Douglas Sanders
Introduction
The legal systems in the East Asian region discussed below (People’s Republic of China, Hong Kong, Japan, Mongolia, North Korea, South Korea, Taiwan and Vietnam) are all hybrids. They have local elements, and, in addition, colonial era borrowings from European or Russian models. As well, they now have laws or constitutional provisions reflecting the post-war development of international human rights standards.
Old criminal laws prohibiting male homosexual acts appeared, at times, in four jurisdictions. Today they survive only for the armed forces in South Korea (and perhaps the North as well). No other laws specifically target lesbians, gay men, bisexuals or transgendered individuals (hereafter LGBT). Taiwan, uniquely, has specific laws prohibiting sexual orientation discrimination in employment and education.
At least some gay bars, and other venues for LGBT people, function openly in the region, with the exception of North Korea. Public events, such as film festivals, seminars, and pride parades, are now possible, perhaps within strict limits, again with the exception of North Korea. Pride parades are not yet legally possible in mainland China, but 2013 saw successful indoor events in Beijing and Shanghai. The largest pride parade in Asia occurs each fall in Taipei. Hong Kong now has a ‘Pink Season’ including, in 2013, thirty-five public events, including a Mr. Gay Hong Kong pageant. The second ‘Viet Pride’ was held in Hanoi in August, 2013, with films, panels and a bicycle rally (instead of a parade). Non-governmental organisations (NGOs) exist focused on sexual orientation and gender identity (SOGI) issues, often helped by some outside funding, again with the exception of North Korea. UN agencies, such as the UN Development Program, have become active on LGBT issues, notably recently in China and Vietnam. Support from some Western embassies and cultural centres is now common.
With very minor exceptions, no laws give recognition to same-sex relationships, though the issue is currently under consideration in Taiwan and Vietnam (see Newton in this volume). Document change for transsexuals, altering the designation of ‘sex’ on identity cards, drivers licenses and passports, is possible in China, Hong Kong, Japan, South Korea and Taiwan, usually with strict conditions. With changed documents, marriage in the newly recognised sex is possible in those jurisdictions. Sex-reassignment surgery is available in many centres, and is sometimes covered by government health programs, after a medical diagnosis.
There are instances of LGBT or SOGI issues coming before the courts. Substantive decisions have occurred in court cases in at least Hong Kong, Japan and South Korea, sometimes supporting LGBT rights through positive interpretations of constitutional equality or privacy provisions. South Korea has an independent national commission on human rights, and it has been proactive on LGBT issues (but has recently faced conservative governments uninterested in change). More recently a commission was established in Mongolia, and supported the registration of the first LGBT non-governmental organisation (NGO) in the country.
In the past, some public spokespeople have denied the local existence of homosexuals. This has been true for China and for North Korea, but no longer. The official website of the Democratic People’s Republic of Korea recognises ‘that many individuals are born with homosexuality as a genetic trait’. They are to be treated with due respect. There is no repression of homosexuals, the website says, though the society rejects ‘many characteristics of the popular gay culture in the West, which many perceive to embrace consumerism, classism and promiscuity’ (UNDP 2010: 57-58).
Homosexuality was removed from the list of pathological conditions by medical associations in the United States and the United Kingdom in 1973, by the World Health Organisation in 1983, and by medical associations in many countries, including China in 2001. In recent years attention has been paid to laws affecting sex and gender diversity in Asia in the context of health programs responding to HIV/AIDS. A number of studies and consultations have addressed ‘men who have sex with men’ (MSM) and male-to-female transgenders, two high risk groups that had been unacknowledged in earlier approaches to HIV prevention (see Kawaguchi in this volume). We have a better picture of the legal environment in East Asia as a result of these studies, albeit from a particular health-focused perspective. The reports (APCOM 2010; UNDP 2010, 2011; UNAIDS 2012) are not based on new field research and do not refer to studies of local patterns of LGBT life, sex work, or law enforcement. Such locally informed studies are rare. Generally, we have to make do with the laws as written, judicial decisions, stated government policies, and scattered media reports of events. Specific stories often get cited as if they reflect a pattern, when they may be exceptional.