The equality of rights is one of major principles, constituted by both international and national sources of human rights law. The equality of persons’ rights and opportunities can also be viewed as a major prerequisite of the establishment of democracy and classical liberalism. In broad terms this principle means that all the people should have equal rights, regardless of their nationality, colour of skin, political views, state of health and sexual orientation. At the same time international law recognizes that family plays an essential role in the life of a person and human society as a whole. The right to marriage can be found in Art. 16 of the Universal Declaration of Human Rights (UDHR). The Supreme Court of the U.S. views the right to marriage as one of the fundamental rights (Myanard). Furthermore, it is viewed as a due process issue (Meyer). Furthermore, the Massachusetts Supreme Court ruled that denying marriages to same-sex couples has to be viewed as a violation of the right to privacy (Cahill 2).
As the promulgation of family-related laws falls within the competence of the states, same-sex marriages are lawful in 17 states. Vast majority of other states include other forms of same-sex relationships’ legalization, such as civil unions, reciprocal beneficiary relationships and domestic partnerships. Taking into account the federal law’s view on same-sex marriages, it may be expected that ion the future different forms of legalizing relationships between same-sex persons will be unified under the umbrella of same-sex marriage.
The situation in many other countries in the world is not so encouraging. For instance, China recognizes neither same-sex marriages nor any other forms of relationships between people of the same sex. For the purposes of this assignment I will consider the non-recognition of same-sex marriages in China as a human rights issue, and discuss its implication on the lives of the affected demographic group.
The demographic group affected
The existence of same-sex relationships in China is considered to be well-documented since old times. According to vast majority of homosexuality-related studies, the relationships of same-sex couples were considered as a normal facet of social life in China before the Westernization of China in the late 19th century (Hinsh 56). Confucianism that has well-developed parts, dedicated to political and social ideas did not dedicate lots of attention to the issue of same-sex relations. As it was mentioned above, homophobia was imported to China, along with Western literature, philosophy and the way of life. Thus, China has experienced a long history of homosexuality, being recognized a felony and penalized. In the 1980s greater public discussion and scientific research related to homosexuality were developing due to the significance of changes in attitudes to same-sex couples in the Western world. However, only in 2001 homosexuality was officially removed from the list of mental disorder. Earlier it was decriminalized. It is interesting to note that before homosexuality was approached both as a crime and mental health issue.
There is a little up-to-date information concerning the number of people, who report belonging to LGBT community, and the number of same –sex couples in China. This fact stems from the lack of state legalization of same-sex couples’ relationships in the country. Furthermore, as homophobic moods still remain in Chinese society, homosexuals tend not to make their sexual orientation widely known. However, nowadays public attitudes are also changing, and it is often stated that young well-educated men in urban areas do not view being homosexual as an issue (Lau 1) The period from 2005 to 2014 is characterized with the loss of taboo status by homosexuality, the wide homosexuality-related discourse in the media, as well as the organization of gay parades and the issuance of symbolic marriage certificates to gay couples (Kang 7).
What are some of the issues and their causes?
As opposed to the USA and a range of other countries, in China the members of LGBT community are deprived of the right to marriage. Thus, they are unable to create the family, accordingly to their own vision. As a consequence, homosexuals cannot get legal benefits, provided for the people by the social and legal institute of marriage. The most important consequence to mention lies in the fact that same-sex couples are deprived of the right to adopt children and raise them in full families. Feeling themselves limited in their rights (that are possessed by all other people in society), members of LGBT community may feel excluded and marginalized. The artificial difference that exists between heterosexuals and homosexuals in Chinese society calls forth homophobic moods and discrimination of homosexuals.
As it was mentioned above, the causes of the issues under study are strongly interrelated with the history of attitudes towards homosexuality in China. Before the development of human rights movement (that included the movement for the equality of opportunities and rights in China), homophobic moods existed both in Europe and the United States. Thus, Westernization of China automatically meant the development of anti-homosexuals attitudes in China. As homophobic moods have existed in China for a significant period of time, they can be viewed as social stereotypes. Going further, one may ask, how stereotypes appear. The incidence of stereotypes is strongly interrelated with the fact that the majority of people is heterosexual and establishes different-sex couples. So, homosexuals, willing to have the family with the person of the same sex represent the minority. In other words, incidence of stereotypes is related to the minority status of a particular group. If one imagines that 90 per cent of the people in China are homosexual, it is evident that the range of stereotypes will appear with regard to heterosexuality as a “mental health issue” or “deviation”.
Who is involved in solving the issues?
Solving the legal issue of the lack of norms, providing for the establishment of same-sex couples, can be easily solved by the law-makers in case they choose to adopt relevant law. However, the law is necessary to provide the form for the social relations, accepted by vast majority of the members of society, so that it does not cause active opposition and escalate homophobic moods in the society. Therefore, it is important to adopt measures in order to change the attitudes towards homosexuality and same-sex couples. Firstly, it is important to provide society with the understanding of the principle of equality of all the people, regardless of sexual orientation. Secondly, active measures need to be adopted to make heterosexuals used to the LGBT community culture. Finally, the citizens of China require more profound education about the issues of tolerance, the interrelations between democracy and human rights, as well as the rights of minority and marginalized groups.
