Review of International Studies (2011).37.1313-1333 2010 British International Studies Association do元10.10171S026021051000080X First published online 26 Aug 2010 Same-sex marriage in China?The strategic promulgation of a progressive policy and its impact on LGBT activism TIMOTHY HILDEBRANDT* Abstract.Using the case of same-sex marriage in China,this article explores two fundamental questions:What motivates a non-democratic state to promulgate a progressive human rights policy?More importantly,when a non-democratic state adopts such policies, what is the impact on activism?I argue that same-sex marriage legislation could be used strategically to improve China's human rights reputation.While this would extend a pinnacle right to gays and lesbians,the benefits might not outweigh the costs:I show that when imposed from above,a same-sex marriage law would incur opportunity costs on activism;the passage of this progressive policy would eliminate an important issue around which the Lesbian,Gay,Bisexual and Trans-gender/-sexual (LGBT)community might develop.Moreover,even if such policy is promulgated,the right to marry will do little to challenge the larger social pressures that make life difficult for LGBT Chinese. Timothy Hildebrandt is a Postdoctoral Fellow at the US-China Institute at University of Southern California.His book manuscript examines the complex state-society relationship in China and shows how the emergence of Chinese nongovernmental organisations has strengthened,not weakened,the authoritarian state.Previously,he was Visiting Fellow at the Center for Asian Democracy at University of Louisville.Timothy can be contacted at: tim.hildebrandt@gmail.com. Introduction In 2003,amidst the push for same-sex marriage in many Western democracies, China,the world's most populous country -and presumably also home to the world's largest homosexual population-began its own flirtation with such a policy when Li Yinhe,a prominent sociologist,first submitted a proposal to legalise same-sex marriage at meetings of the National Committee of the Chinese People's Political Consultative Conference (CPPCC)and National People's Congress (NPC).Although the effort failed to gain the necessary 30-member vote to move I gratefully acknowledge several individuals for their invaluable insights:Helen Kinsella.Edward Friedman,Melanie Manion,Cheng Li,Damien Lu,Courtney Hillebrecht,Peter Holm and two anonymous reviewers.Research was supported by a National Science Foundation Integrated Graduate Education and Research Traineeship at University of Wisconsin-Madison and the Center for Asian Democracy at University of Louisville.Earlier versions of this article were presented at the Wisconsin International Relations Colloquium and the Midwest Political Science Association Conference. Xinhua (16 March 2006). 1313
Same-sex marriage in China? The strategic promulgation of a progressive policy and its impact on LGBT activism TIMOTHY HILDEBRANDT* Abstract. Using the case of same-sex marriage in China, this article explores two fundamental questions: What motivates a non-democratic state to promulgate a progressive human rights policy? More importantly, when a non-democratic state adopts such policies, what is the impact on activism? I argue that same-sex marriage legislation could be used strategically to improve China’s human rights reputation. While this would extend a pinnacle right to gays and lesbians, the benefits might not outweigh the costs: I show that when imposed from above, a same-sex marriage law would incur opportunity costs on activism; the passage of this progressive policy would eliminate an important issue around which the Lesbian, Gay, Bisexual and Trans-gender/-sexual (LGBT) community might develop. Moreover, even if such policy is promulgated, the right to marry will do little to challenge the larger social pressures that make life difficult for LGBT Chinese. Timothy Hildebrandt is a Postdoctoral Fellow at the US-China Institute at University of Southern California. His book manuscript examines the complex state-society relationship in China and shows how the emergence of Chinese nongovernmental organisations has strengthened, not weakened, the authoritarian state. Previously, he was Visiting Fellow at the Center for Asian Democracy at University of Louisville. Timothy can be contacted at: {tim.hildebrandt@gmail.com}. Introduction In 2003, amidst the push for same-sex marriage in many Western democracies, China, the world’s most populous country – and presumably also home to the world’s largest homosexual population – began its own flirtation with such a policy when Li Yinhe, a prominent sociologist, first submitted a proposal to legalise same-sex marriage at meetings of the National Committee of the Chinese People’s Political Consultative Conference (CPPCC) and National People’s Congress (NPC).1 Although the effort failed to gain the necessary 30-member vote to move * I gratefully acknowledge several individuals for their invaluable insights: Helen Kinsella, Edward Friedman, Melanie Manion, Cheng Li, Damien Lu, Courtney Hillebrecht, Peter Holm and two anonymous reviewers. Research was supported by a National Science Foundation Integrated Graduate Education and Research Traineeship at University of Wisconsin-Madison and the Center for Asian Democracy at University of Louisville. Earlier versions of this article were presented at the Wisconsin International Relations Colloquium and the Midwest Political Science Association Conference. 1 Xinhua (16 March 2006). Review of International Studies (2011), 37, 1313–1333 2010 British International Studies Association doi:10.1017/S026021051000080X First published online 26 Aug 2010 1313
1314 Timothy Hildebrandt forward,she was not deterred.Li's same-sex marriage proposal has become an annual event,a singular effort to bring about legislation that could give gays and lesbians equal rights under a regime that has long-professed its commitment to egalitarianism in theory but often falls short in practice.2 Given growing support for same-sex marriage in other countries,as well as the tenacity of some activists like Li,what is the possibility of China promulgating a policy that would legalise same-sex marriage?What would the state to gain from doing so?And how would such a policy affect gay and lesbian citizens? Although there is no large Lesbian,Gay,Bisexual and Transgender (LGBT) movement in China,'a recent case allows us to theorise about what effects might be felt in China if such a progressive policy were implemented.In the often divisive world of Chinese HIV/AIDS organisations,there has been much to fight over- resources and turf-and little to agree on.But in recent years,groups began to find common ground on a few issues.At a gathering in autumn 2007,several organisations began to coordinate efforts to oppose a government ban on HIV-positive individuals travelling into the country.Non-governmental organis- ation (NGO)leaders planned to present their argument at the annual meeting of the Global Fund (an inter-governmental organisation to combat HIV/AIDS, malaria,and tuberculosis),at which high-ranking Chinese government officials were expected to attend.But before they had time to present their case-and commencing an anticipated battle-the government announced,to great fanfare, that it would change the policy.Future meetings to coordinate opposition were cancelled.There was a noticeable bitter-sweet reaction among the activists.?A key interest of the groups was met,but the government's abrupt reversal also created a significant opportunity cost:the chance for social organisations to coalesce was also gone. China has no domestic campaigns to legalise same-sex marriage on the scale of those in the West.The nascent civil society sector representing the LGBT community has been most concerned with stopping the spread of HIV/AIDS;far less time is devoted to same-sex marriage.But despite the lack of a significant indigenous push for such a policy,legalised same-sex marriage is not improbable in China.In this article,I theorise that the impetus for such a policy is likely to come not from the grassroots but rather the political centre.Although this policy 2 In this article I use the term 'Same-sex marriage'rather than 'Same-sex union'simply because LGBT activists in China overwhelmingly use the term 'tongxing hunyin /same-sex marriage /' 3 Although some groups were LGBT in name,few were so in practice.The vast majority of informants for this research were leaders of organisations that represented self-identified gay men or lesbian women.For reasons I explore elsewhere (Forging a Harmonious Middle Path'The Rise of Social Organizations and the Persistance of the Authoritarian State in China,book manuscript,2010). there is limited networking between groups;organisations representing gay men and lesbian women have,in recent years,grown apart.As for bisexuals,one activist noted that the number of bisexual men in China is probably far higher than in the West,due to the frequency of homosexual men who marry straight women to avoid social or family pressure.There are no known groups working exclusively for the interests of transsexual/gendered persons.However,a handful of gay men's groups have reached out to this community,particularly in China's southwestern Yunnan province.With these qualifications in mind,I use LGBT throughout this article as shorthand for the universe of these types of activists,social organisations,and citizens. 4Although the government stated its intentions in 2007,the ban was not officially reversed until April 2010. 5 Participant observation,Kunming.China (11 November 2007)
