By Howell Ma
The legalization of gay marriage is being argued in China right now. It is has been discussed in the society for years, especially after the United States (“U.S.”) Supreme Court Obergefell ruling came out in 2015. Constantly, there are discussions regarding why it is so difficult for the People’s Republic of China (“PRC”) to recognize same-sex marriage while ancient China had relatively more tolerant policies towards same-sex relationships. This article argues the greatest challenge is not the constitutional grounds, but rather social hurdles: traditional Confucian culture, the government’s ignorance of the existence of lesbian, gay, bisexual and transgender (“LGBT”) people in China, and the general mass social views of homosexuality and same-sex marriage in China.
Part I of this article briefly introduces the long existence of homosexuality in China and the necessity of recognizing same-sex marriage in China. Part II examines whether the social conditions in China are ready to recognize same-sex marriage and suggests that a different strategy should be used: the People’s National Congress can craft an argument that same-sex marriage has large implications for securing social stability and integrated social interests and use a top-down policy-making method to legalize same-sex marriage. Such an argument would plausibly work because the past experience of implementing the One-Child Policy has proved that Chinese people would accept a law that serves social well-being, even if it is against their cultural beliefs.
I. The Long History of Homosexuality and Laws of the People’s Republic of China on Homosexuality
Homosexuality can be traced back to China’s ancient times. The Intrigues of the Warring States notes that Duke Xian of Jin, the nineteenth ruler of the State of Jin, set a honey trap for his rival ruler by planting a handsome young man in his rival’s court in order to give him bad advice. One emperor in the Han Dynasty, Emperor Ai, even attempted to pass the throne to his male lover, Dongxian. People in modern China refer to homosexuality as “passions of the cut sleeve,” based on the story of Emperor Ai and Dongxian.Although homosexuality has been documented in China for more than 2600 years, documentation of the laws regarding same-sex sexual activity is relatively scarce. History records of laws against purely homosexual acts in ancient China can only be found in the Ming Dynasty (1368-1644) and Qing Dynasty (1644-1912). The Qing Dynasty, the last imperial dynasty of China, prohibited same-sex intercourse by imposing punishments of a month in prison and 80 to 100 blows with heavy bamboo. This punishment was actually the lightest punishment that existed in the Qing legal system. Although there has been some tolerance of homosexual behavior in history prior to PRC, same-sex marriage has never been allowed in China.
LGBT people have faced more stringent legal regulations regarding their sexual orientation since the PRC was established in 1949. During the early days of the establishment of the new China, along with pre-marital sex, polygamy, prostitution, and celibacy, homosexual behavior was treated as “feudal thought” prohibited by the new government. Legal enforcement was random but not too harsh, until 1966 when the Cultural Revolution, a mass campaign of enormous dimensions that lasted 10 years, erupted in Mainland China. During the Cultural Revolution, all individual sexual preferences were considered filthy and immoral by mainstream society. Homosexuality was illegal and would be punished under the statutes for hooliganism. Homosexual intercourse was illegal until 1997, when the 1997 Criminal Law abolished “hooliganism”. In 2001, after five years of study by the Chinese Psychiatric Association, including following the daily lives of 51 Chinese gays and lesbians for one year, the Psychiatric Association removed homosexuality from its official list of mental illnesses. Since then, homosexuality in China has entered a new era of both discrimination and normalization.
It has been estimated that in the U.S. the proportion of adults who identify as LGBT varies from 2.2 percent to four percent, and the proportion of those aged eighteen to forty-four who identify as LGBT was lowest at 2.8 percent and highest at 5.6 percent. On the condition that the percentage of homosexuality in all human races stays the same, it seems logical to suggest that China has the largest LGBT population, since China has the largest population in today’s world. In 2004, The Ministry of Health in China estimated that at least two to four percent of males aged eighteen to forty-nine are homosexual, and approximately 1.35 percent of five to ten million male homosexuals were HIV-positive. Among those dozens of millions of gay men and women in China, eighty percent of them will get married because of the traditional Confucian values of filial piety and the pressure to have children.
