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By Elizabeth M. Lynch, January 20, 2016

Will these fake gay marriages in China become real?

For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.

Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not.

In China, A Court “Accepting” Your Complaint is Not Given

In the United States, filing a court case is exclusively a technical affair. You bring your summons, complaint and filing fee to the court’s clerk office. The clerk, almost always a non-lawyer, might examine the papers to ensure you signed the summons and the complaint, that you brought enough copies and that the check is the right amount, but as long as your ducks are in a row paper-wise, the clerk will accept your case, give it an index number and then spin the wheel to assign a judge. Your case is now in the system and will be heard by a judge. All substantive and procedural arguments – that your claims are bogus, that you sued the wrong person, that you are outside the time frame to file the suit or that you don’t have enough evidence – will be raised by the other side, through a motion and hearing before the trial judge.

Let’s file a case!

But since the early 1990s, China has been different from the U.S. (see Nanping Liu & Michelle Liu, Justice without Judges: The Case Filing Division in the PRC (2011). Under China’s Civil Procedure Law (which governs cases between two private entities) and China’s Administrative Procedure Law (which governs lawsuits brought against a government agency or actor), filing a case, even if your papers are technically proper, is insufficient to get it in the court system. Instead, the Case Filing Division (立案庭), staffed by judges, would examine some of the substantive and procedural aspects of your case – does the plaintiff have an interest in the matter, is there a specific defendant, are there specific facts, claims and causes of action and is the case brought in proper court, geographically (Civil Procedure Law, Art. 108; Administrative Procedure Law, Art. 41). All of these issues, which in the United States would be raised in a motion to dismiss, would be determined by the judges in the Case Filing Division, behind closed doors and generally with no argument from either side. If the Case Filing Division rejects your case, it does so with a mere cite to the law and with little to no explanation.

It was this lack of transparency that proved problematic in more politically-charged cases. With a Party-controlled legal system, the Party was able to use the Case Filing Division to reject cases (or just have them sit there without ever issuing a decision) so as to ensure that certain issues would never have a public airing by reaching a courtroom. While some experts estimate that only 1 to 2% of cases are rejected by the Case Filing Division, in a country the size of China, that amounts to tens of thousands of cases a year. So for a more controversial case to make it through the Case Filing Division, that was a good sign.

Recent Changes to the Case Filing System

Coat of arms for the Supreme People’s Court

But starting in May 2015, that calculus may no longer apply. Likely sensing that denying access to the courts is not the best way to raise the people’s confidence in their court system, in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.

Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).

It’s under these new regulations that China’s first gay marriage case was accepted by the Furong district court in the city of Changsha in central China. According to a press release from the Chinese non-profit, Yirenping[1], plaintiff Sun Wenlin (pronounced Swen When-leen) sought to bring a complaint against Furong District’s Civil Affairs Bureau which, in June, denied his and his boyfriend’s application for a marriage certificate. After facing difficulty finding a lawyer to take his case, Sun finally found one, the noted civil rights lawyer Shi Fulong (pronounced Shi Foo-lung). On December 16, 2015 Shi attempted to file his client’s complaint. Although not accepted on the spot, after amending it at the suggestion of the Case Filing Division to add his boyfriend as co-plaintiff, on January 5, 2016, Furong court accepted Sun’s lawsuit. A decision must be rendered within six months.

Case Accepted, But Far From Won – Civil Rights Lawyer Shi Fulong Criticized

Lawyer Shi Fulong

Since Sun’s case was accepted, the Chinese state-run media has openly – and often positively – covered this milestone. Not the usual M.O. for a politically-charged case against a government agency. But does this mean that China is ready to permit gay marriage?

Highly unlikely. For the Chinese state-run press, the positive focus has been the success of the new case filing system; that even a case that seeks to permit gay marriage is now accepted by the courts. And for sure, that is something that should be celebrated.

But more recently, in questioning the ethics of attorney Shi Fulong in taking the case, the Chinese press has signaled that the case will not be won. Given the current climate, namely the wholesale detention, arrest and suppression of China’s civil rights lawyers, the fact that there was still a lawyer to take this politically-charged case is shocking. But Shi Fulong is not one to avoid hard cases. Shi has represented Falun Gong practitioners, people fighting the illegal taking of their land, and in July 2015, during the mass detention and disappearance of hundreds of civil rights lawyers, signed a petition calling for their release.

