In an historic ruling, the U.S. Supreme Court has held that same-sex spouses are eligible for the same federal benefits—including immigration benefits—as heterosexual spouses. (I’ve blogged about it here.) Now, I’d like to explore what this means specifically for those applying for immigration benefits at the U.S. Embassy in Beijing and the U.S. Consulates in China that process visa applications, which are located at Chengdu, Guangzhou, Shanghai, and Shenyang.
It’s not possible to enter into a legal same-sex marriage in China. The Marriage Law of the People’s Republic of China explicitly defines marriage as the union between one man and one woman. Outspoken sexologist Li Yinhe has proposed amending the Marriage Law multiple times but has been unable to find sufficient support in the National People’s Congress to get marriage equality on the agenda. So my comments apply to couples married in the U.S. or third countries that will perform such marriages, none of which are in Asia.
This article focuses on how the legal and cultural environment in China impacts what couples need to do to prove that their marriage is valid, meaning entered into for purposes of sharing ones’ lives together, rather than merely for immigration purposes. (Hat tip to Dan Harris and Richard Burger for their recent post on Homosexuality in China.)
In many ways, the evidence needed will be similar to what heterosexual couples submit. See Top 10 List: How to Document Your Valid Relationship for Immigration Purposes.
But the legal and cultural environment poses challenges. , unfortunately, some same-sex petitioners and beneficiaries may have not disclosed their sexual orientation to their friends, family, employer, etc. meaning that a bona fide relationship might be hard to prove. No laws criminalize private consensual same sex activities between adults, according to the State Department, but other stigmas remain. The State Department says that “[d]ue to societal discrimination and pressure to conform to family expectations, most gay, lesbian, bisexual, and transgender (LGBT) persons [in China] refrained from publicly discussing their sexual orientation.” Harris and Burger point out:
it was only in 1997 that homosexuality was decriminalized in China [it was classified as “hooliganism”] and [2001 when] it was removed from the list of mental illnesses….
[But] homosexuality remains stigmatized throughout most of the country, partly because, as Fei Wang points out, it clashes with the long-held belief in China that children must marry and continue the family line by bearing offspring. Very few Chinese gays come out to their families, who cannot imagine their children not marrying…. Li Yinhe says an estimated 80 percent of gay men and women will engage in heterosexual marriage, a national tragedy that speaks to just how far China has to go before its gay population feels independent of a stigma that goes back several generations.
To this day, there are fathers who try to beat homosexuality out of their sons and doctors who “treat” homosexual desire with emetics and electroshocks. And there are gay people who take their own lives out of desperation, according to Spiegel Online.
For some, it might not be safe to openly admit they are gay or lesbian, much less identify a spouse. Luckily, for China’s LGBT community, there’s less risk of physical harm than in many other countries. “China’s attitudes toward gays is generally one of live and let live. As a country that is largely atheist, there is no religious notion of homosexuality being a sin or immoral. There is no ‘gay bashing,’” say Harris and Burger. Still, the State Department’s 2012 Human Rights Report points out that “[I]ndividual activists and organizations working on LGBT problems continued to report discrimination and harassment from authorities.”
One particular problem that some same-sex couples may have in proving the validity of their marriage is that they have previously entered into opposite-sex marriages. As Harris and Burger explain:
Thousands of Chinese gays have come up with a creative solution to meet their parents’ demands that they marry, while holding on to their gay lifestyle: it is becoming increasingly popular for gay men to marry lesbian women. This allows both spouses to satisfy their families’ annoying questions as to when they’re getting married. Then, they live separate lives, melting into the anonymity of the city with their parents and siblings never knowing the truth…. It’s an imperfect solution and it’s sad they have to go to such lengths, but it’s far better than marrying and having to pretend you care about a spouse who doesn’t interest you.
Couples that have previously entered into such sham opposite-sex marriages (although not for purposes of U.S. immigration benefits) may find it hard to convince a consular officer that their subsequent same-sex marriage is legitimate.
In other cases, a prior opposite-sex marriage may not have been a sham. For example, the person now seeking to immigrate may be bisexual, may not have identified as LGBT at the time of the first marriage, etc. Still, the prior opposite-sex marriage may pose challenges for proving that the new same-sex marriage is legitimate.
In sum, given the cultural and legal issues related to same-sex marriage in China, the State Department should focus on protecting the confidentiality and privacy of the applicants, especially in the context of a marriage fraud investigation. Also, the guidance should take into account that LGBT couples–unlike most heterosexual couples–may have difficulties in documenting the validity of their marriages.
Couples seeking immigration benefits should carefully document the “bona fides” of their relationship and insist that they be given a fair hearing by the U.S. Embassy or Consulate in China.