forward, she was not deterred. Li’s same-sex marriage proposal has become an annual event, a singular effort to bring about legislation that could give gays and lesbians equal rights under a regime that has long-professed its commitment to egalitarianism in theory but often falls short in practice.2 Given growing support for same-sex marriage in other countries, as well as the tenacity of some activists like Li, what is the possibility of China promulgating a policy that would legalise same-sex marriage? What would the state to gain from doing so? And how would such a policy affect gay and lesbian citizens? Although there is no large Lesbian, Gay, Bisexual and Transgender (LGBT) movement in China,3 a recent case allows us to theorise about what effects might be felt in China if such a progressive policy were implemented. In the often divisive world of Chinese HIV/AIDS organisations, there has been much to fight over – resources and turf – and little to agree on. But in recent years, groups began to find common ground on a few issues. At a gathering in autumn 2007, several organisations began to coordinate efforts to oppose a government ban on HIV-positive individuals travelling into the country. Non-governmental organisation (NGO) leaders planned to present their argument at the annual meeting of the Global Fund (an inter-governmental organisation to combat HIV/AIDS, malaria, and tuberculosis), at which high-ranking Chinese government officials were expected to attend. But before they had time to present their case – and commencing an anticipated battle – the government announced, to great fanfare, that it would change the policy.4 Future meetings to coordinate opposition were cancelled. There was a noticeable bitter-sweet reaction among the activists.5 A key interest of the groups was met, but the government’s abrupt reversal also created a significant opportunity cost: the chance for social organisations to coalesce was also gone. China has no domestic campaigns to legalise same-sex marriage on the scale of those in the West. The nascent civil society sector representing the LGBT community has been most concerned with stopping the spread of HIV/AIDS; far less time is devoted to same-sex marriage. But despite the lack of a significant indigenous push for such a policy, legalised same-sex marriage is not improbable in China. In this article, I theorise that the impetus for such a policy is likely to come not from the grassroots but rather the political centre. Although this policy 2 In this article I use the term ‘Same-sex marriage’ rather than ‘Same-sex union’ simply because LGBT activists in China overwhelmingly use the term ‘tongxing hunyin [same-sex marriage]’. 3 Although some groups were LGBT in name, few were so in practice. The vast majority of informants for this research were leaders of organisations that represented self-identified gay men or lesbian women. For reasons I explore elsewhere (Forging a Harmonious Middle Path: The Rise of Social Organizations and the Persistance of the Authoritarian State in China, book manuscript, 2010), there is limited networking between groups; organisations representing gay men and lesbian women have, in recent years, grown apart. As for bisexuals, one activist noted that the number of bisexual men in China is probably far higher than in the West, due to the frequency of homosexual men who marry straight women to avoid social or family pressure. There are no known groups working exclusively for the interests of transsexual/gendered persons. However, a handful of gay men‘s groups have reached out to this community, particularly in China‘s southwestern Yunnan province. With these qualifications in mind, I use LGBT throughout this article as shorthand for the universe of these types of activists, social organisations, and citizens. 4 Although the government stated its intentions in 2007, the ban was not officially reversed until April 2010. 5 Participant observation, Kunming, China (11 November 2007). 1314 Timothy Hildebrandt
Same-sex marriage in China? 1315 would extend a significant right to gays and lesbians,the benefits might not outweigh the costs.As in the case of the travel ban reversal,a sudden policy change can have a potentially debilitating effect on a budding social movement. I begin this article by explaining why the Chinese government might promul- gate a same-sex marriage policy by examining the potential benefits it could provide the state.Borrowing from International Relations literature on the strategic use of norms,I argue that the key advantage of a same-sex marriage policy could be in using the progressive legislation to deflect criticism of China's human rights record.Next,I engage several counter-arguments,examining the potential costs of such a policy to the state.Because China lacks deeply rooted and institutionalised cultural injunctions against homosexuality,and since the public places decreasing value on marriage,the cultural costs of promulgating a same-sex marriage policy are relatively low.Political counter-arguments are also not entirely convincing:regime type is not necessarily an effective predictor of positive policies towards LGBT citizens in other political contexts.I also show that despite frequent criticism about its human rights record,China is not reluctant to engage in these debates,provided it has some latitude in defining and evaluating human rights practices. In the second section,I explore several possible effects of this policy change. The most obvious benefit is that such legislation could help improve sexual health and decrease discrimination.Nonetheless,drawing on insights from social move- ment literatures and recent empirical examples,I argue that the legislation could carry heavy costs that would outweigh these benefits.First,when imposed from above,a same-sex marriage law would incur opportunity costs on activism;the passage of this progressive policy would eliminate an important issue around which the nascent LGBT community might rally,build a base,and further develop.In other words,an immediate victory for gay rights,without a significant struggle, might mean a long-term loss for China's fledgling civil society.Second,even if a same-sex marriage policy is promulgated,in part because of limited resonance of marriage in Chinese society,the right to marry among homosexual citizens will do little to challenge the larger social pressures that make life difficult for LGBT Chinese. Same-sex marriage as a (strategic)human right Same-sex marriage policies are often the culmination of significant pressure from the grassroots elsewhere.But in China,a same-sex marriage law is unlikely to come about on account of domestic non-governmental pressure.Although Chinese LGBT activism has grown significantly in recent years-facilitated by Internet- based networking and increased political space granted to NGOs that address the HIV/AIDS crisis-organisations remain few in number and weak in capacity.? 6 Kelly Kollman.Same-Sex Unions:The Globalization of an Idea'.International Studies Quarterly, 51(2007).pp.329-57. 7 Because few of these groups are legally registered,the exact number of gay and lesbian groups is impossible to ascertain.However,insiders believe China is home to roughly 200 groups that primarily work for the interests of gay men,and less than fifteen for lesbian women.This imbalance
would extend a significant right to gays and lesbians, the benefits might not outweigh the costs. As in the case of the travel ban reversal, a sudden policy change can have a potentially debilitating effect on a budding social movement. I begin this article by explaining why the Chinese government might promulgate a same-sex marriage policy by examining the potential benefits it could provide the state. Borrowing from International Relations literature on the strategic use of norms, I argue that the key advantage of a same-sex marriage policy could be in using the progressive legislation to deflect criticism of China’s human rights record. Next, I engage several counter-arguments, examining the potential costs of such a policy to the state. Because China lacks deeply rooted and institutionalised cultural injunctions against homosexuality, and since the public places decreasing value on marriage, the cultural costs of promulgating a same-sex marriage policy are relatively low. Political counter-arguments are also not entirely convincing: regime type is not necessarily an effective predictor of positive policies towards LGBT citizens in other political contexts. I also show that despite frequent criticism about its human rights record, China is not reluctant to engage in these debates, provided it has some latitude in defining and evaluating human rights practices. In the second section, I explore several possible effects of this policy change. The most obvious benefit is that such legislation could help improve sexual health and decrease discrimination. Nonetheless, drawing on insights from social