Human Rights Council review, and by the 2017 Taiwan Constitutional Court’s ruling

68 Li Yinhe (2007). 69 See, for example, Breaking the Silence at the University of Saskatchewan. 70 British Columbia Teachers’ Federation (2017). that same-sex couples are entitled to marry. There are some grounds for optimism. Change may be coming faster than we think.

A few years ago in Canada, those small-initiative seedlings pierced the bureaucratic permafrost. They blossomed and transformed the landscape dramatically. We may now be witnessing a similar springtime in China.

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