This creates unsatisfying social arrangements for gay men, the women who gay men marry, lesbians, the men who lesbians marry, and the children these couples bear. Zhang Beichuan, a sexologist and gay rights supporter, estimates that in 2013 there were sixteen million “homowives” in China. “Homowives,” or “Tongqi,” refers to those who are heterosexual but trapped in loveless marriages to homosexual husbands. The family expectations to produce an heir have also created a similar group of people—“Tongfu,” referring to straight men who unwittingly marry lesbian women. A new trend where Chinese gay men and lesbian women make arrangements called “cooperation marriages” is also on the rise. Social tragedies like “Tongqi,”“Tongfu,” and cooperation marriages between gay men and lesbian women are collateral damage of the non-recognition of the existence of homosexuality.
II. The Social Views of Homosexuality and Same-Sex Marriage in China
Unlike in the U.S. where arguments in opposition to same-sex marriage are often made on religious grounds (the notion of homosexuality being a sin or immoral), there is no religious notion of homosexuality being a sin or immoral in China, because it is a country that is largely atheist. Buddhism often characterized as distrustful of sensual enjoyment and sexuality in general. Homosexuality is included equally as heterosexuality as a form of sexual misconduct.
The long-held belief in China that children must marry and continue the family line by bearing offspring probably constitutes one of the biggest obstacles to accepting homosexuality and recognizing same-sex marriage. This tradition has been bolstered by Confucian culture. Confucian thought, developed by Confucius, an ancient Chinese philosopher who lived in the Spring and Autumn Period, remains essentially unchanged today. It has been said that “Confucianism is not a religion but plays a religious role in Chinese culture and society.” While homosexuality was never mentioned by Confucius, the core parts of Confucian moral teaching are benevolence, obedience to rulers, and the importance of family values, coupled with filial duty and an extreme encouragement of heterosexual marriage, and carrying on the family line by bearing offspring.
The obligation dictated by Confucianism that sons and daughters must produce children has been exacerbated by China’s “One-Child Policy.” Implemented in 1979, the One-Child Policy required that couples from China’s ethnic Han majority have no more than one child. This upped the ante, intensifying pressure on only children to carry on family lines regardless of their sexual orientation. For example, a gay couple will, in the eyes of many Chinese parents, bring two family lines to an end at once. Although China has just ended the decades-long implementation of the One-Child Policy and is now allowing families to have two children, this will only lessen the burden to carry on family lines for future generations. Accordingly, since they are considered to not be able to carry on family lines in the eyes of many Chinese parents, it is hard for homosexual couples to get wide support from the society, especially from their parents. According to a survey by the Pew Research Center, only 21% of Chinese people were in favor of accepting homosexuality by 2013.
Legal scholars and gay rights activists have come up different approaches to legalize same-sex marriage in China. The prevalent approaches include legalizing same-sex marriage by adopting international treaties and recognizing same-sex civil unions as the first step towards recognizing same-sex marriage. These proposals can sort of get around the current social hurdles, but still have their own flaws.
As the social conditions are not quite ready, Chinese reformers can use the argument of integrated social interest to shape public opinion and encourage supportive public views towards same-sex marriage, and, based on the argument that gay marriage has large implications for social well-being and “harmony,” use a top-down policy-making method to legalize same-sex marriage. This approach would plausibly work in the current cultural environment, for the masses of China accept the idea of sacrificing individual rights to secure social interests. The history of the One-Child Policy’s implementation has proved the fact that Chinese citizens will accept a law that is against their cultural beliefs but serves social well-being.
