“Accepting that the issue of recognizing same-sex relationships has emerged as a current issue in Asia, it may be useful to set out how such recognition has occurred over the last 30 years in Western legal systems.”
SAME-SEX MARRIAGE: AN OLD AND NEW ISSUE IN ASIA
Professor Douglas Sanders
sanders_gwb @ yahoo.ca
September 1, 2011
เอกสารประกอบการการสัมมนาการระดมความคิดเห็นเครือข่ายเพื่อร่างข้อเสนอกฎหมายรับรองสถานภาพคู่ชีวิตเนื่องในโอกาสการประชุมความร่วมมือในกรอบสถาบันสิทธิมนุษยชนแห่งภูมิภาคเอเชียแปซิฟิก ระหว่างวันที่ 5- 7 กันยายน 2554 ณ โรงแรมเอเชีย กรุงเทพฯ
AN OLD ISSUE
The recognition of same-sex relationships is far from being a new issue in Asia. Lesbian and gay homoerotic carvings feature on the famous Indian religious temples of Kanarak and Khajuraho. Male homosexual activity was accepted at the Muslim court in Mogul India. A wealth of fiction and commentary celebrated same-sex love involving Samurai in pre-Meiji Japan.
Tokugawa-period (1600-1867) Japan has probably the best recorded tradition of male same-sex love in world history. Period novels, poetry, and art all provide extensive representations of the varieties of homosexual love practiced. Incidental information gleaned from biographies, news, scandals and official records as well as testimony from foreign visitors show how widely practiced was male-male eroticism through all strata of society. Tokugawa (homo)sexuality has recently been widely discussed in both English and in Japanese. These researchers amply illustrate the widespread prevalence of homosexual relations among men of the samurai class as well as among urbanites generally.
At many points in Chinese history
“…homosexuality acted as an integral part of society, complete with same-sex marriages for both men and women.
Prior to the introduction of Western sexology into China in the early twentieth century there were “sizable historical, literary, and legal discourses concerning male-male sexuality…”
These Asian traditions were displaced by Western colonial expansion in the late 19th century, when new German sexological studies were exported to Asia as part of Western science. The criminalization of homosexual acts began in Asia with the Indian Penal Code of 1870, a codification of British criminal law, enacted for India and copied by the British for its other colonies in Asia, Africa and Oceana. Ruth Vanita comments for India:
Notwithstanding some scholars’ discomfort with ascribing to colonialism the modern erasure of earlier homoeroticisms (and other eroticisms), evidence so far available indicates overwhelmingly that a major transition did indeed occur at that historical moment.
PROTESTING THE NEW HOMOPHOBIA
Protests against the new intolerance are scattered through local histories, sometimes getting noticed in stories of same-sex weddings. In the 1970s and 1980s Thai newspapers ran stories of same-sex marriages. On April, 19th, 1981, two women, Jossie and Bonnie, were married in Jakarta. The reception was a lovely affair “with invitations, guests, fine clothes, and members of both families present…” The wedding was a feature story in two national Indonesian language magazines, Liberty and Tempo. Liberty made it a front-page story. The 1987 wedding of two female police constables, Leela Namdeo and Urmila Shrivastava made national headlines in India. Both were fired from their jobs.
No one has been able to pull these local wedding stories together, and most, of course, were private affairs. Now the same-sex wedding stories that appear in public media in Asia are protest stories.
Near Tiananmen Square, on Valentine’s Day, 2009, two lesbians in flowing white wedding dresses, and two gay men, in black tuxedos, went through wedding ceremonies. Pictures appeared in international media and in the English-language China Daily.
Organisers gave out roses and flyers to onlookers to promote social acceptance of same-sex relationships and support of same-sex marriage laws. For the past few years sociologist Li Yinhe has been submitting proposals at the People’s Congress to enact same-sex marriage legislation.
Both People’s Daily and Shanghai Daily covered a Beijing wedding of two men in January, 2011. They celebrated the “comparatively open” event with 50 guests at a restaurant in the capital city.
Associated Press gave international coverage to the ‘marriage’ of two women at a Hindu temple in Nepal in June 2011. The traditional ceremony was conducted by a Hindu priest at a major temple.
Taiwan, which hosts Asia’s largest annual pride parade, has now organized the biggest wedding event.
About 60 lesbian couples will tie the knot in Taiwan’s biggest same-sex mass wedding in the hope that the island will soon follow New York to legalise gay marriage, an organiser said yesterday. Around 1,000 people have purchased tickets for the private event, which will take place at an overnight party in Taipei later this month, including visitors from China, Thailand and the US, said organiser Ai Wang. Even though gay marriage is not legal in Taiwan, the organisers do not expect a government crackdown. The cabinet in 2003 drafted a bill to legalise same-sex marriages and allow homosexual couples to adopt children, the first in Asia to promise to do so, but it has not yet been reviewed by parliament.
Two governments in Asia have given some support to recognizing same-sex marriages, Taiwan and Nepal.