It’s within this current crackdown that Shi bravely agreed to represent the gay couple. But that has not been without its potential cost. Last week, China’s state-run Legal Daily criticized him for continuing to represent his clients. In an op-ed by Hao Tiechuan, a Party member, former government official and law professor, the Legal Daily cites to various provisions of China’s Constitution and the Marriage Law to argue that, contrary to the complaint’s statements, the law is clear that marriage is only between a man and a woman. But unfortunately for lawyer Shi Fulong, the op-ed does not leave the case alone on its legal merits. Rather, it attacks the professional ethics of Shi in taking the case and continuing to represent the parties. The editorial argues that Shi has disrespected the law and filed a baseless lawsuit, all in violation of China’s Lawyers Law. Violations of the Lawyers Law could lead to a monetary fine and suspension or disbarment.

While alarming, on some level Shi Fulong is lucky that the op-ed does not cite more although he is certainly bordering on the danger zone. Likely in an attempt to contain China’s civil rights lawyers, in the past couple of years, the Chinese’s government has sought to penalize and contain the zealous advocacy that is required of lawyers, especially civil rights lawyers. In the Supreme People’s Court’s (SPC) recent Court Reform Plan, issued in February 2015, the SPC makes it a point to penalize what it considers false lawsuits. Paragraph 58 specifically commands the SPC to “[e]stablish record and discipline systems for good faith litigation. Punish false lawsuits, malicious lawsuits and unreasonably entangling litigation acts in accordance with law. . . .”

But what the SPC aspires to contain, recent amendments to the Criminal Law criminalizes. Effective November 1, 2015, China’s Criminal Law, Article 307(1), now provides up to a three year prison term for “[t]hose raising a civil lawsuit on concocted facts and seriously obstructing judicial order or seriously infringing on the lawful rights and interests of others. . . .”

For both of these admonitions, “false litigation” and “lawsuits on concocted facts” are left undefined. Meaning it will be in the discretion of the court – or more realistically the Chinese government and Communist Party – to determine what these terms mean. Which indicates that there will be a certain political determination involved.

What would Thurgood Marshall say about what is happening in China?

But as a civil rights lawyer, Shi Fulong’s job is to challenge the current law and push it to its limits. It was this type of lawyering that in 2003, caused China to eliminate the archaic and unjust custody and repatriation system. In the words of civil rights attorney and U.S. Supreme Court justice Thurgood Marshall, civil rights lawyers should “do what you thinks is right and let the law catch up.” Here though, by citing to the Lawyers Law and questioning Shi’s ethics in pursing this case, the state-run media seeks to further squash any hope that China’s civil rights lawyers can independently push Chinese society – or more apt, the Chinese government – forward. But I guess we have to remember that the world in which this was possible in China – namely 2000 to 2005 – has long since died. Fortunately for the Chinese people, there are still lawyers willing to wage this battle. And hopefully for Shi, the Legal Daily op-ed is as bad as it gets.

[1] Yirenping’s press release is on file with China Law & Policy.

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By Elizabeth M. Lynch, November 15, 2012

Meg Davis, Executive Director of Asia Catalyst Introduces the Speakers
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Last week, the day after the United States elected its first openly gay Senator and more states extended the right to marry to gay couples, Asia Catalyst and Fordham Law School’s Leitner Center co-hosted a fascinating talk about Lesbian, Gay, Bisexual and Transgender (LGBT) rights in China entitled “China’s Comrades.”

Featuring two on the ground LGBT activists – Sam Zhao (co-founder of China’s only lesbian magazine) and Dan Zhou (a Shanghai lawyer who has taken on some hard-hitting LGBT rights cases) – and John Balzano, a law professor and China expert who provided a more macro view of the movement, the talk broke down some common assumptions about China and the development of individual rights.

Zhou started his talk stating that this discussion was a “queer event” – although talks about Chinese legal development are common, Zhou noted that rarely if ever do these talks discuss LGBT rights development.  But while true, what was perhaps most queer about the talk was learning of the Chinese government’s response to the LGBT rights movement.  Usually the narrative at many of these rights development talks are the same – an authoritarian government trampling over individual rights, fearful that its monopoly on power will be destroyed by such nascent rights movements.

But for LGBT rights, the story seems to be different.  Zhao made a joke about how in

Sam Zhao, speaking at “China’s Comrades”
Photo by Robert Burnett, Jr.
www.rburnettjr.com

1996, a friend called her, excitedly telling her to return to Beijing because there was going to be a “big” lesbian party – eight lesbians were getting together.  Fast forward a little over a decade and in 2008, Zhao helped organize a two-day lesbian independent film festival where 600 lesbians attended.

