For gay and lesbian couples in China, being denied the right to marry is not only an indication of the country’s unwillingness to grant them the status and dignity that heterosexual couples enjoy, but it also poses real-life challenges that make the community even more vulnerable: the lack of clarity around property rights after death, and the question as to who can make medical decisions for them if they are incapacitated.
Sohu News reports (in Chinese) that more and more same-sex couples of all age ranges in China are naming their partners as their legal guardians, a practice that is common among frail seniors in China but not among young adults.
Lǐ Chényáng 李辰阳, an officer working at the notary office in Shanghai’s Putuo District, told Sohu that he has dealt with more than a dozen guardianship cases involving same-sex couples since October 2017, when China changed its laws so that all adults of full capacity are given the liberty of appointing their own guardians by mutual agreement. Unlike China’s marriage laws, the new guardianship system does not single out gays and lesbians.
“While same-sex marriage is illegal in China, gay and lesbian couples are grappling with a string of same issues facing heterosexual couples, such as healthcare, senior care, and inheritance,” Li said. “What we are attempting to achieve is eradicating legal loopholes and solving social problems for them.”
But the fact that same-sex couples are lawfully allowed to apppint each other as gurdians doesn’t mean the process is smooth. Dīng Qīngyǎ 丁清雅, a veteran lawyer in Hunan who specializes in guardianship cases, told Sohu News that when she helped the first same-sex couple navitage the new system in 2018, the local notary office in Hunan Province held a six-hour meeting to decide whether to accept the couple’s application. “The discussion was centered on whether the approval of such cases would disrupt public disorder or morality,” Ding said. “There were concerns about potential legal problems that might arise afterwards.”
Li pointed out that not all same-sex couples who came to him for legal assistance were comfortable with disclosing their relationships. Meanwhile, some of them insisted on stating their romantic relationships on notary documents even though it’s not required. “They see it as an alternative form of getting marriage licenses,” Li said.
Based on Li’s observation, most of the same-sex couples he helped are around the age of 40 and financially independent. Many of them started contemplating naming their lovers as guardians after experiencing some life-or-death moments, such as being sent to hospital in a critical condition when medical staff needed a guardian’s signature to perform surgery. “Gays and lesbians in China tend to have bad relationships with their parents, who don’t understand them or in some cases cut ties with them due to their sexual orientation.”
In May, Taiwan’s legislature approved Asia’s first same-sex marriage law, but there are no signs of mainland China following Taiwan’s move anytime soon. A gay rights advocate told Sohu News that under current circumstances, seeking guardianship relations are the optimal approach available in China’s legal framework if they want to be official recognized.