When Chen Shui-bian was mayor of Taipei, he accepted the invitation to attend the same-sex wedding ceremony of popular author Hsu Yoshen and his partner Gary Harriman in Taipei in November 1996. When he was president, in 2001, the Ministry of Justice drafted legislation recognizing marriage and adoption, which went to the cabinet for review. In 2003 there seemed to be movement on the issue, with draft legislation:
United Daily News, a local newspaper quoted the Presidential Office as saying: “The human rights of homosexuals have been gradually recognised by countries around the world. To protect their rights, people [of the same sex] should have the right to wed and have a family based on their free will,” it added.
In a televised debate between candidates for the presidency in March, 2008, Ma Ying-Jeou, the current president, noted that he had allocated funds for the gay pride events in Taipei when he had been mayor of the city, a policy that started in 1999. He boasted that “Taipei is the freest city to live in if your’re gay.” He stated that “sexual orientation is inborn and needs to be both respected and tolerated.” On marriage, he said he planned to engage in public dialogue on the issue to generate understanding and consensus, saying he was “respectful but cautious” on same-sex marriage. The candidate of the Democratic Progressive Party, Frank Hsieh, said that problems, such as joint tax filings and adoption should be resolved “step by step” before marriage would be considered.
The Nepal Supreme Court in 2008 gave a judgment broadly upholding gay, lesbian and transgender rights, and instructing the government to proceed with the drafting of legislation to implement the decision. Opening marriage was to be one of the reforms. The process of drafting a new constitution has continued since that time, subject to various political roadblocks. Implementing provisions, constitutional or legislative, have not been completed, but some administrative reforms have occurred. Sunil Pant, founder of Nepal’s Blue Diamond Society, and a member of the legislature, is confident that Nepal will be the first Asian country to have modern legal same-sex marriage.
MODERN LEGAL RECOGNITION OF SAME-SEX RELATIONSHIPS
Accepting that the issue of recognizing same-sex relationships has emerged as a current issue in Asia, it may be useful to set out how such recognition has occurred over the last 30 years in Western legal systems.
There are three ways in which same-sex relationships have been given legal recognition:
(a) ASCRIPTION. This refers to the legal recognition of existing relationships, often for specific purposes, like social benefits, inheritance, or immigration sponsorship. Couples do not have to register or go through a marriage ceremony. Recognition is given by courts, legislation or administrative practice.
(b) REGISTRATION. This refers to laws which allow same-sex couples to register with a government agency. They are then entitled to some or all of the legal rights and obligations of marriage. Registration systems are separate from marriage, even in countries like the United Kingdom in which all of the rights and obligations of marriage are given to registered partners.
(c) MARRIAGE. In many countries same-sex couples can now marry, entering into the same legal relationship that the law provides for heterosexual couples.
Two decisions of the United Nations Human Rights Committee have upheld equal pension rights for same-sex couples as for heterosexual couples (without any registration or marriage). The denial of pension rights was discriminatory and violated the provisions of the International Covenant on Civil and Political Rights (which Thailand has signed).
Survivor tenancy rights to rent controlled apartments have been upheld in cases involving same sex couples – in the Netherlands by legislation in 1979 – in New York by a judicial decision in 1989 – in Europe by decisions of the European Court of Human Rights in 2003 and 2010. Equal rights by ascription have been upheld in Colombia by a Constitutional Court ruling in January, 2009, and in Brazil by Supreme Court order in 2011 Administrative practice in Canada allowed the recognition of relationships for immigration sponsorship purposes (before marriage was introduced).
Denmark enacted its Registered Partnership Act in 1989, which extended all the rights of marriage to same-sex couples who registered, with two exceptions. Same-sex couples did not gain adoption rights and they were not entitled to have a ceremony in the state Lutheran Church. One partner had to be a citizen or permanent resident (a common requirement for marriage in parts of Europe, so not a provision that discriminated against same-sex couples). Immigration sponsorship rights were part of the package.
The Danish legislation was copied in the Netherlands, Sweden, Norway, Finland and Iceland. Many other jurisdictions enacted similar laws for ‘registered partnership’, or ‘civil unions’ or the social solidarity pacts in France. Some came close to equal rights with heterosexual marriage, but many were clearly quite limited in the rights involved. The rights in the UK are identical for marriage or registered partnership. A registration system in Washington State was called the “everything but marriage” law, for it gave all state-level rights, but not the word “marriage.” Registration systems were adopted in many states or provinces in Canada, the United States and Australia.
In the Nordic area the laws have been strengthened to include adoption rights and in some places ceremonies in the state church are possible. As well the Nordic states agreed to mutual recognition of registered partnerships (just as marriages in one state are usually automatically recognized as of legal effect in other states).
The Netherlands opened marriage to same-sex partners in 2001. The Dutch lead has been followed in Argentina, Belgium, Canada, Iceland, Norway, Portugal, South Africa, Spain and Sweden. Same-sex marriages can take place in Mexico City and those marriages are recognized throughout the country.
