A Lawsuit Not Meant to Be Won, and a Few Gay People Who Refuse to Be Stigmatized

"I didn't think that hard about taking this case. Every group deserves to be understood."

A little after 3 p.m. on January 3, the lawyer Tang Xiangqian carried a stack of documents through the gate of the Beijing No. 1 Intermediate People's Court at No. 16 Shijingshan Road. The paperwork went quickly. He handed in the materials, had them stamped, paid the fee, and was given a receipt — a red-stamped People's Court Litigation Fee Receipt (First-Instance Settlement). Tang called his client, Xiaowu, who was in Shanghai, then photographed the receipt and sent it to the WeChat group he shared with Yanzi and Weiliang, setting off a round of cheers.

The receipt meant Xiaowu had become the second person in China to get a case docketed against SAPPRFT — the State Administration of Press, Publication, Radio, Film and Television — over gay rights. The first was the young director Fan Popo, who sued after SAPPRFT ordered his documentary Papa Rainbow taken down from video sites.

On June 30, 2017, an organization called the China Netcasting Services Association passed the General Rules on Content Review for Online Audio-Visual Programs. Article 8 states that "online audio-visual programs containing the following content or plot elements shall be edited or cut before broadcast; where the problem is severe, the entire program shall not be broadcast." The list includes content that "plays up filth, pornography, and vulgar, lowbrow taste ... depicting or portraying abnormal sexual relationships or behavior, such as incest, homosexuality, sexual perversion, sexual abuse, and sexual violence."

The next day, Li Yinhe objected on Weibo, arguing that the rules were seriously flawed from two angles: "The first is citizens' constitutionally protected freedom of creation. The second is the constitutionally protected sexual freedom of citizens who belong to sexual minorities." On July 9 she posted another piece, "Why We Should Abolish Censorship Entirely," after which Weibo banned her from posting for three months.

According to the association's website, its members include many of China's mainstream outlets and platforms: China Central Television, China National Radio, People's Daily Online, Xinhua Net, Tencent, NetEase, Youku, iQiyi. Its supervising government body is SAPPRFT.

"These rules carry no legal force. They only bind the association's members. But obviously, the association's members are all very important media outlets," Tang told QDaily.

I

When Yanzi and Weiliang saw the text of the new rules in their WeChat Moments, they were astonished, but they did not hesitate for long. Once they confirmed the news was real, they talked it over briefly with a lawyer friend, and that same day, June 30, they published an article on their own WeChat official account, "LGBT Rights Advocacy," titled "The Online Program Review Rules Discriminate Against Gay People — What Can You Do?"

Besides laying out the background, the article pointed out that "under the Regulations of the People's Republic of China on the Disclosure of Government Information, materials and documents a supervising body obtains or produces in the course of its oversight duties are government information that should be disclosed by law," and that "an administrative body must respond within 15 working days of receiving a request." It then listed ten pieces of information SAPPRFT was legally required to disclose — including whether the association that issued the rules "has legal-person status," the legal nature of the rules and the procedure by which they were drafted, and the legal basis for defining homosexuality as "an abnormal sexual relationship or behavior" — along with how to apply for disclosure, the steps involved, and a template application form.

After the article went out, forty or fifty readers filed disclosure requests with SAPPRFT and the association. On July 19, the replies began arriving. In short, SAPPRFT refused to release the China Netcasting Services Association's 2016 Annual Work Report, because the information "involves a third party's secrets, and the third party has not consented to disclosure." And since the association, not SAPPRFT, had drafted the rules, that question "does not fall within the scope of this bureau's duty to reply."

The applicants found the answer deflating. So on August 17, Yanzi and Weiliang published another piece, "SAPPRFT, Please Don't Just Fob Us Off," explaining that "an applicant who disputes the reply can write an Application for Administrative Reconsideration, and the reconsideration body must decide within 60 days of receiving it."

Only a dozen or so people went on to file for administrative reconsideration with SAPPRFT. On November 10, the 85th day after the applications were mailed, Xiaowu received SAPPRFT's Administrative Reconsideration Decision. The finding: "The reply was comprehensive and clear, the basis applied was correct, and the procedure was lawful ... the Notice of Government Information Disclosure issued by the respondent is upheld." The decision also noted that "if the applicant is dissatisfied with this decision, he may file suit with the People's Court within fifteen days of receiving this reconsideration decision."

Only four people were willing to sue. Xiaowu and Zhoushi were two of them. Yanzi went to Wang Zhenyu of the Beijing Yipai Law Firm — the lawyer who had handled Fan Popo's case — and asked him to bring in his friend Tang Xiangqian to represent the pair. Two other lawyers, one in Shanghai and one in Heilongjiang, took the remaining two plaintiffs.