What was interesting about Zhao’s story was the fact that the Chinese government even allowed the film festival, and not because it necessarily has an anti-gay bias.  Usually, when movements get too large, the Chinese government sees the movement – be it LGBT rights activists organizing a film festival, rural villagers decrying the taking of their lands, or factory workers protesting inhuman working conditions – as an alternative source of power and threat to its rule – events are broken up and email listserves are shut down.

But both Zhao and Zhou discussed the success they have had in creating an LGBT community throughout China, with much of this success a result of the internet.  Even Balzano noted that while it is true that when movements in China get too large, too overt or too public, the government seeks to crack down, the LGBT movement thus far has not faced the same kinds of pressure.

Audience listens during China’s Comrades
Photo by Robert Burnett, Jr.
www.rburnettjr.com

Zhou did point out that the LGBT rights movement is not completely immune.  In 2012, some LGBT rights bloggers held a successful conference in a southern city that many activists attended.  When they tried to re-create the event in Beijing, the government put a stop to it.  But according to Zhao, when the activists asked the Beijing government if the reason was because the event was about LGBT rights, the government said no.  According to the authorities, the basis for denying the activists their conference was because it bordered upon a “mass incident” which the law forbids.

But not everything is rosy for LGBT individuals in China.  While Balzano remarked that there is no law in China that is overtly discriminatory toward the community, the law is still used at times to harass LGBT individuals.  Zhao confirmed this, noting the difficulty in obtaining the proper government approvals for her lesbian film festival because many officials equated lesbian film with pornography.

Zhou also commented that while there is no law that governs sexual relations in a

Photo by Robert Burnett, Jr.
www.rburnettjr.com

private place, what is still up for debate, at least with some government officials and courts, is what is private.  There have been cases where a hotel room is considered public or a bedroom in an apartment that serves as a business office during the day.  Zhou also discussed the prosecution of one of his clients – a gay D.J. who was part of a party in a gay nightclub.  He was taken in for “lewd” behavior.

Finally, although only briefly touched upon in the talk but much more fully fleshed out in the readings that Asia Catalyst and the Leitner Center diligently selected (see “Resources” list below) is the societal pressure that all Chinese face but is more acute in the LGBT community – parental pressure for a heterosexual marriage and a grandchild.  All of the reading went into depth on this issue, noting that traditionally in China, homosexual conduct has been tolerated so long as that behavior is more “on the side” of a heterosexual marriage that produces children (in this regard, Balzano’s article made an important distinction between traditional acceptance of homosexual behavior and not necessarily homosexual identity).  This pressure and to some degree behavior is still very much present in the LGBT community in China (the Kam article interviewed a number of Shanghai lesbians to ascertain how they deal with the heterosexual marriage issue).

Photo by Robert Burnett, Jr.
www.rburnettjr.com

Although China’s LGBT community is still in greater need of protection, especially since vague laws are arbitrarily used to harass some individuals, its movement appears to be on more solid footing than other rights groups.  By the end of the talk, Zhou’s initial remark – that it is queer that discussions of LGBT rights rarely happen – made one wonder, why isn’t Western China watchers especially those who focus on and seek to promote civil society development, examining China’s LGBT movement more.  The LGBT rights movement is an outlier in the normal course of civil society development in China.  What is it that allows it right now to be a bit more immune to traditional government pressure?  And is there anything other movements can learn from the LGBT rights movement?  China’s Comrades proved that more a deeper understanding of the LGBT movement are necessary.

Resources:

John C. Balzano, Toward a Gay-Friendly China?  Legal Implications of Transition for Gays and Lesbians, 16 Tul. J. L. & Sexuality (2007).

Lucetta Kam, Opening up Marriage: Married Lalas in Shanghai, in As Normal as Possible: Negotiating Sexuality and Gender in Mainland China and Hong Kong (Yau China ed., 2010; Hong Kong University Press).

Holning Lau, Grounding Conversations on Sexuality and Asian Law, 44 U.C. Davis L. Rev. 773 (2011).

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If you are interested in learning more about Asia Catalyst, its events or how you can support this on-the-ground organization, please visit its website here.  For its Fifth Anniversary Campaign, Asia Catalyst’s Board of Directors has generously offered to match all individual gifts donated in 2012 (up to $8,000).  All donations are tax deductible.