Ben Capell & Sherif A Elgebeily. Sexuality & Culture. Volume 23, Issue 3, September 2019.

Introduction

The development and success of social movements and activism has been the subject of academic research for many years. At the same time, the rights of sexual minorities have been at the forefront of human rights discourse and advancement made by international organisations such as the United Nations. In some countries, the legislature has also contributed to progress of equal rights for sexual minorities. The right to equality as it relates to sexual orientation—for example marriage equality, freedom from workplace discrimination, and impartiality in the provision of state benefits—has made strident advances in recent years in the West; in particular the United States, Canada and countries within the European Union have demonstrated a trend towards increased legal protection for gays and lesbians.

However, most research on the impact of activism as it relates to sexual equality has been conducted in the context of Western democracies, leaving the phenomenon of activism in other regimes and regions relatively underexplored (Chua). As a result, comparative studies concerning the emergence of social grassroots activism, especially in the non-Western context, have been relatively scarce so far. This has led to a limited scope of academic literature concerning the way in which such movements develop the driving factors behind their success or failure. There is a dearth of analysis on gay and lesbian movements within the Asian region, which has been recently evolving to implement measures in accordance with the rule of law, including equality before the law and respect for human rights. Particularly lacking is a focus on how the rights of these sexual minorities might provide an opportunity to explore activism in Asia concerning a topic that has different religious, historical and political connotations in different jurisdictions. Understanding these movements in Asia is of primarily regional importance, but also provides opportunities to learn how overseas advocacy movements have impacted upon domestic legislation in Asian nations—the “knock-on effect”—as well as what factors have been integral to the success or failure of promoting equality in the selected jurisdictions.

This article enters into a comparative analysis of advocacy efforts of minority rights groups in Asia through a gay and lesbian lens, examining and juxtaposing the development and success of gay and lesbian activism in Asian jurisdictions. The authors have chosen the five jurisdictions of People Republic of China (PRC), Hong Kong, Malaysia, Singapore and Taiwan, which all vie as Asian capitals of business. Singapore, Hong Kong, and Taiwan are three of the Four Asian Tigers that share a common majority ethnic Chinese heritage with China; the inclusion of Malaysia as the capital of the sole South East Asian country with an official Muslim state religion offers an alternative to the majority Buddhism, Taoism, and Confucianism of the four other cities, and one that is typically opposed to gay and lesbian rights. These five jurisdictions also present a Venn diagram of historical, political, social and religious similarities and distinctions. In identifying and juxtaposing these background factors, the authors are able to highlight the extent to which each has had a significant influence on the development and success of activist efforts.

From the examination of these jurisdictions and their wider contexts the authors hope to generalise more broadly about the status of gay and lesbian rights in each country and to identify barriers to equality that the communities face. The article adopts as an underlying assumption that beyond constitutional guarantees of equality, protection of human rights depends on a hybridity of factors, including political and social indicators; these are expected to have important implications for movement-building and advocacy efforts going forward. The authors have therefore opted to examine both the national and federal laws that apply to each jurisdiction. For the purposes of this article, the authors have also opted to address Hong Kong as a separate law-making entity with its own political identity. In this way, the article discusses jurisdictions through the medium of countries or administrative regions and aims to examine the real-world environment of advocacy and activism taking into account context, political impact factors, and the feasibility of progressive legislative advances.

With the aim of providing a comparative view, “The Legal Status Quo” section briefly outlines the methodological framework of the article and provides a concise overview of the legal status in the different jurisdictions. In “Factors facilitating and hindering progress towards gay and lesbian equality” section, the authors identify pertinent comparative background information on the different jurisdictions, with a view to examine similarities and discrepancies that might assist in explain similar or different approaches of each one. “Activists Ability to Capitalize on Key Events” section examines the ability of activists to capitalize on key events, identified as having significant impact on the development and success of activism efforts. “Discussion” section of the article provides an evaluative discussion, analysing the common success factors in order to discern potential steps and milestones that can be shared or transposed across jurisdictions. The article ends with conclusions and recommendations.

