Why are so few LGBT Chinese couples taking advantage of laws that could protect their rights?

Phoebe Zhang

A gay couple in Beijing recently made national headlines when they became the first same-sex couple to become each other’s legal guardian.

The option – which allows them to authorise medical treatment and confers the highest degree of legal protection available in a country where gay marriage is still prohibited – has been open to same-sex couples for two years, but so far only a dozen or so couples have taken advantage of it.

While the publicity the unnamed Beijing couple attracted may have helped raise awareness of a change in the law that many members of China’s LGBT community did not know about, many of those who have tried to take advantage of the measure have faced a series of other barriers.

Even successful applicants have found the process complex and time-consuming.

The notary needs to meet the applicant several times to discuss the specific terms of the notarisation, mostly in microscopic detail, such as whether the guardian is allowed to sell their house to pay for the partner’s hospital treatment.

Wang Yue had trouble convincing a notary to undertake the guardianship procedure. Photo: Handout

Peng Yanzi, director of the Guangzhou-based group LGBT Rights Advocacy China, tried to register his relationship with his partner but was told that notaries considered it an unnecessary procedure.

When Wang Yue, a 40-year-old from Xiangyang, Hubei tried setting up legal guardianship with his boyfriend in 2018, the couple faced a similar series of problems.

When Wang visited a notary saying he wanted to list his boyfriend as his guardian, the official said he would have to “check with his supervisors”.

A month later, the notary agreed that he could perform the service for same-sex couples, but said he needed advice on the correct documentation to use – a difficult thing to do when there were so few examples.

Eventually, the couple were able to undertake the procedure by adapting the documentation used by elderly people to appoint a legal guardian.

The guardianship policy in China has existed since 2013, but was initially limited to elderly people. But in 2017, China broadened it to apply to all adults, enabling the designated guardian to take responsibility when the beneficiary is not capable of consenting to medical treatment.

The change was not specifically designed to serve the LGBT community, but in a country where sexual activity between people of the same sex was illegal until 1997 and homosexuality was classed as a mental illness until 2001, gay couples lacked other ways to ensure their partners’ rights.

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Previously they were not allowed inherit each other’s money or property, purchase a house together, and should they decide to give birth or adopt, the child can only be registered to one party’s household.

The first person in China to take advantage of the change in the guardianship law – a 36-year-old known as Foge – said she had signed a number of legal documents with her partner to ensure their 11-year relationship was as similar to a marriage as was legally possible.

“One document authorises the other party to sign our hospital papers, one authorises the other party the right to dispose of my properties and fortune at will, and one authorises her to represent me legally in lawsuits,” Foge said.

Activist Peng Yanzi gives a talk about the guardianship procedure. Photo: Handout

The publicity generated by the Beijing couple has prompted some to compare the legal measure to same-sex marriage, but Gao Mingyue, a Shanghai lawyer, said it was not the same although it did meet some gay couples’ needs.

Gao has worked for several same-sex couples and helped them to acquire the guardianship documents from the city’s notaries.

“These couples mostly come to me with pressing concerns. They have heard about the guardianship or felt a dire need to execute it,” he said.

Medical authorisation was among the top reasons for undertaking the procedure.

“Without such a document, according to the current medical regulations or civil laws, their legal partners would never be allowed to sign surgical papers,” Gao said.

“They don’t have the status or legal power. So what if they have an accident tomorrow? What if they need someone to sign tomorrow? That’s why they are in a hurry.”

Campaigners said the change in the law was no substitute for full marriage equality. Photo: Reuters

Another concern is finance, such as setting up a family trust fund to benefit their partners. Gao said it could be difficult to explain why they were listing a non-family member as a beneficiary of insurance or investment products, but the relationship was easier to explain using legal guardianship documents.

But, he said: “[Guardianship] is not equal to the partnership status given by marriage. It doesn’t give any instant benefits such as sharing property or dealing with children.

“It doesn’t serve as a certificate for their relationship, rather it only gives the right to act on the other party’s behalf decades down the line.”

Viewed in that light, many hesitated to take that step, he said.

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Peng has been encouraging people to take advantage of the change to the law, but agreed that it only conferred a small number of the rights that legalising same-sex marriage could bring.

More importantly, he said, marriage had a symbolic and social importance that showed the nature of a couple’s relationship to the world – and may make it easier for families and friends to accept same-sex relationships.

“This is why we are continuing to fight for [the right to] marriage,” he said.

“Guardianship is a good step, but it’s not a marriage. We need more equality to ensure our rights.”

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