movement literatures and recent empirical examples, I argue that the legislation could carry heavy costs that would outweigh these benefits. First, when imposed from above, a same-sex marriage law would incur opportunity costs on activism; the passage of this progressive policy would eliminate an important issue around which the nascent LGBT community might rally, build a base, and further develop. In other words, an immediate victory for gay rights, without a significant struggle, might mean a long-term loss for China’s fledgling civil society. Second, even if a same-sex marriage policy is promulgated, in part because of limited resonance of marriage in Chinese society, the right to marry among homosexual citizens will do little to challenge the larger social pressures that make life difficult for LGBT Chinese. Same-sex marriage as a (strategic) human right Same-sex marriage policies are often the culmination of significant pressure from the grassroots elsewhere.6 But in China, a same-sex marriage law is unlikely to come about on account of domestic non-governmental pressure. Although Chinese LGBT activism has grown significantly in recent years – facilitated by Internetbased networking and increased political space granted to NGOs that address the HIV/AIDS crisis – organisations remain few in number and weak in capacity.7 6 Kelly Kollman, ‘Same-Sex Unions: The Globalization of an Idea’, International Studies Quarterly, 51 (2007), pp. 329–57. 7 Because few of these groups are legally registered, the exact number of gay and lesbian groups is impossible to ascertain. However, insiders believe China is home to roughly 200 groups that primarily work for the interests of gay men, and less than fifteen for lesbian women. This imbalance Same-sex marriage in China? 1315
1316 Timothy Hildebrandt Moreover,interest in securing marriage rights is relatively low among activists.To capture attitudes toward same-sex marriage,my nationwide surveys asked leaders from LGBT NGOs to rank six common issues addressed by their groups (same-sex marriage,HIV/AIDS,social pressure,family pressure,discrimination,and human rights)by time spent.Anticipating that a group might spend little time on an issue that they would prefer to address if given the choice,respondents were asked to then rank each issue by interest.The vast majority of respondents reported that among all the issues,they spent the least amount of time on same-sex marriage;it also ranked lowest in importance.Of the sixty respondents,same-sex marriage was never ranked first in time spent,and only 26 per cent placed it as second or third. Same-sex marriage was ranked as an issue of most interest by only nine per cent of survey respondents.The survey found no significant variation in time spent and interest.Same-sex marriage is simply not yet of great interest to LGBT leaders. While important,domestic civil society actors do not always affect policy change alone.Transnational advocacy networks can be crucial for pressuring authoritarian governments to adopt policies and norms that they might otherwise be reluctant to.Early studies of same-sex marriage have identified transnational activists,in concert with local players,as key for promoting the norm shift necessary to promulgate such policies.1 In China,however,these networks are unlikely to have much impact on same-sex marriage,just as they have been somewhat ineffective on HIV/AIDS and environmental issues:international organi- sations have been reluctant to pressure the government;1 international NGOs have usually maintained a non-antagonistic attitude toward the state to ensure that they can continue legally operating in the country;and domestic NGOs have found that working with international networks can damage their government relations,which are crucial for existence in the authoritarian polity.2 Despite a weak domestic civil society and unreliable international partners, same-sex marriage could still become a reality in China-if it comes from the top-down.(After all,in authoritarian polities,policymaking is rarely,if ever,an authentically bottom-up process.)But the state is unlikely to promulgate the policy is best explained by the political and economic opportunities afforded to gay men due to HIV/AIDS; lesbian women are not identified as a high-risk group for HIV/AIDS and therefore have a more difficult time securing funding and government sponsors(Hildebrandt.Forging). s The data presented in this article are derived from 25 in-depth anonymous interviews of gay and lesbian activists in China,conducted from June 2007 to April 2008.as well as a survey of nearly 50 LGBT social organisation leaders administered in March 2008.Data were collected as part of a larger project examining the relationship of Chinese social organisations and the state.Hildebrandt. Forging. Margaret Keck and Kathryn Sikkink,Activists Beyond Borders (Ithaca:Cornell University Press, (1998). 1o Kollman,Same-sex'. At a meeting of the Global Fund,the leader of a domestic NGO implored the Global Fund to pressure the government to include more truly independent NGOs in its HIV/AIDS work.The Chair of the Fund promptly replied that while he was sympathetic to the issue raised by the activist. because the Global Fund is 'country-led'and relies on a strong partnership with governments in the countries it operates,it will not pressure these governments to do one thing or another.He was emphatic in noting that the Fund must work within the framework of existing national laws and not oppose them (Participant observation,Kunming.China(11 November 2007). 12 Timothy Hildebrandt and John A.Zinda.The False Promise of TNAs in China',working paper (University of Wisconsin-Madison,2009):Fengshi Wu,Double-mobilization:Transnational Advo- cacy Networks for China's Environment and Public Health',unpublished dissertation(University of Maryland,2005)
Moreover, interest in securing marriage rights is relatively low among activists. To capture attitudes toward same-sex marriage, my nationwide survey8 asked leaders from LGBT NGOs to rank six common issues addressed by their groups (same-sex marriage, HIV/AIDS, social pressure, family pressure, discrimination, and human rights) by time spent. Anticipating that a group might spend little time on an issue that they would prefer to address if given the choice, respondents were asked to then rank each issue by interest. The vast majority of respondents reported that among all the issues, they spent the least amount of time on same-sex marriage; it also ranked lowest in importance. Of the sixty respondents, same-sex marriage was never ranked first in time spent, and only 26 per cent placed it as second or third. Same-sex marriage was ranked as an issue of most interest by only nine per cent of survey respondents. The survey found no significant variation in time spent and interest. Same-sex marriage is simply not yet of great interest to LGBT leaders. While important, domestic civil society actors do not always affect policy change alone. Transnational advocacy networks can be crucial for pressuring authoritarian governments to adopt policies and norms that they might otherwise be reluctant to.9 Early studies of same-sex marriage have identified transnational activists, in concert with local players, as key for promoting the norm shift necessary to promulgate such policies.10 In China, however, these networks are unlikely to have much impact on same-sex marriage, just as they have been somewhat ineffective on HIV/AIDS and environmental issues: international organisations have been reluctant to pressure the government;11 international NGOs have usually maintained a non-antagonistic attitude toward the state to ensure that they can continue legally operating in the country; and domestic NGOs have found that working with international networks can damage their government relations, which are crucial for existence in the authoritarian polity.12 Despite a weak domestic civil society and unreliable international partners, same-sex marriage could still become a reality in China – if it comes from the top-down. (After all, in authoritarian polities, policymaking is rarely, if ever, an authentically bottom-up process.) But the state is unlikely to promulgate the policy is best explained by the political and economic opportunities afforded to gay men due to HIV/AIDS; lesbian women are not identified as a high-risk group for HIV/AIDS and therefore have a more difficult time securing funding and government sponsors (Hildebrandt, Forging). 8 The data presented in this article are derived from 25 in-depth anonymous interviews of gay and lesbian activists in China, conducted from June 2007 to April 2008, as well as a survey of nearly 50 LGBT social organisation leaders administered in March 2008. Data were collected as part of a larger project examining the relationship of Chinese social organisations and the state. Hildebrandt, Forging. 9 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders (Ithaca: Cornell University Press, (1998). 10 Kollman, ‘Same-sex’. 11 At a meeting of the Global Fund, the leader of a domestic NGO implored the Global Fund to pressure the government to include more truly independent NGOs in its HIV/AIDS work. The Chair of the Fund promptly replied that while he was sympathetic to the issue raised by the activist, because the Global Fund is ‘country-led’ and relies on a strong partnership with governments in the countries it operates, it will not pressure these governments to do one thing or another. He was emphatic in noting that the Fund must work within the framework of existing national laws and not oppose them (Participant observation, Kunming, China (11 November 2007). 12 Timothy Hildebrandt and John A. Zinda, ‘The False Promise of TNAs in China’, working paper (University of Wisconsin-Madison, 2009); Fengshi Wu, ‘Double-mobilization: Transnational Advocacy Networks for China‘s Environment and Public Health’, unpublished dissertation (University of Maryland, 2005). 1316 Timothy Hildebrandt
