It has become something of a truism, in both academic discourse and everyday conversation, that invisibility is a central form of queer oppression. In a culture in which queer lives are erased—whether through passive ignorance, deliberate exclusion, or reductive portrayals as tragic, broken figures—the urgency of authentic representation cannot be overstated. But when it comes to gender and sexuality in China, queer invisibility is compounded by a different kind of unintelligibility: a persistent tendency to view China through a Western lens. Commentators habitually apply Western categories of sexuality to the study of China without critically considering how such categories might be challenged, revised, or expanded by the experiences of other societies. The absence of critical engagem…
It has become something of a truism, in both academic discourse and everyday conversation, that invisibility is a central form of queer oppression. In a culture in which queer lives are erased—whether through passive ignorance, deliberate exclusion, or reductive portrayals as tragic, broken figures—the urgency of authentic representation cannot be overstated. But when it comes to gender and sexuality in China, queer invisibility is compounded by a different kind of unintelligibility: a persistent tendency to view China through a Western lens. Commentators habitually apply Western categories of sexuality to the study of China without critically considering how such categories might be challenged, revised, or expanded by the experiences of other societies. The absence of critical engagement with what it means to ‘include’ or ‘do’ the history of Chinese homosexuality has led to a wave of search-and-rescue projects—efforts to locate queer subjects within a framework that remains fundamentally Western-centred and unexamined.
One consequence of this layered unintelligibility is the tendency to treat legal reforms—especially same-sex marriage—as the sole measure of queer progress and emancipation. On this basis, Taiwan and Thailand, the first two Asian countries to legalise same-sex marriage, have been widely praised by Western commentators, while countries such as Singapore, which only repealed its colonial-era sodomy law (Section 377A of the Penal Code) in 2022, continue to be cast as ‘authoritarian’. China occupies an ambivalent position in this progress narrative. Though almost always labelled ‘authoritarian’ by Western media, China has neither progressive nor explicitly repressive laws concerning homosexuality. This legal ambivalence has produced a range of confused and contradictory accounts in anthologies that aim to extend visibility to LGBTQIA+ movements in the Global South. The aim of this essay is to clarify the relationship between homosexuality and the law in China. By examining the evolution of policy and legal frameworks regulating same-sex desire in China—along with their broader social and cultural implications—I offer an alternative account of queer unintelligibility, which more accurately reflects the historical specificities of the Chinese context and the structural forces that shape them.
From Jijian to Liumang: The Evolution of Chinese Law
Scholars attempting to locate China within a linear, Western-centric narrative of global queer emancipation often focus on two legal milestones. The first came in 1997, when the repeal of Provision 160 of the 1979 Criminal Law was widely interpreted as the decriminalisation of homosexuality. The second was in 2001, when homosexuality was removed from the Chinese Classification and Diagnostic Criteria of Mental Disorders (CCMD-III). Now commonly referred to as the ‘decriminalisation’ and ‘de-pathologisation’ of homosexuality in China, respectively, these shifts do reflect—and have helped shape—significant changes in public attitudes. However, it would be a mistake to treat them as direct equivalents of Western liberal reforms. The thesis that homosexuality has been ‘decriminalised’ and ‘de-pathologised’ holds appeal for Foucauldian scholars writing primarily in English, in which the narrative of homosexuality’s emergence as a ‘species’ through legal and medical apparatuses in the West has become both canonical and widely accepted. In fact, homosexuality in China was never technically criminalised or pathologised in the same way. Rather than targeting homosexuals for persecution, the Chinese State—from the Qing Dynasty (1644–1911) through the Republican era (1911–49) and into the People’s Republic of China (PRC, 1949–present)—has largely rendered them invisible through systemic denial of their existence. Therefore, I argue that within this historical and cultural context, the terms ‘decriminalisation’ and ‘de-pathologisation’ mischaracterise the problem entirely.
How exactly does a country prosecute a population whose existence it denies? In the seventeenth century, the Qing Court began to enact a set of draconian laws against sodomy (雞姦 jijian). Although the term jijian appeared in classical sources, it was not until the eighteenth century that the Qing Court began using it to denote homosexual anal intercourse in order to punish the offenders. In the Western academy throughout the 1980s and 1990s, the invention of Qing sodomy laws has been consistently interpreted as a newfound expression of homophobia in China. However, in a groundbreaking work published in 2000, legal historian Matthew Sommer challenges this thesis. Pointing out that in the Qing archives there is not ‘a single case of consensual sodomy being punished in the absence of other, more serious crimes’, Sommer (2000: 116) argues that what bothered Qing lawmakers was not the sexual orientation of the partners but homosexual rape.