The One-Child Policy most strictly applies to Han Chinese living in urban areas, with a few exceptions. As Han Chinese, the largest ethnic group in China, constitute approximately 92% of the population, the policy limits the majority of Chinese families to only one child. Chinese culture has long been influenced by Confucianism, and people believe that having lots of children can bring a family enormous fortune. Under Confucian culture, only the son can carry on the family name, family business, and receive an education. The cultural and social challenges once faced by the implementation of the One-Child Policy are arguably not any easier than the culture challenges that recognizing same-sex marriage would face. In fact, the One-Child Policy did encounter strong resistance from Chinese tradition; for example, some families refused to consider birth control until they had at least one boy. Despite cultural challenges and criticism of human rights violations from Western voices, a 2008 survey undertaken by the Pew Research Center reported that 76% of the Chinese population supported the policy. At the beginning of the 21st century, over 90% of all urban children and over 60% of rural children have no brothers or sisters.
What made traditional Chinese families accept the One-Child Policy? The One-Child Policy was introduced in 1979 by the Chinese government to curb the then-surging population and limit the demands for water and other resources, as well as to alleviate social, economic, and environmental problems in China. The government argued that it was necessary for Chinese families to sacrifice the possibility of having more than one child, or having a son, for the sake of future generations. Compared to the U.S., where the culture is considered more individualistic, the nation of China is defined as “a big family” by Chinese people, and the Chinese emphasize group goals over individual goals. The cultural belief that individuals should sacrifice themselves for collective interests helped to achieve the national implementation of the One-Child Policy. A generation of Chinese made a sacrifice for national development by bearing and raising only one child. Accordingly, China’s population control policies played an important role in setting the pace of economic growth for China, and have led to enormous gains in gender equality.
As an arguably non-democratic state, China can also base their argument on public interest promotion, using a top-down policy-making method to legalize same-sex marriage. Possible resistance from traditional Confucian culture would also likely be counteracted by the long belief that individuals should sacrifice themselves for collective interests. First, same-sex marriage legislation could be used strategically to improve China’s human rights reputation. The international community and international human rights protection organizations have long criticized China for its unsatisfying performance on human rights protection. The Chinese government, however, cares about its international image. Same-sex marriage is arguably a type of fundamental human right that the United Nations Human Rights Declaration intends to protect.
Secondly, legalizing same-sex marriage brings economic benefits. For example, married couples are more economically productive, fewer expensive social services would be spent on retired married couples because they can take care of each other in old age and illness, and same-sex marriage legislation would bring more jobs and boost the wedding ceremony businesses.  Third, marriage equality is important to enhancing public health and ending the HIV epidemic. A study of the impact of social tolerance levels toward gays in the United States on the HIV transmission rate suggests that a rise in tolerance for gays from the 1970s to the 1990s in the U.S. reduced HIV cases by one per 100,000 people, and that laws against same-sex marriage boosted cases by four per 100,000. Ignorance of the existence of LGBT people in China encourages feelings of marginalization, depression, and isolation among the LGBT community, especially gay youth. This increases activities like substance use and sexual risk-taking and leads to more cases of HIV. Recognizing same-sex marriage, on the other hand, can reduce the stigma that often prevents LGBT people from seeking out help to maintain their mental and physical health.
Fourth, same-sex marriage secures social stability. The institution of marriage is important not only to married people but also to people excluded from that institution and to society in general. Social phenomena like “Tongqi” and “Tongfu” will be gradually reduced if homosexuals are allowed to marry their same-sex lovers. Legalizing same-sex marriage encourages stable same-sex relationships. This also meets the “Harmonious Society” concept long promoted by the Chinese government. In this context, same-sex marriage could make practical sense as social policy, and the Chinese public would plausibly accept it. If the One-Child Policy could be implemented successfully because the Chinese emphasize group goals over individual goals, there is no reason that a top-down policy-making method based on integrated social interest promotion would not work in China.
 Bret Hinsch, Passions of the Cut Sleeve, 31 (Univ. of California Press 1990).
 Id. at 46.
 The tale of Emperor Ai and Dongxian struck later writers the most: the Emperor carefully cut off his sleeve, so as not to awake Dongxian, who had fallen asleep on top of it. See id.
