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By Elizabeth M. Lynch, July 5, 2017

Courtesy of Asian Journal

Last week, a local court in Henan, China held that the involuntary commitment of a gay man in a state-run mental hospital was a violation of China’s Mental Health Law.[1]  The court required the hospital to make a public apology and to compensate the man 5,000 yuan (approximately $735)  for his mental anguish.  Across China, and in much of the West, civil rights groups have hailed this decision as historic; a victory against forced gay conversion therapy; a step forward for LGBT rights in China.

But is it?  The very fact that the court decided to hear the case – let alone find in the victim’s favor – is significant.  In China, to get to a trial date, you have to first make it past the Case Filing Division (立案庭), a department within the court system, staffed by judges, that examines, behind closed doors, the papers to see if the case should move forward. More politically-charged cases are often rejected by the Case Filing Division and thus, never make it to court.  But here, this case – a politically-charged case where the plaintiff claimed that he was involuntarily committed because of a diagnosis of “sexual orientation disorder” –  was accepted by the local Case Filing Division and thus, was considered important enough to be heard.  And the fact that a court held against a government-run hospital is a pretty big deal.

Courtesy of LGBTQ Nation

But the Court’s decision is not the sweeping condemnation of forced gay conversion therapy that the headlines make it out to be.  If anything, it shows the weakness of China’s Mental Health Law and the fact that involuntary commitment is still too easy a task with little to no immediate safe guards.

The Court’s Decision Does Not Mention Gay Conversion Therapy

Although the plaintiff raised the issue that he was being involuntarily committed for what he claimed the hospital diagnosis as a “sexual orientation disorder”, those are not the facts as the Court saw it.  Instead, the Court noted that the plaintiff was involuntarily committed for an anxiety disorder, never mentioning the plaintiff’s sexuality.  Further, its decision in favor of the plaintiff had nothing to do with the efficacy, morality or legality of gay conversion therapy.

Instead, the Court focused on Article 30 of China’s Mental Health Law, the provision that limits involuntary commitment to cases where the patient is in danger of harming himself or harming others.  Here, the Court noted the hospital’s written diagnosis which stated that while the plaintiff had suicidal thoughts, he was not going to act on those thoughts.  It was this act – the commitment of the plaintiff when he was not a threat to himself or others and in clear violation of Article 30 – that the Court admonished, not that the plaintiff was forced to undergo a mental health treatment to “cure” his homosexuality.

Under the Mental Health Law, Involuntary Commitment is Still Too Easy & Will Continue to Unlawfully Occur

If anything, this case lays bare the weaknesses of China’s Mental Health Law.  Enacted five years ago, the Law was seen as stopping the involuntary commitment of individuals who did not have a mental disorder, or if they did, not one that needed commitment.  In China, involuntary commitment was all too easy of a way for the police to deal with and silence political dissidents or anyone they considered to be “trouble.”  And initial drafts of the Law continued to permit involuntary commitment  if the individual’s behavior was deemed to be “disturbing public order” or “endangering public safety.”  But, in a victory for mental health advocates, the final version did not  include that basis.  Instead, involuntary commitment was limited to where there is a real possibility of harm to self or others.

But what the Mental Health Law did not change is the deference that the law gives to family members.  Article 28 of the Mental Health Law still permits family members to involuntarily commit an individual that the family member suspects has a mental illness.

Here, after the plaintiff attempted to divorce his wife, she and the plaintiff’s brother brought him to the mental hospital and recommended commitment, as they unfortunately have a right to do under Article 28. As family members, they were immediately declared the plaintiff’s guardians and thus were able to sign the involuntary commitment documents.

And that is the other problem with the current Mental Health Law, the ease by which a guardian is appointed. While the Mental Health Law gives a tremendous amount of power to an individual’s guardian, it provides no method for how that guardian should be appointed.  Instead, it is necessary to look to the General Principles of Civil Law which discusses guardianship for individuals with mental illness.

Unfortunately, the General Principles does little to flesh out the appointment process.  Instead, it makes clear the level of abuse that can occur.   Article 13 of the General Principles requires the appointment of an agent ad litem (a guardian) for mentally ill individuals who are “unable to account for his own conduct.”  But the law does not flesh out what “account for his own conduct means.”  Some individuals with mental illness may still be able to lead a relatively normal life and just need help in certain aspects.  But the General Principles is much more black and white; much more all-or-nothing and do not allow for that gray area that provides for some independence for an individual with slight assistance from a guardian.

Additionally, the General Principles provides no formal or independent process by which a guardian is appointed.  Basically, if a person wants to be a family member’s guardian, she can just declare herself as such (Article 17 of the General Principles pretty much limits guardians to family members although there is a provision for a work unit member).  Based on the General Principles and what happened in the case here, the process for guardianship in China is not an appointment process but rather a declaration one.  And there is no court oversight of this declaration of guardianship. Hence the ability of a soon-to-be ex-wife to declare herself guardian and commitment her gay husband to mental institution in a society that isn’t always the friendliest to LGBT lifestyles.

Finally, although the Mental Health Law does permit the patient to contest his diagnosis and demand a second opinion (see Article 32), that evidently did not happen here.  The Court did note that the commitment was over plaintiff’s objections, but there is not mention if there was a second opinion of his diagnosis as should have happened when the patient contests.  And again, without immediate judicial oversight of the commitment process, an increasingly massive failure of the Mental Health Law, abuse of involuntary commitment will continue.  Here, the plaintiff was only able to escape  after he was able to call a friend who called the police and then the police intervened and freed the plaintiff.  But if he wasn’t able to make that phone call, it is unclear when he would have been released.

What this case shows more than anything is that involuntarily committing – especially a family member – is still too easy and, five years after the passage of the Mental Health Law, is still being to readily abused.

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[1] China Law & Policy was fortunate to review a copy of the four-page decision.  This post is based upon our review of that decision.

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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.