Equality, dignity, and social harmony: exploring the rationales and models for recognizing same-sex relationships in law

• Author: David Bilchitz
• Pages: 407-432

FRONTIERS OF LAW IN CHINA

VOL. 11 SEPTEMBER 2016 NO. 3

DOI 10.3868/s050-005-016-0023-6

FOCUS ONE

LGBTI RIGHTS AND LEGAL REFORM: A COMPARATIVE APPROACH

EQUALITY, DIGNITY, AND SOCIAL HARMONY: EXPLORING THE RATIONALES

AND MODELS FOR RECOGNIZING SAME-SEX RELATIONSHIPS IN LAW

David Bilchitz*

Abstract One of the major changes that has taken place over the past twenty to thirty

years has been the extension of the legal recognition and protections for same-sex

relationships in a wide range of countries. A number of jurisdictions, including China,

are considering the approach that they will adopt. This article seeks firstly to consider

the justifications for the legal recognition of same-sex relationships by the state. Three

main, compelling rationales are identified which are rooted in notions of the equality of

all persons, the dignity and liberty of individuals to form close personal relationships,

and the social benefits of recognizing close, personal relationships of same-sex couples.

The second part of this article then turns to consider the manner in which same-sex

relationships should be recognized. Four models are identified: a “Partial Rights” model;

a “Civil Partnerships” model; a “Marriage Equality” model, and a “Diversity of

Relationships” model. Reasons for and against these particular models will be examined.

In the conclusion, it shall be argued that the choice of model that has been adopted can

be seen to depend on a number of factors: the manner in which equality is conceived in

that society; the understanding of same-sex relationships therein, and the religious and

cultural opposition to same-sex relationships in that society. The models are also not

states of affairs that are fixed for all time and many countries have progressed from less

* David Bilchitz, Ph.D, University of Cambridge; Professor of Human Rights and Constitutional Law,

University of Johannesburg, South Africa; Director, South African Institute for Advanced Constitutional,

Public, Human Rights and International Law (SAIFAC), a center of the University of Johannesburg;

Secretary-General, International Association of Constitutional Law. Contact: davidb@saifac.org.za

The author would like to thank the Human Rights Center of the Renmin University of China for

partnering with SAIFAC to run a very successful first conference in China on “LGBTI Rights and Legal

Reform: A Comparative Approach.” The author hopes further collaborations on this topic will be possible.

This article was presented as part of this seminar and the author is grateful for participants for their comments

and to JIANG Dong for the encouragement to publish it. The author is also grateful to the Dean of Renmin

Law School, Prof. HAN Dayuan, Prof. LU Haina, and Dr. LI Ruiyi for their support of this important project

and collaboration as well as their generous hospitality to all the international presenters who came. The author

would also like to thank Meghan Finn and Raisa Cachalia for research assistance in the preparation of this

article.

408 FRONTIERS OF LAW IN CHINA [Vol. 11: 407

extensive forms of recognition to wider recognition over time. Ultimately, it shall be

argued that the rationales underlying the recognition of close personal relationships in

the law support the “Marriage Equality” model or the “Diversity of Relationships”

model. This article thus seeks to provide an understanding of the rationales and models

for recognizing same-sex relationships that have been adopted around the world: Its

focus is thus comparative but may, in this way, be useful to lawmakers and advocates for

legal reform in this area in China and other jurisdictions around the world.

Keywords same-sex relationships, marriage, human rights, equality, rationales, models,

China

INTRODUCTION .................................................................................................................... 408

I. THE WHY QUESTION: RATIONALES FOR THE PROTECTION OF SAME-SEX

RELATIONSHIPS....................................................................................................... 410

A. The Equality Argument....................................................................................... 411

B. Dignity, Family Life, and Freedom..................................................................... 414

C. Social Benefits.................................................................................................... 416

1. Social Stability ...............................................................................................417

2. Children.......................................................................................................... 417

3. Duties of Support ........................................................................................... 418

4. Efficiency of Social Organization.................................................................. 418

5. Social Harmony.............................................................................................. 418

6. Reducing Discord amongst Families.............................................................. 419

7. Reducing Coercion into Heterosexual Marriages and Its Consequences....... 419

II. THE HOW QUESTION: DIFFERENT MODELS OF RECOGNITION............................... 420

A. The “Partial Rights” Model.............................................................................. 421

B. The “Civil Partnerships” Model....................................................................... 422

C. The “Marriage Equality” Model ......................................................................424

D. The “Diversity of Relationships” Model........................................................... 428

CONCLUSION........................................................................................................................ 430

INTRODUCTION

“The institutions of marriage and the family are important social institutions that

provide for the security, support, and companionship of members of our society and bear

an important role in the rearing of children… The importance of the family unit for

society is recognized in the international human rights instruments referred to above

when they state that the family is the ‘natural’ and ‘fundamental’ unit of our society.

However, families come in many shapes and sizes. The definition of the family also

changes as social practices and traditions change. In recognizing the importance of the

family, we must take care not to entrench particular forms of family at the expense of