 See supra note 1 and accompanying text.
 Meredith MacArdle, The Timeline History of China, 44, 67 (2008).
 Hinsch, supra note 1, at 31. See id. See also M.J. Meijer, Homosexual Offences in Ch’ing Law, 71 T’oung Pao, 109, 109 (1985).
 Dwight G. Duncan & Peter Lubin, Follow the Footnote, or the Advocates as Historian of Same-Sex Marriage, 47 Cath. Univ. L. Rev. 1271, 1307-08, 1310 (1998).
 The related records on the topic of sexual orientation can rarely be found. See Huo Mingqi & Liu Jingqiu, Geming Shidai de Tongxing Lian [Homosexuality in the Age of Revolution], Sohu, July 26, 2015, available at http://mt.sohu.com/20150726/n417545446.shtml (Last visited Oct. 17, 2015).
 Id. (Stating the enforcement of the anti-homosexual law was random. In 1958 a man was arrested by Public Security Bureau in Jiang Han for his homosexual behavior and ended up three days in detention. In 1962, Chen, a man in Sichuan was sentenced to 9 years in prison for sodomy.)
 Fang-fu Ruan & M.P. Lau, The International Encyclopedia of Sexuality: China, Homoerotic, Homosexual, and Ambisexual Behaviors, The Int’l Encyclopedia of Sexuality, available at http://www.sexarchive.info/IES/china.html (last visited Oct. 17, 2015). See also Elaine Jeffreys, Sex in China ch. 1(2015).
 See Guo Xiaofei, Zhongguo Youguo Tongxinglian de Feizuihua ma? [Was There an Existence of Decriminalization in China?] 04 Law and Social Development, 51, 54-57 (2007) CAJ (last visited Oct. 13, 2015) (PRC), available at http://www.cnki.com.cn/Article/CJFDTotal-SFAS200704008.htm.
 Associated Press, China decides homosexuality no longer mental illness, South China Morning Post, Mar. 8, 2001, available at http://www.hartford-hwp.com/archives/55/325.html (last visited Dec. 5, 2015). It’s worth to notice that the American Psychiatric Association removed homosexuality from its list of disorders in 1973, 28 years before China Psychiatric Association removed homosexuality from its official list of mental illness. See American Psychological Association, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM-II, 6th Printing, Doc. No. 730008, 44 (1973).
 Gary J. Gates, LGBT Demographics: Comparison Among Population-based Surveys, the Williams Institute, Sept. 2014, available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-demogs-sep-2014.pdf (last visited Nov. 1, 2015). This report uses four large, national, population-based surveys to consider the ways in which LGBT populations are demographically similar to or distinct from their non-LGBT counterparts in the United States. This report analyzed the following surveys: National Survey of Family Growth, 2006-2010 (“NSFG”); General Social Survey, 2008, 2010, 2012 (“GSS”); National Health Interview Survey, 2013 (“NHIS”) and Gallup Daily Tracking Survey, 2014 (“GDTS”).
 Xiong Jincai, Lun Tongxing Jiehe De Minfa Dianfan [Civil Law Model on Same-Sex Partnership] 2 Northern Legal Science, 23, 26 (2012) CAJ last visited Oct. 13, 2015) (PRC), available at http://www.cnki.com.cn/Article/CJFDTotal-BFFX201202006.htm.
 Richard Burger, Behind the Red Door: Sex in China 82 (2012).
 Richard Burger, China’s Homowives, The Huffington Post, Sept. 9, 2013, available at http://www.huffingtonpost.com/richard-burger/china-homowives_b_3574084.html (last visited Oct. 13, 2015).