On November 25, Xiaowu drafted an administrative complaint himself, with 11 demands, and mailed it to the Beijing No. 1 Intermediate People's Court. Under Beijing's rules on which court hears what, SAPPRFT sits in Xicheng District and should fall to the Beijing No. 2 People's Court. But a 2013 document from the Beijing High People's Court states that "first-instance administrative cases involving national ministries and commissions headquartered in Xicheng District shall still be heard by the No. 1 Intermediate Court."

Xiaowu and Tang may also have been holding on to a sliver of luck. In 2015 the Beijing No. 1 Intermediate People's Court had accepted both the gay director Fan Popo's suit against SAPPRFT over the removal of Papa Rainbow and, that same year, the suit brought by "Qiubai," a female university student in Guangdong, against the Ministry of Education over textbooks that stigmatize homosexuality. Fan Popo had even won.

On December 4, Xiaowu was the first to receive a Notice of Case Acceptance from the Beijing No. 1 Intermediate People's Court, telling him that "the case-filing materials are complete and meet the requirements for docketing." On January 3, Tang finished the remaining formalities for him in Beijing.

That was 187 days after the General Rules on Content Review for Online Audio-Visual Programs came out.

II

Xiaowu wears black-framed glasses, keeps his hair buzzed short, and laughs easily. At ShanghaiPRIDE last June he was photographed waving a rainbow flag as he crossed the finish line, and the picture became the cover image on a number of foreign reports about the event.

On the afternoon of January 3, when Tang's call came, Xiaowu felt a rush of happiness but did not show it and did not celebrate. He sent the news first to a WeChat group with Yun and Joy — Yun founded the official account "Heji Lifestories" and had interviewed him the previous August, just as he was mailing off his reconsideration application; Joy is a friend he met at a Meetup event — then put a photo of the receipt on his Moments, captioned: "See you in Beijing!"

When he posted it, he took care to hide it from his coworkers. Xiaowu is 30 this year and works in HR at an internet company in Shanghai. He does not think his colleagues are friendly toward gay people: "They often make unkind jokes, like loudly saying some coworker is neither male nor female."

Xiaowu is called Xiaowu — Little Five — because he was number five both at home and in his college dorm. He was born in Shanxi to a family that was not well off, with four older sisters, and he was driven. Illness cost him a year of high school, which he repeated; he tested into a junior college, then into an English bachelor's program at a university in Shanghai, and during his eight working years in Shanghai he also pursued a graduate degree in business management on the side. Five days after the case-filing notice arrived, he learned he had passed the intermediate economist qualification exam.

He realized he was attracted to men in high school. He was closest then to his desk-mate; the two walked to and from school together, sat through class together, ate together. His desk-mate liked to throw an arm around him, cheek against cheek, which threw Xiaowu into a fluster. Classmates joked that the two of them were "glass," the slang of the day for male couples.

To work out what was happening to him, Xiaowu found a sex-education textbook and read it in secret. It said liking the same sex was a perversion and had to be corrected. So he tied a rubber band around his arm and, whenever the thought came, secretly pulled the band and snapped it against his skin; if he had forgotten to put it on, he pinched himself instead. "It did nothing at all," he said with a wry laugh over the phone. "It wasn't until college, when I joined a gay student group on campus, that I realized that textbook was poison. But back in high school the internet wasn't developed. You had no other way to understand what was going on with yourself, so you thought you were the only person in the world like this."

Over the winter break of his freshman year, Xiaowu decided to come out to that closest high school desk-mate. Running into another classmate on Jack'd, a gay dating app popular at the time, while he was home in Shanxi made him bolder. He came out by email: he wrote a draft on paper, typed it again in the mail window, and clicked send very carefully. The reply was slow in coming. After a few text messages back and forth, it arrived: "Let's not be in touch anymore." Xiaowu then found his phone number and his QQ had both been blocked.

He is in the habit of clearing out contacts and deleting chat logs. Even so, he still remembers that person's QQ number. "Part of me hopes he'll see this story, and that one day we can make peace."

In 2014, after another relationship petered out, Xiaowu decided to come out to his family. "Maybe it was a little selfish. I really didn't know who else to tell about the pain." He had always been attached to home; for a while he called his parents every day, sometimes talking for two or three hours. He also could not accept a sham marriage with a lesbian, and thought marrying a straight woman would be immoral. "Coming out to my family was the only option."

As before, he sat at home in Shanghai for hours and typed a two-page A4 draft, explaining point by point what homosexuality is, how he had come to understand himself, and where the law and scientific research on homosexuality stood in China and abroad. When he called home, his sister picked up. The "coming out" turned into a family war. His parents said nothing; one of his sisters called him a "pervert."

"After that, every time I heard some country had legalized homosexuality, I'd call home right away to tell them."