The Legal Status Quo

Of the five case studies, the sole jurisdiction that has never criminalized homosexual activity is Taiwan, and following a 2017 court rule, it is also the only country in Asia where the courts recognize same sex marriage (Dittrich). Three others—Hong Kong, Singapore and Malaysia—share the common historical legal context of a British colonial rule that criminalized homosexuality under Section 377 of the 1860 Indian penal code. While Hong Kong decriminalized homosexuality in 1991, both Singapore and Malaysia still have laws criminalizing homosexuality. Moreover, in Malaysia the criminal code is supplemented by a variety of religious Sharia laws—enforced by the constitutionally-enshrined Syariah Court—and the moral police with the power to arrest homosexuals (Williams). In contrast to these former British colonies, homosexuality in the PRC was historically criminalized under the aegis of a law against hooliganism, punishable by imprisonment of up to 7 years. Originally directed towards behaviours considered anti-social, the law was repealed in its entirety in 1997, amounting to the decriminalization of homosexuality in PRC.

Data Collection and Methods

As this article addresses issues bridging the legal and social sciences fields in 5 different jurisdictions, the authors have relied on a case-focused, study-based approach with supporting media accounts to provide a contemporary comparative account. The study involved comprehensive academic literature research; however as existing academic writing on the topic of gay and lesbian rights in Asia—particularly in Malaysia and the PRC—was found to be sparse, the research was extended to include additional sources. Academic literature was therefore supplemented by content from international agency reports, journalistic pieces, official government information, court judgments, publications by gay and lesbian associations, book reviews, and published interviews and documentaries. The extension of the data pool to include these sources proved useful, notably within the framework of the dynamic and recent developments in the area of sexual minority rights.

A Brief Overview of Legal Progress

The path towards equality has taken a very different route in each of the five jurisdictions chosen for this article. In Taiwan, a vivid democracy since the lifting of martial law in 1987, activists have been able to make gay and lesbian rights part of the mainstream political agenda (Gerber; Chu). Progress towards equality has been achieved mainly via legislative changes, such as the Gender Equity Education Act (2004) and the 2007 amendments to the Employment Service Act and the Gender Equality in Employment Act. Recently, following a 2017 Supreme Court ruling, the Taiwanese parliament was instructed to amend existing laws or pass new legislation to comply with the ruling (Dittrich). However, results of a recent referendum opposing gay marriage is now challenging such resolution (BBC).

In Hong Kong, progress has been mostly limited to non-legislative mechanisms and court-led reforms. The Hong Kong judiciary has developed into a major battleground in the struggle for citizenship rights (Chan), and there have been various successful legal challenges to the government drawing on existing legislation (Kapai). An accumulation of court rulings has secured equal treatment in various important domains, including matching the legal status and age of consent of homosexual sex to that of heterosexual sex, normalizing media approaches to gay and lesbian-related material, and lately forcing the immigration department to furnish a spouse visa to the wife of a lesbian expatriate married overseas (Ng).

In the PRC, however, any attempted legal acceptance of homosexuality is invariably a non-starter: despite 10 years of citizen petitions for same-sex marriage and legal protection, the Chinese government has yet to respond with a public statement (Speelman). Some meaningful steps towards equality have been made in relation to private enjoyment of sexual freedoms, but only at the regional and provincial level and none recently: the expansion of police powers to protect gay and lesbian partners from domestic abuse in Zhejiang Province and Changchun city (China LGBT Rights Initiative), or the non-legally binding 2010 same-sex marriage in Jiangsu (The Global Times).