The measures that were mentioned above need to have a mass nature and be adopted both in urban and rural areas. Thus, it is logical to suggest that the implementation of these activities will require joint activities of a significant number of actors. The state can participate in promotion of tolerance, human rights and democracy education through the Ministry for Education. The Ministry for Education can include relevant units in school and university curricula for senior pupils and students respectively. Furthermore, the implementation of the measures under study can be conducted through the network of non-governmental organizations that specialize in human rights issues. The organizations can develop specific projects, aimed at educating specific groups about the issues of minority rights, tolerance and democracy. The organizations can adopt measures to get society members engaged in human rights work. One of reliable means state, NGOs and activists may use in their educational and human rights work is social campaign. Social campaigns are based on the principles of social marketing. Social marketing is based on application of classical marketing principles and concepts to promote behavior that is beneficial for individuals and solving social issues. The peculiarity of social campaigns lies in the fact that they allow to target a narrow group of people and make them pay attention to a particular social problem. For instance, it is possible to create social campaigns, aimed at educating about tolerance and the rights of homosexual people, targeting schoolboys, who tend to bully their homosexual peers.
Taking into account current trend to the openness of public discourse on homosexuality issue, it is important to use this beneficial moment to take measures that can further help homosexual people to get the right to establish same-sex marriages and realize their right for their right to have a family.
Immediate concerns related to the rights of LGBT community members deal with making Chinese society free from discrimination and lawless infringement of the community members’ fundamental rights. As it was mentioned above, meeting these concerns includes promotion of tolerance-based education among citizens of different age and making heterosexuals adjusted to the culture of the LGBT community. These measures will help to make Chinese society more tolerant to the LGBT community and reduce possible opposition to granting LGBT people the legal right to establish same-sex marriages or get engaged in other forms of same-sex couples’ relations.
The long-term concern deals with adopting the legal regulation, providing the members of the LGBT community in China with the legal right to same-sex marriages, and ensuring the design of the norm that will ensure equality of same-sex marriages and the marriages of different-sex couples. It is also important to alleviate possible opposition of general public to the adoption of this legal act, and adopt multifaceted measures, aimed at promoting tolerance and respect for diversity.
How do the concerns relate to the audience and its daily life?
The lack of the legal right to marry the people of the same sex exerts impact on the lives of the members of the LGBT community in China on the daily basis. Apparent inequality of rights and opportunities makes the audience feel marginalized and excluded from social life. This effect is supported by the fact that homophobic attitudes are still preserved in Chinese society. Homosexual people may be prevented from sharing their perspective on family life, because of possible future difficulties in the relationships with other people. Furthermore, they can experience communication-related issues, when dealing with heterosexual people, who fail to approach them with the relevant degree of tolerance and understanding.
What moral issues are involved in the discourse?
The legal ban of same-sex marriages in China is concerned with a wide range of moral issues. The first one is concerned with the perception of homosexuality in society. As homosexuality has long been viewed as a deviation, and immoral act, significant issue lies in changing this view. Secondly, the question arises, whether it is moral for one group of people (law-makers) to deprive another group of people, who are not guilty of any crimes, from the right to marry and establish a family. An important issue deals with finding the balance between religious views (many religions consider homosexuality either a sin or a deviation) and the fundamental principle of equality of opportunities. A range of issues may also arise with regard to granting same-sex couples the right to adopt children.
The issue of the legal ban of same-sex marriages and civil unions in China is a serious violation of the rights to family and privacy, as well as the principle of equality of opportunities. Thus it is necessary to adopt measures that will make it publicly acceptable to adopt the law, providing for same-sex marriages. These measures may include promotion of democracy, human rights and tolerance education and the inclusion of the LGBT community culture. Above-mentioned steps need to be taken by joint action of state and non-state actors. Combating homophobia and discrimination against homosexuals in society will create necessary climate for the adoption of the law under study, and promote equality of rights and opportunities in China.
Cahill, S. Same-Sex Marriage in the United States, 2004. Maryland: Lexington Books. Print
Hinsch, B. Passions of the cut sleeve. California: University of California Press, 1990. Print
Kang, W. Obsession: male same-sex relations in China, 1900-1950. Hong-Kong: Hong Kong University Pressm, 2009. Print.
Lau, S. Homosexuality in China. U.S.-China Today, 03 October 2010. Web. 16 March 2014
Maynard v. Hill, 125 U.S. 190. Supreme Court of the USA. 1888. LexisNexis Academic. Web. 16 March 2014
Meyer v Nebraska 262 U.S. 390. Supreme Court of the USA. 1923. LexisNexis Academic. Web. 16 March 2014
The UN. Universal Declaration of Human Rights. 1948. Web. 16 March 2014