His father and eldest sister softened. The rest let the subject drop after his mother fell ill and took to her bed. They once went with Xiaowu to a meeting for parents and friends of gay people in Xi'an, where many parents spoke. His father, normally talkative, was silent throughout — but Xiaowu felt that his willingness to come at all already counted as acceptance. He also thinks his family's acceptance was the most important step in accepting himself. "The reason I kept this appeal going for half a year, and was willing to expose myself, is that I'm fairly settled with who I am — probably much more than a lot of gay people. Some are still fighting themselves."

Just as he did every time he braced himself to come out, Xiaowu expects little from the case now that it has been docketed. He keeps his expectations low and keeps acting anyway. "Winning or losing isn't what matters. What matters is that this case gets people outside the gay community to pay attention, instead of us just cheering ourselves on inside it. Go to a few events and you can get the illusion that equal rights have already been won, but read the rules and you may realize that isn't true. People should be told that we haven't given up on our rights, and that they shouldn't give up either."

The day he spoke to QDaily was a Sunday. Winter rain fell on Shanghai all day and Xiaowu did not go out. The moment the appointed hour arrived, he sent a punctual WeChat message: "Waiting for your call haha." He could recite the exact repost, comment and like counts on the post about the case from "QAF China," the Weibo account of a gay film and TV subtitling group: "48,741 reposts, 3,217 comments, 50,640 likes." But he was a little disappointed that no mainstream outlet had reported it and no big social-media voices outside the gay community had spoken up.

On January 7, through contacts Yanzi found, three English-language outlets ran stories: the Global Times English edition, the Daily Mail and The Hollywood Reporter. At home, only one or two official accounts carried translated versions. "Queer Film" also came and did a short interview, but nothing has come of it since.

III

The instant Tang Xiangqian posted the court's filing receipt in the group, Yanzi opened it. He could not contain himself and sent cash red envelopes to several volunteer groups. "I needed some outlet to let it out."

Yanzi runs the "LGBT Rights Advocacy" account mentioned above. That he reacted to the rules so fast, and thought immediately of pressing his claim through the law, has to do with his own history. On December 19, 2014, China's "first gay conversion therapy case" was decided for the plaintiff at the Beijing Haidian District Court. Yanzi was that plaintiff.

Yanzi is from Guangzhou. In February 2014 his family heard that an outfit in Chongqing called the Xinyu Piaoxiang Psychological Counseling Center could perform "gay conversion therapy," and pressed him to go. "I didn't believe he could cure it, and I didn't want to be cured, but refusing felt a bit unfilial, and I also wanted to see for myself what this so-called electroshock treatment was like," he told ifeng.com in a 2014 interview.

The Xinyu Piaoxiang Psychological Counseling Center sat in a commercial building. Before going in, thinking that he was somewhere unfamiliar and had heard he might be shocked, Yanzi got a little scared, so he switched on the voice recorder on his phone and slipped it into his pocket. A price list hung above the front desk. The last line on it was treatment for homosexuality, and it was the most expensive item: other counseling ran three or four hundred yuan an hour, while treating homosexuality meant five courses of six sessions each, 30,000 yuan in all.

A man in charge named Jiang Kaicheng took him to a small room. Yanzi described it as a room set up for hypnosis, with cushions, a sofa, a bed, and some very New Age paintings on the walls. Jiang had him lie on the sofa bed, relax for 20 minutes, then imagine a scene of having sex with another man, and move a finger if he had any physical or mental reaction. Each time Yanzi moved his finger, Jiang shocked his arm with an electrotherapy device. He also gave him pills that induce vomiting.

"He said that in ordinary treatment, that whole process would be repeated three to four times every session ... He had five courses, six treatments to a course, 30 treatments in all, three to four shocks per treatment, so all told you'd be shocked about 100 times. I thought, how could that possibly work? All those shocks would probably leave you with mental problems, not turn you straight," Yanzi told ifeng.com.

Back in Guangzhou in March 2014, Yanzi learned that many other people had been sent for the same treatment, and he took Xinyu Piaoxiang and Baidu to court. On July 31, the Beijing Haidian District Court heard the case for four hours; on December 19 it ruled in his favor, ordering Xinyu Piaoxiang to pay him 3,500 yuan for emotional distress.

For the last hearing, Yanzi bought a gold statue of the Goddess of Justice on Taobao and stuck a small rainbow flag in beside it, meaning to give it to the judge. Court rules kept him from handing it over, but he has kept it ever since. At the talks he gave just after winning, he brought the statue along — "a symbol of the Goddess of Justice raising a rainbow flag in China for the first time, of justice standing on our side."