Same-sex marriage in China? 1317 out of altruism or in response to outside pressure.More likely,it would be done for an instrumental purpose:publicly extending marriage rights to same-sex couples could help China shed its reputation as a violator of human rights,thereby increasing its international legitimacy and also consolidating its rule at home,a task that is increasingly important as China's economic growth has slowed. International Relations scholars offer an instructive theoretical frame for this argument:non-democratic regimes often strategically use human rights norms to meet unrelated ends.In examining the ratification of human rights treaties, Hafner-Burton and Tsutsui argue that contrary to other claims,3 governments might ratify human rights treaties as 'window dressing'with no real intention of abiding by them.14 Subotic explains that such moves are intended to increase perceived legitimacy of a regime within the international community;these governments are 'instrumental norm adopters',who engage in role playing conformance'with their peers.5 Instrumental norm adoption is not dependent upon domestic pressure.In fact,these treaties are often ratified in countries where there is little desire for normative change;instrumental norm adoption most commonly occurs where there is weak demand for the law and limited threat from political spoilers.16 In drawing on these theoretical insights,I am borrowing the general logic that authoritarian regimes can adopt progressive positions to increase their resiliency. There are some key differences between the empirical cases that provoked these insights in international relations and that of same-sex marriage in China.These scholars focus their attention on pre-existing international norms and usually apply the argument to the ratification of treaties.There is neither an explicit treaty about LGBT rights nor any formal norm on 'relationship recognition.7 Moreover,the link between human rights and same-sex marriage is not unambiguous.For example,both supporters and opponents of same-sex marriage have used the UN Human Rights Declaration to strengthen their respective positions.Opponents argue that the Declaration's discussion of the importance in protecting the family is a tacit insistence that family,traditionally conceived,should be preserved and not adulterated by 'revisions'like same-sex marriage.s Supporters,on the other hand,use the Declaration to argue that same-sex marriage is the kind of fundamental human right it was intended to protect.Arguments for 'equal marriage'are most often rooted in a moral compulsion to do what is right for all. 13 Thomas Risse,Stephen Roppe,and Kathryn Sikkink.The Power of Human Rights (New York: Cambridge University Press,(1999):Ellen L.Lutz and Kathryn Sikkink,'International Human Rights Law and Practice in Latin America',International Organization,54:3 (2000),pp.633-59. 14 Emilie M.Hafner-Burton and Kiyoteru Tsutsui,'Human Rights in a Globalizing World:The Paradox of Empty Promises',American Journal of Sociology.110:5 (2005).pp.1373-411. is Jelena Subotic,Domestic Use of International Norms:Alternative Mechanisms for Compliance', Presented at Annual APSA Meeting (2007),p.16. 16Subotic,Domestic'. 17 Kollman,'Same-sex' s Scott T.FitzGibbon,The Formless City of Plato's Republic:How the Legal and Social Promotion of Divorce and Same-Sex Marriage Contravenes the Principles and Undermines the Projects of the Universal Declaration of Human Rights',Issues in Legal Scholarship,Article 5 (2005). 19 Celia Kitzinger and Sue Wilkinson,'Social Advocacy for Equal Marriage:The Politics of "Rights" and the Psychology of 'Mental Health',Analyses of Social Issues and Public Policy,4:1 (2004). pp.173-94.Arendt notes that 'even political rights,like the right to vote,and nearly all other rights enumerated in the Constitution,are secondary to the inalienable human rights to "life,liberty and the pursuit of happiness"proclaimed in the Declaration of Independence,and to this category the
out of altruism or in response to outside pressure. More likely, it would be done for an instrumental purpose: publicly extending marriage rights to same-sex couples could help China shed its reputation as a violator of human rights, thereby increasing its international legitimacy and also consolidating its rule at home, a task that is increasingly important as China’s economic growth has slowed. International Relations scholars offer an instructive theoretical frame for this argument: non-democratic regimes often strategically use human rights norms to meet unrelated ends. In examining the ratification of human rights treaties, Hafner-Burton and Tsutsui argue that contrary to other claims,13 governments might ratify human rights treaties as ‘window dressing’ with no real intention of abiding by them.14 Subotic explains that such moves are intended to increase perceived legitimacy of a regime within the international community; these governments are ‘instrumental norm adopters’, who engage in ‘role playing conformance’ with their peers.15 Instrumental norm adoption is not dependent upon domestic pressure. In fact, these treaties are often ratified in countries where there is little desire for normative change; instrumental norm adoption most commonly occurs where there is weak demand for the law and limited threat from political spoilers.16 In drawing on these theoretical insights, I am borrowing the general logic that authoritarian regimes can adopt progressive positions to increase their resiliency. There are some key differences between the empirical cases that provoked these insights in international relations and that of same-sex marriage in China. These scholars focus their attention on pre-existing international norms and usually apply the argument to the ratification of treaties. There is neither an explicit treaty about LGBT rights nor any formal norm on ‘relationship recognition’.17 Moreover, the link between human rights and same-sex marriage is not unambiguous. For example, both supporters and opponents of same-sex marriage have used the UN Human Rights Declaration to strengthen their respective positions. Opponents argue that the Declaration’s discussion of the importance in protecting the family is a tacit insistence that family, traditionally conceived, should be preserved and not adulterated by ‘revisions’ like same-sex marriage.18 Supporters, on the other hand, use the Declaration to argue that same-sex marriage is the kind of fundamental human right it was intended to protect. Arguments for ‘equal marriage’ are most often rooted in a moral compulsion to do what is right for all.19 13 Thomas Risse, Stephen Roppe, and Kathryn Sikkink, The Power of Human Rights (New York: Cambridge University Press, (1999); Ellen L. Lutz and Kathryn Sikkink, ‘International Human Rights Law and Practice in Latin America’, International Organization, 54:3 (2000), pp. 633–59. 14 Emilie M. Hafner-Burton and Kiyoteru Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’, American Journal of Sociology, 110:5 (2005), pp. 1373–411. 15 Jelena Subotic, ‘Domestic Use of International Norms: Alternative Mechanisms for Compliance’, Presented at Annual APSA Meeting (2007), p. 16. 16 Subotic, ‘Domestic’. 17 Kollman, ‘Same-sex’. 18 Scott T. FitzGibbon, ‘The Formless City of Plato‘s Republic: How the Legal and Social Promotion of Divorce and Same-Sex Marriage Contravenes the Principles and Undermines the Projects of the Universal Declaration of Human Rights’, Issues in Legal Scholarship, Article 5 (2005). 19 Celia Kitzinger and Sue Wilkinson, ‘Social Advocacy for Equal Marriage: The Politics of “Rights” and the Psychology of ‘Mental Health’, Analyses of Social Issues and Public Policy, 4:1 (2004), pp. 173–94. Arendt notes that ‘even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to “life, liberty and the pursuit of happiness” proclaimed in the Declaration of Independence, and to this category the Same-sex marriage in China? 1317
