Preface 1

This book is a product of an extraordinary Workshop held in Shanghai，China，in January 2006，co-hosted by Fudan University’s School of Social Development and Public Policy and Yale University Law School’s China Law Center.The Workshop and this book are yet further examples of the strong linkages and cooperation between Yale University and Fudan University that have developed over the past decade，and that now encompass a wide range of activities that continue to yield great mutual benefit.

The January 2006 Workshop，all acknowledge，was a pioneering effort the first academic workshop to focus on issues of sexual orientation ever held in China.This topic remains somewhat sensitive in China，and public discourse about homosexuality is just beginning.The Chinese participants assembled by Fudan University were a diverse group of scholars，lawyers，and public officials.The participants assembled by Yale’s China Law Center were leading U.S.scholars from the fields of law， history，and sociology，as well as a distinguished judge from the highest court of Australia.The range of backgrounds of the participants on both sides was unusually broad，and allowed the discussion to be wide-ranging.The exceptional efforts to organize the Workshop by Professor Sun Zhongxin and lawyer Zhou Dan both important innovators in their fields of work made the Workshop’s success possible.

The essays and other materials collected in this volume reflect and to some extent expand upon ideas presented and debated at the Workshop.Publication of this volume will，we hope，itself encourage further research and debate.The foreign participants in the workshop concluded that we were present at an historic turning point in how homosexuality is viewed，treated and lived in China.

For the past few decades，efforts to promote greater respect，freedom，and equality for gay people has been one of the most significant civil rights developments in the United States and much of the world. This effort has been marked by a widening recognition that what is at stake is not just a person’s right to engage in certain private sexual conduct but，more fundamentally，a person’s identity.Because of the importance of sexuality to human nature，more and more people have come to see that when gay people are punished or forced by social attitudes to keep their sexual orientation secret，what is being suppressed or distorted is who they are not just what they do.Arguments for“gay rights”，therefore，are now understood to be arguments about being accepted and allowed to flourish as a human being，and about achieving fuller inclusion in a harmonious community of mutually respected and equal human beings.In addition，a link is often made between discrimination based on sexual orientation and discrimination based on sex，since each is typically premised on the view that a person’s behavior should conform to certain ascribed gender roles.

Resistance to recognizing basic rights for gay people has been weakening outside of China.Legal protections have been growing very significantly.Statutes punishing homosexual conduct have been declared invalid.See，for example，Lawrence v.Texas，539 U.S.558（2003）（Supreme Court of the United States）；Dudgeon v.United Kingdom，4 EHRR 149（1981）（European Court of Human Rights）；National Coalition for Gay and Lesbian Equality v.Minister of Justice（1998）（Constitutional Court of South Africa）.Statutes prohibiting discrimination based on sexual orientation have been adopted in many jurisdictions.But these changes in both the law and social attitudes have not come about easily.Many people have been raised with religious or moral attitudes that reject homosexuality and view it with disapproval or distaste.They see it as a threat to their children，to social institutions such as marriage and family，and to procreation indeed，at times they see it as a threat to their own identity.And so the debate goes on outside of China，particularly about whether homosexual relationships should receive recognition by the state through legal provisions allowing gay people to marry or at least to establish so-called civil unions that give them many of the benefits of marriage.

Given these world-wide trends，it is not surprising that this issue has begun to receive attention in China.To the foreign experts who traveled to Shanghai for the January 2006 workshop，the emergence of this issue as a matter of public discussion and debate in China is a fascinating as well as important development.It is particularly fascinating to a legal scholar like myself，who has taught and written about the efforts to address various types of discrimination in my own country.

What we are witnessing in China is the very beginning of public discussion about issues of sexual orientation and the rights of gay people and a discussion that takes place in the distinctive cultural context of China.At this preliminary stage，the challenges are fundamental ones：how to promote within the broader society a basic understanding，acceptance，and toleration of homosexuals so they can live more honestly，have more fulfilled lives，and develop a more secure identity.The obstacles to this are many，but they seem somewhat different from the obstacles that have existed in the United States and Europe.We have powerful organized religions that have long condemned homosexuality.China’s traditions are different，but the January workshop made clear that elements in China own traditions may have a somewhat similar effect especially Confucian ideals of filial obligation，which，among other things，create strong pressures to marry and produce children to carry the family line forward.

In the United States and Europe today，the main public debates concern the precise scope of legal protections that should be provided to gay people.In China，where the public debates are just beginning，the main issues are whether（or how）a basic understanding and acceptance of homosexuality can be developed within broader Chinese society，and whether（or how）gay people can live more honestly and openly.These two issues are obviously related.Greater openness develops where there is greater public tolerance.But it is also true that greater public tolerance develops where there is greater openness where a sufficient number of gay people have the courage to be more visible and honest and open. Openness makes clear that people with different sexual orientations are within our circles of affection and respect members of our family，friends，work colleagues，community leaders.Openness puts a human face on the issue that itself can promote greater tolerance.

A similar point can be made about legal protections in this area.On the one hand，it seems unlikely that legal protections for gay people will come about until there is greater openness by gay people and greater efforts by them to advance legal protections.On the other hand，legal protections themselves seem to be an important ingredient in encouraging more openness.This suggests that there may be reasons to prohibit discrimination based on sexual orientation even if there is little evidence that such discrimination currently exists.Discrimination may not be widespread because few gay people are open about their sexual orientation；the risks are too great.Thus the purpose of an anti-discrimination law may be to reduce the risks of openness rather than to abolish existing discrimination.

At the January workshop，the Chinese participants asked the foreign participants many questions about the research and experience in our countries concerning these issues.But for us，the presumed experts，the workshop was very much an education.What is happening in China，in this area as in so many others，is a complex story that in some respects is reproducing and in some respects is transforming the story in other societies.It was a privilege for us to participate in the workshop，and it is a privilege for us to join with our Chinese colleagues in the publication of this important book.

Paul Gewirtz　　

Potter Stewart Professor of Constitutional Law　　

Director，The China Law Center　　

Yale Law School　　

November 2006