In Singapore, both the political and judicial systems tend to favour maintaining the status quo and, accordingly, there has not been any legal advancement. Under the Public Order Act 2009, outdoor public processions and assemblies are banned without prior permits; online journalism is restricted by virtue of the Broadcasting Act, which requires registration of all outlets discussing domestic political issues; and the Newspaper and Printing Presses Act requires local newspapers to renew their registration annually. Though these restrictions upon freedom of expression extend far beyond gay and lesbian rights, together, they give an indication of the tight parameters within one can discuss such a sensitive and controversial issue as the rights of same-sex relationships. In 2014, the Supreme Court of Singapore found that Section 377A did not infringe on the plaintiffs’ constitutional rights to equal protection, or rights to life and liberty. The judgment held that it would be beyond the Court’s jurisdiction to change legislation (Human Rights Watch). Finally, in Malaysia, there seems to be little hope for progress in sexual minority rights. Though a democracy with popular election, the Islamisation of politics has created a difficult context for making any legal progress towards equality (Shah; The Guardian).

Factors Facilitating and Hindering Progress Towards Gay and Lesbian Equality

There are a variety of factors that have facilitated or hindered progress of gay and lesbian rights in these five jurisdictions. The following section highlights two main factors that were found to impact activists’ efforts and success: the respective political systems, and religious and cultural contexts. Through the lens of resource mobilization theory (McCarthy and Zald) these two factors represent resources available to gay and lesbian activists. The greater political freedom and society openness to same-sex relationship, the more the social movement can mobilize support to its cause and apply political mechanisms to fight for its cause.

The Political Systems

Each of the 5 jurisdictions displays important idiosyncratic differences in its political system and the level of respective civil participation in governance. These differences have undoubtedly affected the resources available for activists and the readiness for change and, as might be expected, the stronger the democratic institutions and the degree of active civil participation in the political discourse, the more activists have latitude to operate. In order to better understand the factors hindering or helping gay and lesbian equality, it is important to have a brief insight into the political context of each jurisdiction and how the political factor impacted activists’ work.

Among all the selected examples—and the wider Asian region—Taiwan has clearly achieved the most political integration of gay and lesbian issues, mainstreaming them into open political debate (Chu; Martin), and as part of the wider society. However, this has not always been the case. Rather, until 1987 Taiwan was ruled through martial law, since when it has made great strides to evolve into a highly democratic system. Following the removal of martial law, Taiwanese society underwent a democratization process that coincided with greater receptivity to human rights issues, whether concerning workers, women, foreign sex workers or gays and lesbians (Chu; Ho). Within this context, and as Taiwan grew into a fully democratic system, many political candidates tried to obtain voter approval by framing popular social causes as human rights issues (Chu). By the turn of the twentieth century, an open and multiparty election system permitted the translation of gay and lesbian activism into a valuable political commodity: political parties express explicit support to the gay and lesbian movements, and even sponsored pride festivals in an effort to boost its public image (Chu; Martin). To this day, in Taiwan, gay and lesbian rights remain a major political agenda item that empowers the movement to launch campaigns in support of gay and lesbian-friendly candidates and to obtain politicians’ explicit support (Gerber).

Within this positive political climate, it is still worth recalling that while eventually successful, legislative advances have been hard-fought and gradual. For many years the Democratic Progressive Party (DPP) failed to garner sufficient support to pass proposals concerning anti-discrimination and same-sex marriage (Bowman). In fact, even under its rule activists needed to turn to the courts in order to secure the legalization of same sex marriage, and over a year into the ruling the new bill still faces resistance from conservatives (Dittrich).

In contrast, progress in Hong Kong has been mostly limited to non-legislative mechanisms and non-legal reforms. Although Hong Kong shares with Taiwan a history of freedom of expression and activism—most recently the 2014 Umbrella Movement, but also other movements such as Scholarism and solidarity with Tiananmen Square protestors—it lacks a comparable fully democratic electoral system. Accordingly, activists are able to exert only limited influence on legislators and the government is reluctant to deal with this controversial topic. Activists have therefore found it necessary to take alternative routes to drive for changes, capitalizing on the courts, complex negotiations, and at times opportunities not directly related to homosexuality.