1318 Timothy Hildebrandt In addition,the argument for instrumental implementation has yet to be supported in the few analyses of same-sex marriage laws.In a study of same-sex marriage policies in western Europe,Kollman finds no evidence that states implement these laws as a result of instrumentalism.20 However,these cases were all in established democracies where social actors can play a key independent role in putting pressure on the state to meet their interests.State instrumentalism might not be as easily found in such contexts.In non-democratic states,on the other hand,instrumental policymaking is quite common and not just limited to human rights issues.For example,Massell shows how the Soviet Union quickly expanded women's rights throughout its central Asian territories in order to neutralise threats from traditional Muslim leaders.2 Several scholars have made similar points with respect to environmentalism:Biehl suggests that the Nazi party embraced 'ecofascism'in using ecological concerns to justify ultra-right policies to 'cleanse the homeland of outside 'intruders',22 Forsyth argues that ecological principles- and those who fight for them-can be used to embolden political hegemons in Southeast Asia,23 and Weinthal shows how newly independent states in Central Asia brokered environmental agreements to increase legitimacy for their de facto authoritarian regimes.24 This general phenomenon is not necessarily limited to authoritarian regimes,either:Habermas cynically suggests that in the democratic, Western world,'concern for human rights only concerns the attempt at opening new free markets'.25 Similarly rational arguments have been made to support same-sex marriage policies,with many focusing on economic justifications.Oswin contends that political costs and moral panics are increasingly outweighed by the economic benefits of being gay-friendly.26 In an economic analysis of same-sex marriage, Muller argues that the costs of legalising same-sex marriage to the state,such as lost tax revenue from gay couples filing together rather than as individuals,are outweighed by the benefits:married couples are more economically productive than right to home and marriage unquestionably belongs'.Hannah Arendt.'Reflections on Little Rock: A reply to critics'.Dissent (Spring.1959).pp.179-81.Thus,the broad category of human rights is strengthened,not weakened,by the inclusion of same-sex marriage.Claims about rights for gays and lesbians as a human right are explored in legal and gay identity scholarship.Kristen L.Walker, "Capitalism,Gay Identity,and International Human Rights Law',Australian Gay and Lesbian Law Journal.9(2000),pp.58-73:James Wilets,Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence:An International and Comparative Law Perspective',Albany Law Review.60(1997),pp.989-1050.In two landmark court cases in the US.the victorious sides used human rights rationales to successfully strike down the constitutionality of anti-sodomy laws nationwide (Lawrence v.Texas 2003)and legalise same-sex marriage in Massachusetts (Goodridge v. Dept.of Public Health 2003). 20 Kollman,'Same-sex'.p.332. 21 Gregory J.Massell,Law as an Instrument of Revolutionary Change in a Traditional Milieu:the Case of Soviet Central Asia'.Law Society Review,2:2 (1967),pp.179-228. 22 Janet Biehl,Ecology"and the Modernization of Fascism in the Germany Ultra-Right'in Janet Biehl and Peter Staudenmair (eds),Ecofascism:Lessons from the German Experience (San Francisco: AK Press,(1995). 2Tim Forsyth.Social Movements and Environmental Democratization in Thailand'in Shelia Jasanoff and Marybeth Long Martello (eds).Earthly Politics:Local and Global in International Politics (Cambridge:The MIT Press,2004).pp.195-216. 24 Erika Weinthal,State Making and Environmental Cooperation (Cambridge:The MIT Press.(2002). 25 Jurgen Habermas.The Structural Transformation of the Public Sphere (Cambridge:MIT Press, (1989)p.33. 26 Natalie Oswin,'The End of Queer (As We Knew It):Globalization and the Making of a Gay-Friendly South Africa',Gender.Place and Culture,14:1 (2007),pp.93-110
In addition, the argument for instrumental implementation has yet to be supported in the few analyses of same-sex marriage laws. In a study of same-sex marriage policies in western Europe, Kollman finds no evidence that states implement these laws as a result of instrumentalism.20 However, these cases were all in established democracies where social actors can play a key independent role in putting pressure on the state to meet their interests. State instrumentalism might not be as easily found in such contexts. In non-democratic states, on the other hand, instrumental policymaking is quite common and not just limited to human rights issues. For example, Massell shows how the Soviet Union quickly expanded women’s rights throughout its central Asian territories in order to neutralise threats from traditional Muslim leaders.21 Several scholars have made similar points with respect to environmentalism: Biehl suggests that the Nazi party embraced ‘ecofascism’ in using ecological concerns to justify ultra-right policies to ‘cleanse’ the homeland of outside ‘intruders’,22 Forsyth argues that ecological principles – and those who fight for them – can be used to embolden political hegemons in Southeast Asia,23 and Weinthal shows how newly independent states in Central Asia brokered environmental agreements to increase legitimacy for their de facto authoritarian regimes.24 This general phenomenon is not necessarily limited to authoritarian regimes, either: Habermas cynically suggests that in the democratic, Western world, ‘concern for human rights only concerns the attempt at opening new free markets’.25 Similarly rational arguments have been made to support same-sex marriage policies, with many focusing on economic justifications. Oswin contends that political costs and moral panics are increasingly outweighed by the economic benefits of being gay-friendly.26 In an economic analysis of same-sex marriage, Muller argues that the costs of legalising same-sex marriage to the state, such as lost tax revenue from gay couples filing together rather than as individuals, are outweighed by the benefits: married couples are more economically productive than right to home and marriage unquestionably belongs’. Hannah Arendt, ‘Reflections on Little Rock: A reply to critics’, Dissent (Spring, 1959), pp. 179–81. Thus, the broad category of human rights is strengthened, not weakened, by the inclusion of same-sex marriage. Claims about rights for gays and lesbians as a human right are explored in legal and gay identity scholarship. Kristen L. Walker, ‘Capitalism, Gay Identity, and International Human Rights Law’, Australian Gay and Lesbian Law Journal, 9 (2000), pp. 58–73; James Wilets, ‘Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective’, Albany Law Review, 60 (1997), pp. 989–1050. In two landmark court cases in the US, the victorious sides used human rights rationales to successfully strike down the constitutionality of anti-sodomy laws nationwide (Lawrence v. Texas 2003) and legalise same-sex marriage in Massachusetts (Goodridge v. Dept. of Public Health 2003). 20 Kollman, ‘Same-sex’, p. 332. 21 Gregory J. Massell, ‘Law as an Instrument of Revolutionary Change in a Traditional Milieu: the Case of Soviet Central Asia’, Law & Society Review, 2:2 (1967), pp. 179–228. 22 Janet Biehl, ‘“Ecology” and the Modernization of Fascism in the Germany Ultra-Right’ in Janet Biehl and Peter Staudenmair (eds), Ecofascism: Lessons from the German Experience (San Francisco: AK Press, (1995). 23 Tim Forsyth, ‘Social Movements and Environmental Democratization in Thailand’, in Shelia Jasanoff and Marybeth Long Martello (eds), Earthly Politics: Local and Global in International Politics (Cambridge: The MIT Press, 2004), pp. 195–216. 24 Erika Weinthal, State Making and Environmental Cooperation (Cambridge: The MIT Press, (2002). 25 Jurgen Habermas, The Structural Transformation of the Public Sphere (Cambridge: MIT Press, (1989), p. 33. 26 Natalie Oswin, ‘The End of Queer (As We Knew It): Globalization and the Making of a Gay-Friendly South Africa’, Gender, Place and Culture, 14:1 (2007), pp. 93–110. 1318 Timothy Hildebrandt
Same-sex marriage in China? 1319 single people and with more married couples caring for each other in old age and illness,the state would spend less on social services.27 An economic windfall might also result from more wedding ceremonies:legalised same-sex marriage in California,for instance,was estimated to inject over $370 million into the state's faltering economy.28 Upon the passage of proposition eight in California,which rescinded the right for same-sex couples to marry,analysts observed that American states with legal same-sex marriage would enjoy the economic spoils from couples that might have otherwise married in California.29 Economic arguments are tied to similar claims that same-sex marriage would improve public health.Marriage can afford stability,and improve physical and mental health of those who enter into them.30 Monogamous 'pairing off can diminish promiscuity,curtail the spread of venereal diseases,thereby cutting government health care costs.31 The political benefits of same-sex marriage outlined above are a necessary but not sufficient condition for policy promulgation.Before concluding that the benefits of same-sex marriage could compel the state to legalise it,potential costs must also be explored.Next,I explore three key counter-arguments to same-sex marriage in China:first,because of China's traditional culture the government is unlikely to sanction non-traditional familial arrangements;second,because China is an authoritarian state,it is unlikely to support a progressive policy like same-sex marriage;and third,the government does not want to engage in human rights discussions for fear that it might elicit even more criticism. 