 Id. See generally, Tang Kuiyu &Yu Hui, “Tongqi” “Tongfu” Hunyin Weichi yu Jieti de Bijiao—Yixiang Xuni Shehui Renleixue Yanjiu [The Comparison of “Tongqi” and “Tongfu”’s Marriage Maintenance and Dissolution—A Study of Virtual Social Anthropology] 06 Journal of Eastern Liaoning University(Social Sciences), 4 (2014) CAJ (last visited Oct. 13, 2015) (PRC), available at
 Tang Kuiyu, supra note 21, at 10.
 The China Family Panel Studies (CFPS) conducted by the Peking University of China in 2012 found an average 10% of the Chinese identifying themselves as religion-believer. See Lu Yunfeng, Dangdai Zhongguo Zongjiao Zhuangkuang Baogao—Jiyu CFPS (2012) Diaocha Shuju [Religion Report in Contemporary China—Based on the Chinese Family Panel Studies’s survey of 2012] 1 The World Religious Cultures Issue 11, 12 (2014) available at http://iwr.cass.cn/zjwh/201403/W020140303370398758556.pdf (last visited Nov. 1, 2015).
 See Edward L Shaughnessy, The Cambridge History of Ancient China: From the Origins of Civilization to 221 BC, 545-586 (1999) (stating that the Spring and Autumn period was the period in Chinese history from approximately 771 to 476 BC).
 See Geoffrey MacCormack, The Spirit of Traditional Chinese Law, 7-11 (1996).
 For example, it is more difficult for unmarried citizens to obtain housing or get promoted. See Teemu Ruskola, Note, Law, Sexual Morality, and Gender Equality in Qing and Communist China, 103 Yale L.J. 2531, 2560-61 (1994).
 See William Wan, Six Questions on China’s One-Child Policy, Answered, The Washington Post, (Nov. 15, 2013), https://www.washingtonpost.com/world/six-questions-on-chinas-one-child-policy-answered/2013/11/15/ad64af1c-4def-11e3-be6b-d3d28122e6d4_story.html?utm_term=.e8a2f2e49ca6; and Baron Laudermilk, China’s One-Child Policy: Urban and Rural Pressures, Anxieties, and Problems, World Report News, (Sep. 13, 2011), http://www.worldreportnews.com/far-and-south-east-asiaaustralia-archived/chinas-one-child-policy-urban-and-rural-pressures-anxieties-and-problems.
 Ansley J. Coale, Population Trends, Population Policy, and Population Studies in China 7(1) Population and Development Rev. 85, 134, 136 (1981). There are also a few exceptions to the general One-Child Policy rule: in the case of second marriage where at least one partner has not had a child; the first child has an abnormality or a condition which will reduce life expectancy; if the father is in a dangerous occupation, such as mining; where both spouses are only children.
 Wang Xing, supra note 18, at 270.
 Timothy Hildebrandt, Same-sex marriage in China? The strategic promulgation of a progressive policy and its impact on LGBT activism, 37 Rev.of Int’l Stud. 1313, 1326 (2011).
 Id. at 1317.
 Id. at 1319 (“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.”).
 Hugo Mialon, Andrew Francis & Handie Peng, The Effects of Same-Sex Marriage Lawson Public Health and Welfare, SSRN 28-42 (2009).
 Xiong Jincai, Tongxing Banlv Guanxi Falv Renke de Fajingjixue Fenxi [Law of Economic Analysis of Civil Partnership Legal Recognition] 05 J. of Henan Province Mgmt. Cadre Inst. of Pol. & L.173-174 (2008) CAJ (last visited Oct. 13, 2015) (PRC), available at http://www.pkulaw.cn/fulltext_form.aspx?Gid=1510098171.
 Xiong Jincai, supra note 42, at 173-174.
 Wang Xing, supra note 18, at 271.
Howell Ma is currently an associate at the New York office of WilmerHale LLP, where he advises clients on all aspects of corporate law. He also maintains an active pro bono practice focused on immigration. He holds a J.D. and a LL.M. from William & Mary School of Law (2016 and 2014), and a LL.B. from Shanghai University of Political Science & Law (2010). Howell was born and raised in China.