Various significant court rulings have gradually expanded the degree of equality, alongside which activists have taken various routes to keep the topic politically relevant and to pressure the government into action. One agent of change has been the influential business community operating in Hong Kong (Community Business Limited; Toh Han Shih). The most recent example has been the QT case, which revolved around the refusal by the Hong Kong Department of Immigration to grant spousal visas to same-sex partners and which was decided at the Court of Final Appeal in July 2018. 15 international financial institutions and 16 law firms supported the plaintiff QT, celebrating after the final ruling that the decision “strengthens Hong Kong’s ability to attract global talent and its competitiveness as Asia’s preeminent global centre for commerce.”

This situation stands in stark contrast to neighbouring Singapore, where even gay and lesbian-friendly multinational companies are careful not to be seen by the government as supportive of any public movement (Human Rights Watch); accordingly, they focus on internal measures such as in-house policies without supporting public activities. Although Singapore offers greater civil liberties today than in the recent past, the government still exercises a tight control and limits over political movement (Chua; Oswin). The ruling People Action Party (PAP) appears to use its power to maintain control through concerted inhibition of constitutionally protected civil and political liberties, resulting in a curb of opposition (Hwee). These limits manifest themselves, inter alia, in the denial of applications for various public talks relating to gay and lesbian rights, a ban of media content that normalizes the “gay life-style”, and denying activist organizations from obtaining the mandatory legal approval for their registration (Obendorf).

Achieving progress in Singapore, where political discourses are illegal and officials are wary of dealing with controversial issues, means operating within tight legal boundaries. Unlike Hong Kong activists, Singaporeans are aware that the courts support the government in civil liberties cases and have been forced to explore novel and unorthodox ways of promoting change (Chua). Gay and lesbian activists have found success in promoting their cause by calling against actions committed by authorities that failed to follow due process or established policies. As reported by Chua in her study, in various cases, gays arrested by the police were able to challenge the detention by denouncing an unlawful arrest that challenges the authorities’ legitimacy, all without referring to gay or civil rights. This approach has consequently led to the police to scale down or cancel the original charges (Chua). In a similar vein, a gay man won recently a landmark case allowing him to adopt his surrogate child. While the court justified the verdict as in the child’s best interest, notably failing to endorse the same-sex nature of the parental relationship in order not to violate the public policy against the formation of same-sex family units (Tan).

Another route to gaining ground in Hong Kong has been internationalising the topic, notably by highlighting to international political bodies the government’s shortfall in complying with international standards (Equal Opportunity Commission). Moreover, fearing a challenge to its domestic monopoly, the Singaporean government is quick to dismantle anything appearing to interfere with its domestic politics (Chua; Obendorf). Similarly, local activists, while influenced by international movements, refrain from associating with such movements in order not to hurt the local legitimacy that they have worked so hard to gain (Chua; Obendorf).

At the most politically restrictive end of the spectrum lie operations by gay and lesbian activists in the PRC and Malaysia, for differing reasons but with the same results. In the PRC the one-party socialist republic system notably restricts human rights and political activism by virtue of a two-tiered—provincial and national—power system led by the Chinese Communist Party (‘CCP’). In fact, until relatively recently human rights was a forbidden topic in the country (Petersen), and despite an evolution of the juridical system activists remain at risk of being persecuted (The Economist). A general repression of any popular movements and the blanket CCP distrust of minorities or any politically-motivated activities poses the most debilitating obstacle to gay and lesbian activism in PRC. The Chinese government currently adopts a policy towards homosexuality best summarized as ‘Don’t support, Don’t ban, Don’t promote (Speelman). The resulting situation is one in which authorities ignore the ‘private affairs’ of individuals, while restricting collective public affairs, construed as threats to the loosely-termed ‘social stability’ (Hildebrandt; Stone Fish). Consequently, while people are afforded the freedom to live a homosexual life in private, activism—by its nature a public form of protest—presents an entirely different situation and is viewed in a far harsher light.