'China's cultural traditions get in the way' Culture has been cited as a key explanatory variable in understanding same-sex marriage policy promulgation around the world.The strength or weakness of institutionalised religion,in particular,is a key predictor of same-sex marriage. Kollman finds that in secular societies of Western Europe,same-sex marriage is not seen as a cultural threat;where 'religiousity'is low,same-sex marriage can be more easily framed as a human rights issue and successfully implemented.32 By extending these insights to China,which currently lacks the influential religious institutions that exist in other countries,same-sex marriage should hold promise;cultural costs, defined in this way,should not prove too high.However,China could still be properly characterised as traditional irrespective of its lack of religion.33 Rather than dismiss this counter-argument so quickly,China's Confucian tradition can be examined as a proxy for religion. 27 Christina Muller,'An Economic Analysis of Same-Sex Marriage',unpublished thesis(Universidad Compultense Madrid,2001),p.34. 28 Alana Semuels,'Gay Marriage a Gift to California's Economy'.Los Angeles Times(2 June 2008). 29 Reuters (26 November 2008). 30 Michael King and Annie Bartlett,What Same Sex Civil Partnerships May Mean for Health', Journal of Epidemiology Community Health,60:3 (2006).pp.188-91. 3 Muller,'Economic',p.36. 32 Kollman,'Same-sex'p.351.Kollman uses a country's average annual church attendance as a measure of 'religiousity'. aIn recent years.China has seen an increase in the number of self-identified Buddhists in the country: we could,therefore,just as easily explore other Buddhist countries to examine the cultural impediments to same-sex marriage or homosexuality.However,the results would likely be the same for Thailand,one of the most Buddhist countries in south-east Asia.has one of the most dynamic gay communities on the continent
single people and with more married couples caring for each other in old age and illness, the state would spend less on social services.27 An economic windfall might also result from more wedding ceremonies: legalised same-sex marriage in California, for instance, was estimated to inject over $370 million into the state’s faltering economy.28 Upon the passage of proposition eight in California, which rescinded the right for same-sex couples to marry, analysts observed that American states with legal same-sex marriage would enjoy the economic spoils from couples that might have otherwise married in California.29 Economic arguments are tied to similar claims that same-sex marriage would improve public health. Marriage can afford stability, and improve physical and mental health of those who enter into them.30 Monogamous ‘pairing off’ can diminish promiscuity, curtail the spread of venereal diseases, thereby cutting government health care costs.31 The political benefits of same-sex marriage outlined above are a necessary but not sufficient condition for policy promulgation. Before concluding that the benefits of same-sex marriage could compel the state to legalise it, potential costs must also be explored. Next, I explore three key counter-arguments to same-sex marriage in China: first, because of China’s traditional culture the government is unlikely to sanction non-traditional familial arrangements; second, because China is an authoritarian state, it is unlikely to support a progressive policy like same-sex marriage; and third, the government does not want to engage in human rights discussions for fear that it might elicit even more criticism. ‘China’s cultural traditions get in the way’ Culture has been cited as a key explanatory variable in understanding same-sex marriage policy promulgation around the world. The strength or weakness of institutionalised religion, in particular, is a key predictor of same-sex marriage. Kollman finds that in secular societies of Western Europe, same-sex marriage is not seen as a cultural threat; where ‘religiousity’ is low, same-sex marriage can be more easily framed as a human rights issue and successfully implemented.32 By extending these insights to China, which currently lacks the influential religious institutions that exist in other countries, same-sex marriage should hold promise; cultural costs, defined in this way, should not prove too high. However, China could still be properly characterised as traditional irrespective of its lack of religion.33 Rather than dismiss this counter-argument so quickly, China’s Confucian tradition can be examined as a proxy for religion. 27 Christina Muller, ‘An Economic Analysis of Same-Sex Marriage’, unpublished thesis (Universidad Compultense Madrid, 2001), p. 34. 28 Alana Semuels, ‘Gay Marriage a Gift to California‘s Economy’, Los Angeles Times (2 June 2008). 29 Reuters (26 November 2008). 30 Michael King and Annie Bartlett, ‘What Same Sex Civil Partnerships May Mean for Health’, Journal of Epidemiology & Community Health, 60:3 (2006), pp. 188–91. 31 Muller, ‘Economic’, p. 36. 32 Kollman, ‘Same-sex’, p. 351. Kollman uses a country‘s average annual church attendance as a measure of ‘religiousity’. 33 In recent years, China has seen an increase in the number of self-identified Buddhists in the country; we could, therefore, just as easily explore other Buddhist countries to examine the cultural impediments to same-sex marriage or homosexuality. However, the results would likely be the same for Thailand, one of the most Buddhist countries in south-east Asia, has one of the most dynamic gay communities on the continent. Same-sex marriage in China? 1319
1320 Timothy Hildebrandt According to this related counter-argument,China's Confucian roots,which emphasise traditional conceptions of family,are too deeply inculcated into society to approve of government-sanctioned same-sex marriage.To evaluate the veracity of this cultural argument,it is instructive to compare attitudes towards homo- sexuality in two other countries with Confucian backgrounds:Taiwan and Singapore share similar culture traditions,each boasting a large Chinese diaspora, but their policies towards homosexuality are vastly different.Whereas Singapore has strict laws against homosexuality,Taiwan is seen comparatively as an Asian gay Mecca;in 2007,the Mayor of Taipei publicly called homosexuality 'a natural phenomenon'.34 While gays have not yet been extended full marriage rights,they are seen as an important interest group in Taiwanese politics,even attracting the attention of politicians before elections to secure votes.The country's LGBT movement is so vibrant that social organisations have pressured other countries to improve their gay rights record:activists recently protested against anti-gay laws in Nicaragua in front of the country's attache in Taipei.35 Since Confucianism does not necessarily determine attitudes toward homosexu- ality,we could broaden the scope of inquiry to tradition,in general.In China, many traditional practices have been eroded as the result of economic development and sometimes by government design.D'Emilio has argued that capitalism,more generally,gives citizens the opportunity to no longer be tied to traditional expectations of procreation.36 In China,economic growth in the coastal regions has led to increased individual mass migration from the hinterland,leaving families either temporarily,or permanently,transient and atomised.Moreover,through a strict family planning policy,Chinese families have been made artificially small and the distribution of sexes is now skewed towards males.When it comes to policies that conflict with traditional values in China,none of them would violate Confucian ideals of family more than the 'one-child policy'.Yet,in this case other government concerns overrode cultural injunctions.37 Although many Chinese cultural traditions have eroded over the last century, society will not necessarily be willing to accept a drastic modification to marriage. After all,even among some social liberals in the US,there is reluctance to accept same-sex marriage in name.However,in China,marriage is not as institutionalised and church-sanctioned as it is in the West and cultural injunctions against non-marriage are diminishing.3s The state-run news agency published highlights from a Beijing Normal University survey of nearly two million citizens that found only three per cent of respondents were opposed to unmarried cohabitation;the vast majority of respondents reported that they would be willing or are already in such a living arrangement(51 per cent)or would not cohabitat without marrying 34 Voice of America (27 September 2008) 35 Taipei Times (14 September 2007). 36 John D'Emilio,Capitalism and Gay Identity',in Snitow,Stansell Thompson (eds).Powers of Desire:The Politics of Sexuality (New York:The Monthly Review Press,(1983). 7 Throughout modern Chinese history,tradition has been dismantled to further state goals:Old Confucian traditions were attacked during the Great Proletarian Revolution in 1949 while other remnants where eradicated during subsequent volatile government-sponsored campaigns,such as the Anti-Rightist Campaign,Great Leap Forward and Cultural Revolution. 38 For a far more detailed exploration of marriage law in China see Michael Palmer,The Re-Emergence of Family Law in Post-Mao China:Marriage,Divorce and Reproduction',The China Quarterly,141(1995),pp.110-34