In July, 2011, New York State opened marriage to same-sex couples, becoming the sixth state in the United States to do so. In May, 2011, the Gallup Poll reported that a majority of Americans (53% to 45%) believed that same-sex couples should have the same marriage rights as straight couples. Some lower courts in the US have now ruled unconstitutional the Federal Defense of Marriage Act, which bars federal recognition of same-sex marriages.
A PATTERN TO CHANGE IN THE WEST?
The Netherlands is an example of a country where recognition went through three stages – firstly ascription – secondly a registration system – finally marriage. This kind of process, working through stages, is not surprising. For many people, lesbian and gay issues are new and unfamiliar because modern homophobia has kept people “in the closet.” Dealing with specific issues, like social benefits or hospital visitation rights, introduces the public to the kind of issues that are involved. When such specific issues are resolved by ascription, it is easier to move onto a more general system of recognition of same-sex relationships through a registration system. If a registration system is achieved, there is little reason to continue to deny the status of “marriage” to the couples involved.
We have had 32 years since ascription began in the Netherlands in 1979. We have had 22 years since registration began in Denmark in 1989. We have had 10 years since marriage began in the Netherlands in 2001. These issues are no longer “in the closet.” They are in the newspapers, on television, on the internet, every day. Little reason now to slowly proceed through stages.
 Rakesh Ratti, A Lotus of a Different Color, Alyson, 1993, 22.
 Ratti, 31-33.
 See, for example, Saikaku, The Great Mirror of Male Love, Stanford University Press, 1990 [a translation of Nanshoku Okagami of 1687).
 Mark McLelland, Male Homosexuality in Modern Japan, Curzon, 20-21 (references omitted).
 Hinch, Passions of the Cut Sleeve: The Male Homosexual Tradition in China, University of California Press, 1990, 2.
 Tze-ian D. Sang, The Emerging Lesbian, Chicago, 2003, 42. See also, Tan Chong Kee, Same-sex love in ancient and modern Chinese history, fridae.com, June 12, 2007 and June 19, 2007.
 See Douglas Sanders, 377 and the Unnatural Afterlife of British Colonialism in Asia, Asian Journal of Comparative Law, Volume 4, 2009, 165-206. There had been an earlier criminalization by the Spanish in the Philippines, but that law was repealed when Spain adopted the Napoleonic Penal Code. The adoption of the Napoleonic code decriminalized homosexual acts in half of Europe, with the result that only the British exported prohibitions to Asia. Prohibitions in Central Asia have early European origins conveyed through Russian imperialism.
 Ruth Vanita, Queering India, Routledge, 2002, 4.
 Communication from Dr. Peter Jackson, Australian National University, August 15, 2011.
 Tom Boellstorff, The Gay Archipelago, Princeton, 2005, 62-3.
 Geeta Patel, Homely Housewives Run Amok, (2004) 16 Public Culture, 131, at 147.
 Activists hold mock wedding photo session on Beijing streets, fridae.com, February 16, 2009; China Daily, Year of Gay China, reprinted in fridae.com, December 29, 2009.
 Gay men ‘marry’ in Beijing, fridae.com, January 25, 2011. This story gives links to the Shanghai Daily and Peoples Daily stories.
 AP, First lesbian wedding as country drafts new laws, Bangkok Post, June 21, 2011, 8.
 AFP, Here come the brides, Bangkok Post, August 10, 2011, 7.
 A stomach ailment prevented his attendance, but he sent representatives to the wedding.
 Taiwan may legalise same-sex unions, fridae.com, March 12, 2002; Taiwan considers gay “marriages”, child adoption, fridae.com, June 27, 2001.
 Taiwan moves to recognize gay marriages, fridae.com October 28, 2003; Taiwan’s proposed same-sex marriage legislation delayed, fridae.com, December 10, 2003..
 Philip Hwang, Taiwan presidential elections candidates discuss same-sex marriage in televised debate, fridae.com, March 17, 2008.
 Such relationships are often called ‘de facto’ or ‘common law’ relationships. This kind of legal recognition often began with the recognition of unmarried heterosexual couples. The recognition was then extended to same-sex couples..
 Young v Australia, 2003, CCPR/C/78/D/941/2000, X v Colombia, 2007, CCPR/C/89/D/1361 /2005. In Joslin v New Zealand the Committee rejected a claim to marriage on the basis of the specific gendered language in the International Covenant on Civil and Political Rights: CCPR/C/75/D/902/1999.
 Braschi v. Stahl, 1989, 543 N.E. 2nd 49.
 In the 2003 decision in Karner v. Austria, the European Court of Human Rights recognized a same sex relationship for the purposes of successor tenancy rights (repeated in 2010 in Kozak v Poland).
 Colombia’s Constitutional Court Rules for Equality, January 28, 2009 (press release, copy in possession of the author).
 Reuters, Brazil’s supreme court recognizes gay partnerships, May 5, 2011; AP, Court grants legal status to gay unions, Bangkok Post, May 7, 2011, 5.
 Connubial bliss in America, The Economist, July 30, 2011, 32.
 The ban on gays and lesbians openly serving in the US military has been ended by Congress, after strong urging from President Obama. In 2011 US embassies in various parts of the world hosted receptions marking the International Day against Homophobia.