While the general outlook for gay and lesbian activists in China looks bleak, there has been limited success in finding gaps and loopholes in the blanket ban; for example, the gay and lesbian movement is tolerated by the authorities as long as it is considered a network of individuals, rather than an organized group (Stone Fish). Gay and lesbian activities, such as pride festivals, appear to be permissible with the caveat that they are viewed primarily as events catering to foreign communities (Stone Fish). There also appears to be an increasing readiness—and feasibility—of activists to legally challenge state and private enterprises over discrimination through legal avenues—a lawsuit brought by a gay man against the Hunan authorities for refusing to register his association, or a case presented against a former employer for alleged discriminatory dismissal (Stone Fish; Shanghai Daily); Despite these increases in activism and awareness, wider-reaching initiatives seem unlikely due to a non-conducive government. Where authorities have sensed that political lines may be crossed, public activities have been cancelled and organizers warned or even arrested (Stone Fish).

No such small victories appear on the horizon in Malaysia, which—despite democratic institutions and popular elections—presents the most challenging of the five environments in which gay and lesbian activists operate. Despite the existence of democratic institutions and some degree of civil society, the government increasingly uses authoritarian measures to curb political discourse (Freedman); critics are threatened with prosecution under wide-ranging and vaguely-defined legislation such as the Sedition Act (1948), which limits freedoms such as that of expression in a manner that has recently been deemed to be constitutional.

Moreover, with the increased conservatism of Malaysian Muslim society, the authorities’ Islamic position has gradually marginalized sexual minorities in the country (Shah; the Guardian). This trend is amplified by recent government harsh measures and persecution of political activities (Human Rights Watch). Current, normative views on Islam are hostile towards sexual minorities and differ only when concerning ‘Islamic moral policing’ and intrusion to private lives (Shah). Some examples of state-led anti-gay and lesbian measures include the establishment of state-run camps to “correct” boys with effeminate behaviours and a guide to help identify them (Sayoni). There are some hopes now that the newly elected, and less conservative government will be more supportive. Nevertheless in the current climate, chances of legal reforms are bleak (Rajkhowa)—the Prime Minister has explicitly rejected recognition of gay and lesbian rights (Pillai) and rural Malay Muslims, who form the largest voting block, remain staunchly opposed to equal rights for gay and lesbian communities (Jaipragas). Even in light of recent political developments, gay and lesbian rights remain a taboo in Malaysia:

On the question of whether [former opposition leader Anwar Ibrahim] deserves to be locked up for being gay, Mahathir [Mohamed, newly elected prime minister] is more forthright. ‘I’m a Muslim, we don’t accept that,’ he says. ‘You can be a liberal and accept same-sex marriage and all that, but that’s your business. We are very orthodox people.’

Consequently, activist groups need to limit their initiatives to health-related topics such as HIV prevention while steering clear of overt gay activism (Baba). Ultimately, human rights actors supportive of the gay and lesbian movement in Malaysia such as The Human Rights Commission of Malaysia (SUHAKAM) are granted little power in the current climate (Shah).

Religion and Culture

Religion and culture plays a key context factor that can facilitate or inhibit the freedom of activists to make progress. It is important, then, at this point to examine the impact of religious and cultural influences on ga activists in the five jurisdictions, as these can help explain a permissiveness or opposition to same-sex relationships and gay and lesbian rights.

The PRC, Singapore, Taiwan, and Hong Kong are all rooted in the Confucian tradition, which varies from the developed conception of a divine religious authority as understood within the Abrahamic faiths; morality, therefore, is derived from alternative sources to a supreme being (Li). The Confucian tradition found in the histories of these nations stresses the importance of genealogy and the continuation of ancestral lineage, subordinating same-sex partnerships to a ‘traditional’ heterosexual family, and rendering them pragmatically redundant. Values such as filial piety, respect for hierarchy, maintenance of social order, and the importance of maintaining face—all of which are heavily enshrined in the fabric of the societies and cultures of these four jurisdictions—can make it excruciatingly difficult for gays and lesbians to challenge social and family expectations in a way less commonly found in liberal or secular countries (Community Business Limited).