Sommer argues that jijian emerged not from homophobia, but from the evolution of rape law. During the Yongzheng reign (1723–35), the Qing Court intensified its regulation of sexuality and began to treat male victims as subjects of sexual violation in need of state protection. As part of this shift in legal thinking, Qing officials began to conceptualise the vulnerable, penetrated male as analogous to the violation of female chastity outside marriage. In other words, jijian laws did not reflect a cultural perception of same-sex desire as an illness or perversion comparable with the notion of ‘homosexuality’ in Western societies. Rather, by comparing the penetrated male to the corrupted female, Qing legal initiatives sought to reinforce a traditional Confucian social order: the imperative that males act as husbands and fathers alongside the analogy of the imperative that females act as wives and mothers. For Sommer, interpreting the emergence of Chinese sodomy laws through the Western lens of tolerance versus homophobia ‘risks the anachronism of assuming that a fundamental social identity based on the sex of a person’s object of desire has always and everywhere existed and been interpreted in the same way’ (2000: 117).
Sommer’s work makes a clear case for the limitations of applying a Western progress paradigm to Chinese legal history. The conceptual incommensurability between Chinese sexual categories and Western notions of homosexuality persisted into the twentieth century. Just as the Qing Court had invented the legal category of jijian, the Chinese State in the Republican period coined a new one: hooliganism (流氓罪 liumang zui). On paper, liumang zui referred to the disturbance of social order and could be applied to various forms of public indecency. In practice, however, it was frequently used by the police to arrest men who had sex with men—without the need to establish a specific legal offence. This bypassed the thorny question of whether such acts constituted ‘homosexuality’—a term increasingly associated with Western moral decline. In effect, liumang zui enabled the de facto criminalisation of homosexuality without the de jure recognition in law. The 1979 Criminal Law, legislated by the PRC Government, as well as its repeal in 1997 (the ‘decriminalisation’ of homosexuality), must be understood in this framework.
The Decriminalisation and De-Pathologisation of Homosexuality in Postsocialist China
In an important article, historian Wenqing Kang argues that the much-lauded 1997 decriminalisation and 2001 de-pathologisation of homosexuality fail to address the complexities of China’s sexual politics. Building on the research of China-based legal scholars and his own archival work, Kang contests the familiar narrative of the socialist period—especially the Cultural Revolution—as a dark era of political repression of (homo)sexuality that only ended with the post-Mao loosening of social controls and gradual economic liberalisation. Kang points to a gap between the legal regulation of men who had sex with men and their everyday lives: although anal sex between consenting adults did not constitute a crime under the 1979 Criminal Law, in everyday life,
men could be punished outside the formal legal system for engaging in anal sex during the Maoist and the post-Mao reform period. Members of the Communist Party who engaged in consensual male–male sex could be disciplined with a warning within the party or have their party membership revoked. Nonparty members could lose their jobs, be detained without trial for a short period of time, or be sent to labor reform for longer durations. (Kang 2012: 236)
Moreover, the law did not criminalise non-penetrative sex or other erotic possibilities between men. Kang concludes, ‘[I]t is safe to say that it is “anal sex between men” [jijian], not homosexuality in general, that was criminalized under the Criminal Law, at least from 1979 to 1997’ (2012: 238).
As Kang’s research shows, the medical psychiatric definitions of homosexuality underwent several changes in China in the twentieth century. The first official attempt to classify homosexuality as a mental illness, the Chinese Classification of Mental Disorders(CCMD) was published in 1981. Alongside translations of the International Classification of Diseases, 10th Revision(ICD10, published by the World Health Organization) and the third edition of the Diagnostic and Statistical Manual of Mental Disorders(DSM-III, published by the American Psychiatric Association), the CCMD offered Chinese clinicians a framework for categorising homosexuality as a diagnosable condition. In 2001, the Chinese Society of Psychiatry published a revised edition of the CCMD that was widely interpreted by the media as evidence that homosexuality had been de-pathologised in China. But, as Kang points out, the language of the new CCMD is in fact rather ambiguous. Although homosexuality is no longer described as abnormal, it still falls under the category of psychosexual disorders. Furthermore, Kang argues that this shift was driven more by a desire to align Chinese psychiatric standards with international practices than by a sudden change in attitude towards homosexuals. We must therefore be careful not to conflate a compromise decision—internally heterogeneous and shaped by competing interests—within the medical community (which many did not support) with an epistemic rupture that reflects how an entire society thinks and lives.
Legal Views
Kang’s view resonates with arguments advanced by Chinese legal scholars. Guo Xiaofei, a professor at China University of Political Science and Law in Beijing, has shown that Chinese law—from jijianto liumang—has demonstrated a remarkable lack of interest in the sexual identity of the actors involved. Rather than construing same-sex desire as the expression of a specific sexual minority, Chinese law has consistently framed it as a matter of social disorder. Therefore, homosexuality must be interpreted through the legal principle of nullum crimen sine lege (‘no crime without law’)—meaning that an act is not a crime unless it was explicitly forbidden by law before it was committed. The absence of a legal definition of homosexuality in China, however, should not be mistaken for its acceptance or legitimation. The fact that homosexuality has never been a politicised issue in Chinese legal discourse also explains the persistent difficulty of passing progressive legislation based on sexuality. In this context, the unintelligibility of queer subjects has also created social and institutional barriers to legislating gay rights and to the affirmative protection of gender nonconforming individuals. The contrast between the historical unintelligibility of homosexuality in Chinese law and the gradual normalisation and legal recognition of homosexuality in the United States is profound.
