Last week, several news sources reported that a court in China had accepted a same-sex marriage case on January 5. According to Reuters, Sun Wenlin filed the case against a civil affairs bureau in Hunan province after he was unable to marry his male partner. The trial and the verdict will most likely occur within the next six months.
Many activists hailed the acceptance of Wenlin’s case as a momentous occasion for LGBT visibility in China. It is the first time a court has accepted a case of this kind.
However, Dan Zhou, a top legal expert and openly gay lawyer based in Shanghai, warned that the case is unlikely to lead to a change in the constitution, which defines marriage as a union between one man and one woman. However, unlike in many countries, same-sex marriage is not expressly forbidden in the constitution or the country's laws.
In a message to HRC, Zhou explained that the court is likely to dismiss the case based on its substantive claims. The Chinese legal system is not based on case law and courts do not have the power to conduct judicial review of the constitutionality of laws.
“The existent political and legal regime in China does not authorize any court at any level to alter the constitution or legislation passed by the National People’s Congress,” Zhou said. “(Wenlin’s case) would not amount to unlawful omission under current administrative law.”
The only way to achieve marriage equality in China would be to pass legislation in the National People’s Congress, which is not on its agenda at the moment.
LGBT people in China are becoming increasingly visible and less marginalized and they are making important social and legal progress. Even though homosexuality is not illegal, it was only removed from the Chinese Classification of Mental Disorders in 2001. LGBT people continue to lack any formal legal recognition or protections from discrimination from families, at school, at work and elsewhere. More information about the situation for LGBT people in China can be found in our Global Spotlight report LGBT China Today: Surprising Progress yet Daunting Obstacles.