The case introduced Yanzi to a number of gay-friendly lawyers. It was also how he came to found what became LGBT Rights Advocacy, which took on the Beijing Yipai Law Firm as its legal counsel. Four times a year they run lawyer training sessions together in a few first- and second-tier cities, putting gay people and lawyers in direct conversation. Litigation is not only an important tool for defending rights; where media channels are limited, it is also one of the main ways to draw attention and spread a message.

"For the past few years we've been advocating on depathologizing homosexuality and on employment discrimination. We took the rules case mainly because media censorship is one of the main roots of discrimination against gay people. Discrimination exists because people don't understand. Growing up, none of us had any access to gender-diversity education that covered gay people, and you don't see that information on television or in the media either, so the public never gets a chance to understand sexual minorities. Now the rules put this kind of discriminatory censorship in writing, which is bound to deepen public discrimination against sexual minorities, so we had to do something in response," Yanzi told QDaily.

As he spoke he was on a business trip in Wuhan, running the first lawyer training of 2018.

IV

Before he handed in the materials, Tang Xiangqian, ten years into practice, was already fully confident the case would be docketed: "By law, filing is no problem." What worried him was the outcome — "winning will be quite hard" — and he and Xiaowu had already prepared for a second-instance appeal.

By rule, the Beijing No. 1 Intermediate People's Court must issue a first-instance judgment within three months of filing, that is, by April 2, and a second-instance judgment within two months after that. Both deadlines can be extended in special circumstances.

This is the first LGBT-related case the 38-year-old Tang has worked on. He started as a labor lawyer, entering the field after the new Labor Contract Law took effect in 2008, but he studied other areas too, touching on real estate, food safety and charity. From 2012 he also began taking on cases involving migrant workers defending their pay and other vulnerable groups. As with the rules case, that work was almost always free.

The best-known case Tang has been part of is the 2014 case of "Li'er Chaisi." Li'er Chaisi, whose real name is Yang Xiuyu, founded Beijing Erma Tianxian Culture Communication Co., Ltd. in 2006 and helped engineer online marketing stunts and internet celebrities including "Tianxian Meimei" and "Gan Lulu"; "Qin Huohuo" was one of his employees. In 2014, Yang Xiuyu was sentenced to four years in prison and fined 150,000 yuan for "illegal business operations."

Tang is glad to explain why he took it. "A lawyer takes a case not to exercise some sense of justice or morality. First, until the verdict is announced it isn't settled whether this person did wrong; he isn't a criminal yet, only a suspect. Second, I'm defending the person, not defending his wrongdoing. My job is to set out the reasoning, let the public hear it, and see that he is treated fairly."

In March 2016, Tang began attending senior-lawyer exchange sessions organized by the Beijing Yipai Law Firm. "Yipai" is a transliteration of "Impact." The firm concentrates on tobacco control, LGBT issues, disability, the environment and migrant workers, with different lawyers assigned to each line. It was at those sessions that Tang met Yanzi and Wang Zhenyu, the lawyer on Fan Popo's case, and started dealing with the LGBT community.

"I knew nothing about LGBT before. Only after getting involved did I learn there are distinctions like gay men and lesbians, biological sex and social gender — distinctions people inside the community aren't always clear on themselves," Tang said. "Compared with migrant workers, the gay community's legal demands are very different too. Migrant workers care more about individual interests, like whether they can get their wages. Gay legal advocacy comes down in the end to one thing: getting more people to understand this group."

Tang thinks the gay community is skilled at using the law to voice its demands and at getting the word out, but that there still aren't many "gay-friendly lawyers" — "Judging by who turns up at events, a few dozen at most." Because Chinese law contains no provision that clearly defines or protects gay rights, lawyers work with gay clients to design routes through the laws that do exist: same-sex marriage, employment discrimination, the rights of people with HIV, textbooks that stigmatize gay people. So far the real wins have been few. Qiubai's suit against the Ministry of Education and Hunan's first same-sex marriage case both ended in defeat.

And in Yanzi's "first gay conversion therapy case" and Fan Popo's "first case of a gay person suing SAPPRFT," the victories may exist more on paper than anywhere else. The Xinyu Piaoxiang Psychological Counseling Center is still in business, and Fan Popo's Papa Rainbow still has not gone back up on any video site.

But Tang's view is much like Yanzi's and Xiaowu's: the point is not winning, it is the discussion and attention the process of appealing can generate. "Gay people's awareness of their own rights is fairly strong, but people outside the community don't understand. I didn't think that hard about taking this case. Every group deserves to be understood."

(Xiaowu, Yanzi, Weiliang, Zhoushi, Yun and Joy are all pseudonyms.)

Cover image: a still from the film Call Me by Your Name and the Goddess of Justice statue; other images courtesy of the "LGBT Rights Advocacy" WeChat official account.