PhD Thesis

Straightjacket: Same-Sex Orientation under Chinese Family Law

Marriage, Parenthood, Eldercare

(Leiden, 2018)


This PhD thesis gives a panorama of both the official laws and the informal social norms that influence the family life of same-sex-oriented persons in mainland China. It pivots around three important imperatives in the ‘normal’ trajectory of family life: getting married, giving birth and securing eldercare. It asks how Chinese same-sex-oriented people follow and/or resist this path, and in this process, how they interact with Family Law in its pluralist sense.

This thesis covers a wide range of socio-legal issues that are directly or implicitly influencing one’s family life. It discusses 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 decision in 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.

Alongside detailed legal analysis, this thesis features vivid story-telling from eight months’ anthropological fieldwork. The author conducted semi-structured interviews and informal conversations with more than 60 respondents. The story-tellers 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, LGBT activists and so on. Together they show the tensions between the global LGBT rights discourse and the lived experiences of Chinese same-sex-oriented persons with or without a gay identity.

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 socio-legal benefits for the ‘family outlaws’ to follow suit. Accordingly, it questions the encouragement of coming-out and the condemnation of nondisclosure often seen in LGBT movements. It also endorses a beyond-marriage approach of legal reform, which unpacks the rights attached to marriage, so that the law can protect not only same-sex couples but also a wider range of relationships worth valuing.

This research incorporates legal doctrinal research, ethnography, queer theory, gender studies and post-colonial theory. It dialogues with legal consciousness doctrine, namely, ordinary people’s actions ‘before’, ‘with’ and ‘against’ the law; it reflects on the research ethics of conducting fieldwork on sensitive topics; it complicates the anti-normative ethos in queer theory; it shows the not always harmonious relation between women’s rights and gay rights, especially regarding marriage and reproduction. This study takes seriously both the empowering and the limiting effects of a globally popularizing LGBT rights discourse.