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Straightjacket: Same-Sex Orientation under Chinese Family Law

‘Visibility and secrecy are both valuable tactics and should not be antagonized in LGBT movements, ’ says Jingshu Zhu. Zhu will defend her dissertation on Wednesday 21 February. Time for a short interview with the PhD candidate.

Jingshu Zhu.
Jingshu Zhu

What was the reason to carry out research on the topic of your doctoral thesis?

‘I started this doctoral research five years ago to answer a puzzle of my own, which is also an urgent question facing a lot of unmarried Chinese people (straight and gay alike) in their 20s: How do we deal with society’s and our parents’ expectation for us to get married, have children and then secure elderly care, which may not be our own desired life path? As a lawyer, I also ask: What role does (family) law play in such expectations and the resistance thereof? And, how can the law be changed to better serve the needs of all relationships worth valuing, regardless of one’s sexual orientation or marital status?’

Can you explain what you have researched and how you did this?

‘Although the questions that prompted my PhD thesis are not specific to same-sex-attracted people, I chose to narrow down my research on them. This study gives a panorama of both the official laws and the informal social norms that influence these people’s family life. It discusses a wide range of issues, including de/criminalization (the change of the crime of hooliganism), de/pathologization (conversion therapy and the objection thereof), homosexual representations (such as trademarks and films), same-sex weddings, the distribution of communal property of same-sex cohabitants, custody in divorce cases, official and de facto adoption, fostering, in vitro fertilization conducted by lesbian couples, transnational surrogacy by gay couples, inheritance between same-sex partners, medical decisions in an emergency, same-sex marriage campaigning, old-age planning, coming out to parents, etc. It also documents how ordinary people, lawyers and activists change the law via legislative proposals, impact litigation and transnational linkage.

I carried out this research taking an interdisciplinary approach. Alongside detailed legal analysis, this thesis features vivid storytelling following eight months’ anthropological fieldwork. I  conducted semi-structured interviews and informal conversations with more than 60 respondents. The storytellers include same-sex couples of different generations, cooperatively married lesbians and gay men, “cheating” husbands and unwitting wives in mixed-orientation marriages, parents of lesbian and gay adult children, friendly lawyers, activists and so on. The thesis weaves ethnography into statutory laws and court decisions, giving the readers a comprehensive understanding of the actual experiences of Chinese same-sex-oriented persons with or without a lesbian, gay or bisexual identity.’

What are the most important conclusions and recommendations of the research?

‘Straightjacket offers an epistemology that avoids the binary of closeting and coming out. While acknowledging the uncomfortable restriction of the heteronormative imperatives, this research also recognizes the seductive legal, economic and cultural benefits for sexual minorities to follow suit. Accordingly, it questions the condemnation of nondisclosure often seen in Chinese LGBT movements, especially with regard to the controversial issues of cooperative marriage (xinghun) and “fraudulent” marriage (pianhun). It argues that same-sex-oriented people often face a double bind: compulsory hiding and compulsory confessing. Coming out challenges the former yet may reinforce the latter. Therefore, visibility and secrecy are both valuable tactics and should not be antagonized in LGBT movements.’

What will be done with the outcome of your research?

‘The life stories and legal analysis in this thesis will hopefully provide more food for thought for the LGBT movement in China and elsewhere to accommodate more diversity, including those who do not identify as such and whose practices may contravene the ethos of being “out and proud”.

This thesis also points to a promising direction for legal change. In the absence of a same-sex marriage package, there are actually fruitful resources in existing Chinese law that can be used in favour of same-sex-oriented people, such as the ‘related person’ clause in the law on medical decisions, and the broad interpretation of “family” in some regional laws against domestic violence. Such a “beyond-marriage” approach of law reform will have a wider range of beneficiaries than those who can afford coming out and getting married.’

Everyone is welcome to her defense. For the summaries in English/Chinese/Netherlands, table of contents, propositions of this thesis, and more about the author, see Jingshu Zhu's personal website.

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