Guo particularly objects to the oft-made analogy between the 1997 repeal of the 1979 Criminal Law in China and the two landmark US Supreme Court decisions Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). While the latter clearly marked the decriminalisation of homosexuality, Guo argues that the former did not represent a comparable legal or cultural shift in China. In Guo’s view, the widespread interpretation of the 1997 abolition of liumang zui as the decriminalisation of homosexuality is not only historically inaccurate but also politically misleading, as it suggests that homosexuality has been destigmatised (Guo 2007: 49–50, 94–98). Guo devotes a significant portion of his study to the difficulty of legalising same-sex marriage in China. Without a clear law prohibiting it, homosexuality also fails to become a rallying point for political rights or a common site of collective identification. As heterosexual marriage remains common among gay men and lesbians in China—whether with unsuspecting heterosexual partners or through xinghun (形婚, cooperative marriages between gay men and lesbians)—there has been no comparable pressure, as in the West, to make the legalisation of same-sex marriage a political priority.
Clashes between Legal and Popular Understandings
This is not to say that the concept of ‘homosexuality’ has never existed in Chinese society, or that Chinese individuals are incapable of identifying with it. Rather, my aim in reconstructing the arguments of Sommer, Kang, and Guo is to underscore the limitations of a social theory that relies on formal law to assess social progress—particularly when that progress is measured against US-based legal and cultural developments. In the case of China, it is more accurate to speak of a multiplicity of dissonant and heterogeneous views, many of which are internally fraught and often diverge from their legal or institutional representations.
The conceptual entry of homosexuality into popular sectors of Chinese society followed a very different trajectory from its legal treatment. Neologisms such as ‘same-sex love’ (同性愛 tongxing ai) and ‘homosexuality’ (同性戀 tongxing lian) emerged in early twentieth-century China as translations of Western terms. However, as Tze-lan Sang (1999: 277) argues, ‘the fact that many Chinese writers took an interest in novel theories about homosexuality from the West suggests that there was a convergence of local factors necessitating such discussion’, including a growing ‘curiosity [about] Western “modern science”’. In other words, the emergence of these terms did not represent a simple one-way transmission of Western concepts. Rather, they were part of Chinese intellectuals’ own attempts to grapple with social and cultural problems specific to China—an effort that was far from universally shared or accepted.
We see this rift between popular and legal understandings of homosexuality throughout the twentieth century, but one of the most striking cases occurred in 1991, when a man named Lin Jiabao in Anhui filed an official complaint against his daughter and her same-sex partner, accusing them of crimes of ‘tongxinglian’ and demanding their arrest. Unsure how to respond, the local authorities forwarded the case to the Public Security Department, which eventually issued a statement that became the first instance of a juridical interpretation of tongxinglian in Chinese law. According to the statement, tongxinglian had no legal definition in Chinese law and therefore the reported incident had no merit. In his analysis of the proceedings, Chinese legal scholar Zhou Dan (2009) argues that the significance of the Lin case lies less in what it reveals about the treatment of homosexuals than in what it demonstrates about law as a continual process of rhetorical suturing and articulation. Although by 1991 a social understanding of tongxinglian was already widely available, no corresponding legal understanding had been established in China. What the case hinged on was the possibility of weaving together two different discourses: a social understanding of homosexuality and its conspicuous absence in formal law. The two discourses collided in the dispute, exposing the incompleteness and incoherence of both models. Hence Zhou (2009: 183, 199) argues that both the plaintiff’s (Lin’s) efforts to connect his daughter’s relationship to the law and the authorities’ rejection of such connections are examples of ‘law as narrative’, which involves the construction of specific points of view, perspective, and focus.
Globalising the Histories of Sexuality
The fissures between legal and popular understandings of same-sex desire as well as the historically specific functions of legal categories such as* jijian* and liumang characterise the conditions of queer unintelligibility in China. The prevailing narrative of queer progress in China—marked by the so-called decriminalisation and de-pathologisation of homosexuality—relies on a set of assumptions shaped by Western liberal frameworks. These assumptions overlook the historical reality that homosexuality in China was neither explicitly criminalised nor pathologised in the same way as in Western contexts. Rather than direct persecution, the dominant mode of regulation has been one of erasure, in which queer existence has been rendered unintelligible through systemic denial. When questions of gender and sexuality are situated within the broader structures of global political economy, it becomes clear that these are not merely cultural or identity-based issues, but ones shaped by China’s entanglement with imperialist formations and uneven development—issues that I consider more fully in my 2023 book, The Specter of Materialism. A genuinely global understanding of queerness must move beyond the search for familiar milestones of legal recognition and instead attend to the structural conditions that render certain lives visible, liveable, or thinkable in the first place.
Acknowledgement
The author wishes to thank Wenqing Kang, whose work on the decriminalisation and de-pathologisation of homosexuality helped lay the groundwork for this essay, and whose guidance and conversations were instrumental in shaping its early ideas.
Featured Image: Selfportrait, Daniel Martin https://danielmartin.nl/
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