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Domestic Advocacy and International Law: Fighting “Gay Conversion Therapy” in China

February 26, 2018

 

Despite the fact that same-sex attraction was declassified as a mental illness by the Chinese Psychiatric Association in 2001, many LGBTQ people in China continue to be subjected to the dangerous and discredited practice of “gay conversion therapy” (扭转治疗). As has been documented on this blog and elsewhere, LGBTQ rights activists in China have relentlessly pursued any number of legal advocacy efforts to reduce the harms caused by this procedure, from lobbying relevant government departments to filing — and winning — lawsuits against conversion therapy practitioners.

 

Chinese rights advocates have also succeeded in placing this issue on the international human rights agenda. In a landmark 2015 hearing at the United Nations Committee Against Torture (CAT) in Geneva, Chinese advocates submitted information and testimony that, for the first time, caused Chinese government representatives to be held to account in an international legal setting for failing to take action against a cruel and degrading practice that continues to harm the well-being of China’s LGBTQ community. In so doing, these advocates followed in the successful example of a coalition of Chinese community-based groups promoting the rights of lesbian, bisexual, and transgender (LBT) women and girls who were similarly able to have their specific issues addressed during the review of China’s performance under the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2014. Anti-conversion therapy advocates from the U.S. had also brought the practice into the jurisdiction of the CAT during the U.S. review in 2014. However, despite this precedent, the road to China’s 2015 CAT hearing in Geneva was far from smooth, and illustrates the incredible challenges Chinese LGBTQ advocates face at every step when they seek to engage international legal mechanisms—from deciding to approach the UN in the first place to translating international success into meaningful domestic action.

 

From the beginning, advocates hotly contested what they stood to gain by bringing the issue of conversion therapy before the CAT, particularly given the political risks of doing so. The CAT is a body of 10 independent experts who are responsible for monitoring the implementation of the United Nations Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (“the Convention”) by those countries that have ratified it. China ratified the Convention in 1988, and since then, has been required to submit regular reports to the CAT on how it has taken steps to end torture and other abuses as defined in the Convention. This state report is supplemented by written and oral reports from Chinese NGOs and other groups, called “alternate reports” or “shadow reports,” which often paint a very different picture than the one advanced in the state report. Every approximately four years, the CAT examines state and alternate reports and records its findings and recommendations in their own non-binding document called “concluding observations” (结论性意见). The questions before Chinese LGBTQ advocates was thus whether submitting an alternate report on conversion therapy in the hopes that the CAT would include the issue in its concluding observations, thereby to some degree highlighting the responsibility of the Chinese government to respond to the issue, was worth the risk of inciting government backlash.

 

This risk was unfortunately very real. The Chinese government has been widely known to persecute advocacy groups that submit unflattering information about China to the CAT and other human rights treaty bodies. Beyond possible reprisals against individual advocates or groups, some also feared that appealing to the CAT could reduce the government’s willingness to cooperate in addressing the issue wholesale, turning government agencies from a reluctant to hostile parties in ongoing domestic advocacy efforts.

                       

If the perils of elevating this issue to the international level were clear, so were the potential rewards. Though CAT reports are not legally binding, they are high-profile, and international media and advocacy groups pay close attention to their findings. Further, given that CAT reviews tend to revisit issues identified in prior concluding observations, there was also the possibility that the Chinese government would take direct action against conversion therapy, if only to demonstrate compliance during future hearings. However, neither result was guaranteed, and there was a distinct possibility that  even if advocacy groups did submit reports about conversion therapy in China to the CAT during its 2015 review, they would have little to show for it.

 

After extensive consultation with domestic and international advocacy organizations, a few individual advocates took the lead in moving the process forward. To reduce the political risks, they anonymized their contributions by working with intermediary organizations to submit an alternate report and present testimony to the CAT members in Geneva. After making the case as strongly as they could through these means, LGBTQ advocates could only wait and see if their presentations had been sufficiently compelling to push the topic of conversion therapy into the oral exchange of questions and answers between CAT members and Chinese government representatives, which would determine the content of the concluding observations.  

 

In the end, during the final round of oral questions, one CAT member did bring up conversion therapy—and even more unexpectedly, a representative from China’s Ministry of Justice directly responded. Their exchange appears below:

 

Ms. Felice Gaer (Vice-Chairperson of the Committee): My final question deals with question 38b, which asks for more information on the practice of clinics offering gay conversion therapy. We have been told that these clinics exist in facilities across the country, run by the government as well as private ones, that there are 14 in Beijing alone, that they administer electroshocks to LGBT patients, and in some cases these people are detained at psychiatric facilities...Have there been any actions by the government to investigate these practices, put an end to them…?

 

Yang Jian (Ministry of Justice): As to the issue of LGBTI, mentioned by Madam Gaer and Madam Mallah. China does not view LGBTI as a mental disease or require compulsory treatment for LGBTI people. They will not be confined in mental hospitals either. Indeed, LGBTI people face some real challenges in terms of social acceptance, employment, education, health, and family life. This deserves our attention, but this does not fall within the scope of the Convention.”

 

This statement was deeply meaningful for the Chinese LGBTQ advocates working to end conversion therapy. It marked one of a handful of times that Chinese government representatives have formally recognized the struggles of the domestic LGBTQ community in an international legal setting, and further, that the government had some kind of responsibility to respond. While far from legally binding, or even satisfying in the eyes of many anti-conversion therapy advocates, it was still encouraging. In another promising development, conversion therapy was included in the CAT’s concluding observations for Mainland China, and included recommendations on the issue of gay conversion therapy. International media and advocacy groups were galvanized to give the issue more coverage and attention than it had previously. While the domestic battle was far from over for LGBTQ advocates in China, there was now at least reason to believe that international law and public opinion on this topic was on their side, and perhaps even more significant, that the Chinese government might be willing to take steps to work with them.

 

In the years following the 2015 CAT hearing, LGBTQ advocates have continued to work tirelessly in opposition to conversion therapy. While there have been no widespread government reprisals stemming directly from the submission of the alternate report, advocates must still thread through a complex and constantly shifting political backdrop. The lack of hard enforcement mechanisms for the CAT concluding observations also means that advocates must rely primarily on their own innovative strategies to push the issue forward. Nevertheless, the international media and political attention sparked by this episode, as well as the symbolic significance of having the Chinese LGBTQ community once again be heard on an international stage, may well provide inspiration for other groups in their future work to advance human rights in China.

Siodhbhra Parkin is a human rights advocate. She is currently a Fellow at PILnet: The Global Network for Public Interest Law and a former Fellow at the Yale Law School Paul Tsai China Centre. Siodhbhra spent three years at the American Bar Association Rule of Law Initiative in Beijing, where she worked with Chinese civil society groups, law schools, and legal professionals on a range of international legal development projects. She has also worked on projects that promote LGBT rights and support survivors of domestic violence in China.  She holds a LL.M in Chinese Law from Renmin University in China, and advanced degrees from Harvard University and the London School of Economics and Political Science. She tweets @harvardian. Image credit: CNN.

 

 

 

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