According to this related counter-argument, China’s Confucian roots, which emphasise traditional conceptions of family, are too deeply inculcated into society to approve of government-sanctioned same-sex marriage. To evaluate the veracity of this cultural argument, it is instructive to compare attitudes towards homosexuality in two other countries with Confucian backgrounds: Taiwan and Singapore share similar culture traditions, each boasting a large Chinese diaspora, but their policies towards homosexuality are vastly different. Whereas Singapore has strict laws against homosexuality, Taiwan is seen comparatively as an Asian gay Mecca; in 2007, the Mayor of Taipei publicly called homosexuality ‘a natural phenomenon’.34 While gays have not yet been extended full marriage rights, they are seen as an important interest group in Taiwanese politics, even attracting the attention of politicians before elections to secure votes. The country’s LGBT movement is so vibrant that social organisations have pressured other countries to improve their gay rights record: activists recently protested against anti-gay laws in Nicaragua in front of the country’s attaché in Taipei.35 Since Confucianism does not necessarily determine attitudes toward homosexuality, we could broaden the scope of inquiry to tradition, in general. In China, many traditional practices have been eroded as the result of economic development and sometimes by government design. D’Emilio has argued that capitalism, more generally, gives citizens the opportunity to no longer be tied to traditional expectations of procreation.36 In China, economic growth in the coastal regions has led to increased individual mass migration from the hinterland, leaving families either temporarily, or permanently, transient and atomised. Moreover, through a strict family planning policy, Chinese families have been made artificially small and the distribution of sexes is now skewed towards males. When it comes to policies that conflict with traditional values in China, none of them would violate Confucian ideals of family more than the ‘one-child policy’. Yet, in this case other government concerns overrode cultural injunctions.37 Although many Chinese cultural traditions have eroded over the last century, society will not necessarily be willing to accept a drastic modification to marriage. After all, even among some social liberals in the US, there is reluctance to accept same-sex marriage in name. However, in China, marriage is not as institutionalised and church-sanctioned as it is in the West and cultural injunctions against non-marriage are diminishing.38 The state-run news agency published highlights from a Beijing Normal University survey of nearly two million citizens that found only three per cent of respondents were opposed to unmarried cohabitation; the vast majority of respondents reported that they would be willing or are already in such a living arrangement (51 per cent) or would not cohabitat without marrying 34 Voice of America (27 September 2008). 35 Taipei Times (14 September 2007). 36 John D’Emilio, ‘Capitalism and Gay Identity’, in Snitow, Stansell & Thompson (eds), Powers of Desire: The Politics of Sexuality (New York: The Monthly Review Press, (1983). 37 Throughout modern Chinese history, tradition has been dismantled to further state goals: Old Confucian traditions were attacked during the Great Proletarian Revolution in 1949 while other remnants where eradicated during subsequent volatile government-sponsored campaigns, such as the Anti-Rightist Campaign, Great Leap Forward and Cultural Revolution. 38 For a far more detailed exploration of marriage law in China see Michael Palmer, ‘The Re-Emergence of Family Law in Post-Mao China: Marriage, Divorce and Reproduction’, The China Quarterly, 141 (1995), pp. 110–34. 1320 Timothy Hildebrandt
Same-sex marriage in China? 1321 but see no problem with others doing so(46 per cent).39 China's divorce rate is also increasing.In 2007,the number of divorces grew 18.2 per cent to 1.4 million couples.The rise is attributed to the lack of stability of marriage due to increased migration and,perhaps more importantly,a 2003 policy that streamlined the process of divorce and dropped the fee to 10 yuan,less than two US dollars.40 Palmer notes that marriage laws have been continually modified since the founding of the PRC in order to accommodate for reforms like the one-child policy.41 That is to say,marriage has long been used by the state as an instrument for other purposes. Having explored attitudes toward marriage in general,I now examine positions on homosexuality.While homosexuality has not entered the realm of 'normalcy'in Asia,the establishment of gay rights,including marriage,is not unforeseeable from a cultural perspective.Altman argues that the destruction of old practices increases public acceptance of homosexuality.In other Asian polities,traditional means of regulating sexuality have declined alongside the collapse of arranged marriages in the region.42 In China,employment opportunities in large cities have given those who might feel uncomfortable in the traditional world where they grew up (for example,smaller cities and rural areas)a way out.While anti-gay discrimination still exists,there is no strong injunction against homosexuality similar to that in more religious societies.In fact,homosexuality has been sporadically tolerated throughout China,43 and there is evidence of same-sex marriages among women in Southern China in the nineteenth century.44 On the whole,homosexuality is not actively suppressed or persecuted in China It is more accurately characterised as 'obscured'.45 Gay and lesbian activists speak of three dominant attitudes towards homosexuality:ignorance (the most prevalent attitude,particularly in countryside,where homosexuals are often assumed to not exist in China),ambivalence (more common in cities where citizens know that homosexuals exist but do not pay much attention to them,expressing neither support nor condemnation),and support (the rarest attitude,but growing among young Chinese in the most developed cities in China). Li Yinhe,the sociologist leading the charge for a same-sex marriage law in China,recently conducted a telephone survey of 400 people in large and small cities throughout China.46 The survey revealed conflicting attitudes towards gays and lesbians.While only 7.5 per cent of respondents reported that they knew a homosexual,twenty per cent of respondents saw nothing wrong with homosexu- ality,40 per cent found it completely wrong,and 30 per cent were somewhere in between.Sixty per cent of respondents said that they would be friends with a 39 Xinhua (5 September 2007). 40 Ibid.(25 January 2008). 41 Palmer,Re-Emergence'. 42 Dennis Altman,Sexuality and Globalization'.Sexuality Research Social Policy,1:1 (2004). Pp.63-8. 43 M.P.Lau and M.L.Ng.Homosexuality in Chinese Culture',Culture,Medicine Psychiatry.13 ,(1989),pp.465-88. 44 Nancy D.Polikoff,We Will Get What We Ask For:Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage",Virginia Law Review,79 (1993),Pp.1535-50. 45 K.Zhang and E.J.Beck.Changing Sexual Attitutes and Behaviour in China',AIDS Care,11:5 (1999),pp.581-9. 46(http://blog.sina.com/cn/s/blog_473d533601009vfr.html)accessed 10 July 2008
but see no problem with others doing so (46 per cent).39 China’s divorce rate is also increasing. In 2007, the number of divorces grew 18.2 per cent to 1.4 million couples. The rise is attributed to the lack of stability of marriage due to increased migration and, perhaps more importantly, a 2003 policy that streamlined the process of divorce and dropped the fee to 10 yuan, less than two US dollars.40 Palmer notes that marriage laws have been continually modified since the founding of the PRC in order to accommodate for reforms like the one-child policy.41 That is to say, marriage has long been used by the state as an instrument for other purposes. Having explored attitudes toward marriage in general, I now examine positions on homosexuality. While homosexuality has not entered the realm of ‘normalcy’ in Asia, the establishment of gay rights, including marriage, is not unforeseeable from a cultural perspective. Altman argues that the destruction of old practices increases public acceptance of homosexuality. In other Asian polities, traditional means of regulating sexuality have declined alongside the collapse of arranged marriages in the region.42 In China, employment opportunities in large cities have given those who might feel uncomfortable in the traditional world where they grew up (for example, smaller cities and rural areas) a way out. While anti-gay discrimination still exists, there is no strong injunction against homosexuality similar to that in more religious societies. In fact, homosexuality has been sporadically tolerated throughout China,43 and there is evidence of same-sex marriages among women in Southern China in the nineteenth century.44 On the whole, homosexuality is not actively suppressed or persecuted in China. It is more accurately characterised as ‘obscured’.45 Gay and lesbian activists speak of three dominant attitudes towards homosexuality: ignorance (the most prevalent attitude, particularly in countryside, where homosexuals are often assumed to not exist in China), ambivalence (more common in cities where citizens know that homosexuals exist but do not pay much attention to them, expressing neither support nor condemnation), and support (the rarest attitude, but growing among young Chinese in the most developed cities in China). Li Yinhe, the sociologist leading the charge for a same-sex marriage law in China, recently conducted a telephone survey of 400 people in large and small cities throughout China.46 The survey revealed conflicting attitudes towards gays and lesbians. While only 7.5 per cent of respondents reported that they knew a homosexual, twenty per cent of respondents saw nothing wrong with homosexuality, 40 per cent found it completely wrong, and 30 per cent were somewhere in between. Sixty per cent of respondents said that they would be friends with a 39 Xinhua (5 September 2007). 40 Ibid. (25 January 2008). 41 Palmer, ‘Re-Emergence’. 42 Dennis Altman, ‘Sexuality and Globalization’, Sexuality Research & Social Policy, 1:1 (2004), pp. 63–8. 43 M. P. Lau and M. L. Ng, ‘Homosexuality in Chinese Culture’, Culture, Medicine & Psychiatry, 13 (1989), pp. 465–88. 44 Nancy D. Polikoff, ‘We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender in Every Marriage”’, Virginia Law Review, 79 (1993), pp. 1535–50. 45 K. Zhang and E. J. Beck, ‘Changing Sexual Attitutes and Behaviour in China’, AIDS Care, 11:5 (1999), pp. 581–9. 46 {http://blog.sina.com/cn/s/blog_473d533601009vfr.html} accessed 10 July 2008. Same-sex marriage in China? 1321
1322 Timothy Hildebrandt homosexual,whereas 30 said they would not.When asked a hypothetical question about a family member 'coming out'as gay,10 per cent said they would totally accept them,the same proportion that reported they would totally reject them, while the vast majority fell in the 'tolerate'but 'hope they change'camp.47 Asked about same-sex marriage,70 per cent of respondents were against it,whereas 30 per cent were for it.But on other human rights,respondents were far more supportive of LGBT citizens.Ninety per cent believed they should have equal employment rights and the vast majority (80 per cent)think they are 'equal humans'.These results have led Li to conclude that the situation for homosexual men and women in China is not as gloomy as some would assume.48 Because opposite-sex marriage holds little resonance within society,same-sex marriage might not be seen as a large cultural threat.Moreover,since it would affect so few people,this policy would be even less threatening.When groups are seen as attempting to change the lives of individuals rather than society at large, there is reason to expect less hostility toward them than those groups trying to affect much broader change.49A prominent gay leader reported that when gays and lesbians talk about human rights the government does not see it as sensitive because the population is perceived to be so small in China.so Moreover,the effect of this group mobilisation is not as intimidating to the government.It is for this reason that gay and lesbian organisations,and activists like Li Yinhe,can lobby for same-sex marriage openly with little or no government interference. 'The regime is too closed The brief comparison of Taiwan and Singapore above showed that cultural similarities do not alone explain a country's policies toward homosexuality Another obvious difference between the two countries might have more explana- tory power:regime type.Perhaps Singapore has a more discriminatory policy toward homosexuality because the state is authoritarian.s Taiwan,on the other hand,is a fledging democracy and therefore might be more open to broader 47 Attitudes among younger Chinese are arguably more progressive than the general public.Studies conducted in other Asian countries that share cultural traditions support this assumption:in a 2007 study of 300 junior-and high-school students in Vietnam,80 per cent of respondents said they did not believe homosexuality was 'bad':only two per cent reported that they viewed homosexuals with 'contempt'(HCMC University of Pedagogy). 48 The prevalence of 'tolerance'or 'ambivalence'toward homosexuals(and widespread acceptance of co-habitation)might be representative of a traditionally more fluid spectrum of socially acceptable behaviour (for example,see Brett Hinsch,Passions of the Cut Sleeve:The male homosexual tradition in China(Berkeley:University of California Press,(1992)or,contemporarily,more open attitudes on sexual behaviour.Both of these should be distinguished from homosexuality as a 'social identity which,excepting the small openly gay population in China,has not yet developed in China as it has in the West.This lack of a widely respected gay social identity might also help explain why there has been no large domestic push for same-sex marriage or other gay-related rights.At the same time, it should not serve as a significant barrier in the way of a government-led move toward such a policy.I am grateful to an anonymous reviewer for making this point. Mayer N.Zald and Robert Ash.Social Movement Organizations:Growth.Decay and Change'. Social Forces,44:3 (1966),pp.327-41. s0 LGBT activist interview,Kunming,China (13 August 2007). si An additional explanation for this variation might be due to colonial legacies.Anti-gay legislations can be traced back to the period of colonisation of the city-state by the British;as explained in
homosexual, whereas 30 said they would not. When asked a hypothetical question about a family member ‘coming out’ as gay, 10 per cent said they would totally accept them, the same proportion that reported they would totally reject them, while the vast majority fell in the ‘tolerate’ but ‘hope they change’ camp.47 Asked about same-sex marriage, 70 per cent of respondents were against it, whereas 30 per cent were for it. But on other human rights, respondents were far more supportive of LGBT citizens. Ninety per cent believed they should have equal employment rights and the vast majority (80 per cent) think they are ‘equal humans’. These results have led Li to conclude that the situation for homosexual men and women in China is not as gloomy as some would assume.48 Because opposite-sex marriage holds little resonance within society, same-sex marriage might not be seen as a large cultural threat. Moreover, since it would affect so few people, this policy would be even less threatening. When groups are seen as attempting to change the lives of individuals rather than society at large, there is reason to expect less hostility toward them than those groups trying to affect much broader change.49 A prominent gay leader reported that when gays and lesbians talk about human rights the government does not see it as sensitive because the population is perceived to be so small in China.50 Moreover, the effect of this group mobilisation is not as intimidating to the government. It is for this reason that gay and lesbian organisations, and activists like Li Yinhe, can lobby for same-sex marriage openly with little or no government interference. ‘The regime is too closed’ The brief comparison of Taiwan and Singapore above showed that cultural similarities do not alone explain a country’s policies toward homosexuality. Another obvious difference between the two countries might have more explanatory power: regime type. Perhaps Singapore has a more discriminatory policy toward homosexuality because the state is authoritarian.51 Taiwan, on the other hand, is a fledging democracy and therefore might be more open to broader 47 Attitudes among younger Chinese are arguably more progressive than the general public. Studies conducted in other Asian countries that share cultural traditions support this assumption: in a 2007 study of 300 junior- and high-school students in Vietnam, 80 per cent of respondents said they did not believe homosexuality was ‘bad’; only two per cent reported that they viewed homosexuals with ‘contempt’ (HCMC University of Pedagogy). 48 The prevalence of ‘tolerance’ or ‘ambivalence’ toward homosexuals (and widespread acceptance of co-habitation) might be representative of a traditionally more fluid spectrum of socially acceptable behaviour (for example, see Brett Hinsch, Passions of the Cut Sleeve: The male homosexual tradition in China (Berkeley: University of California Press, (1992) or, contemporarily, more open attitudes on sexual behaviour. Both of these should be distinguished from homosexuality as a ‘social identity’ which, excepting the small openly gay population in China, has not yet developed in China as it has in the West. This lack of a widely respected gay social identity might also help explain why there has been no large domestic push for same-sex marriage or other gay-related rights. At the same time, it should not serve as a significant barrier in the way of a government-led move toward such a policy. I am grateful to an anonymous reviewer for making this point. 49 Mayer N. Zald and Robert Ash, ‘Social Movement Organizations: Growth, Decay and Change’, Social Forces, 44:3 (1966), pp. 327–41. 50 LGBT activist interview, Kunming, China (13 August 2007). 51 An additional explanation for this variation might be due to colonial legacies. Anti-gay legislations can be traced back to the period of colonisation of the city-state by the British; as explained in 1322 Timothy Hildebrandt