The deep-rooted indigenous cultural conventions that are owed to Confucianism do not, however, exclude the existence of supplementary influences brought about by the rise of other traditions and religions in the region. In Hong Kong, Taiwan, and Singapore, passionate Christian lobbies have formed to fight against homosexual rights (Steger). In Malaysia, an ongoing process of Islamic conservatism and the competition for the majority Malay Muslim vote by political leaders and party candidates has led to a shift towards a religious agenda that stigmatizes and pressures gays and lesbians (Women’s Aid Organisation). PRC appears to be the exception, however, in that 67% of the country are atheists; here, the stigma appears to lack a religious, moralistic view and is rather centrally grounded in the traditional views discussed above (Stone Fish).

The Impact of Religious and Cultural Contexts on Gay and Lesbian Activism

Religion and overall cultural acceptance of homosexuality represent another set of resources that can hinder or promote changes to the legal status quo. The lack of legislative progress in Hong Kong, Taiwan, and Singapore owes much to the government’s reluctance to deal with the strong opposition from Christian groups, conservative lobby groups, and fundamentalist legislators, which in Hong Kong has driven activists to challenge legislation in courts instead. One exception to the general discord, however is the successful expansion of Hong Kong’s Domestic Violence Ordinance to same-sex couples living together. In this case, conservative Christian groups agreed to widen the traditional concept of family values by changing the name of the Ordinance to the Domestic and Cohabitation Relationships Violence Ordinance (Kapai).

In Singapore, the state’s position on homosexuality has developed into one of balancing the interests of conservative lobby groups with the wider pressure for reform. The government openly acknowledges that—in the words of former Prime Minister Lee Hsien Loong—members of the gay and lesbian community “too, must have a place in this society, and they too are entitled to their private lives…[b]ut homosexuals should not set the tone for Singapore society” (Lee), which the government believes remains opposed to homosexuality. Hence, while Section 377A of the Penal Code continues in principle to criminalize sex between two men, in practice police prosecutions are rare. More than this, there exist both a variety of gay establishments operating visibly throughout the city and a positive shift in the way that state-controlled media portraits homosexuality (Chua; Obendorf).

Nonetheless, in the current climate, even officials that seem understanding to gay rights prefer not to disturb social harmony and wait until what they consider to be the right moment to make legal amendments (Chua; Obendorf). Within this context, contemporary efforts for advancing gay rights in Singapore mainly centre on changing public opinion, and consequently promoting the parliament’s readiness to address legislation and policies, without challenging the political system by calling for greater democracy (Chua; Obendorf). The most important running initiative targeting public opinion is the Pink Dot event, a public assembly of gay and lesbian Singaporeans and their supporters, celebrated first in 2009 (Oswin). An important strategy of the organizers was to position the initiative neither as a protest nor a parade but as a symbol of Singapore’s more inclusive future.

In Taiwan, too, Christian Groups have organized to form a strong opposition to any legislative advancements. In contrast to both Hong Kong and Singapore, however, this opposition has been unable to challenge an overall growing support to the cause. Openly gay politicians and presidential candidates (Wen), celebrities, and artists (Chyan) have promoted the support for same-sex marriage. Surveys prior to the ruling ordering legislative change showed that the majority of the population were in favour of same-sex marriage and extend marriage rights to homosexuals (Taiwan Ministry of Justice) However, even within this generally tolerant environment the parliament still struggles to pass the court mandated marriage bill due to conservative group opposition (Dittrich). As the recent referendum results have shown, with the date for the introduction of marriage legislation approaching, voters in Taiwan have now rejected same-sex marriage (BBC).

In the PRC, the gay and lesbian movement faces the challenge imposed by the CCP’s quest to enforce morality and to homogenize Chinese citizenship. Confucian societal traditions emphasizing filial piety in the context of the one child policy (Wei) contribute additional obstacles that the gay and lesbian movement in PRC must overcome in shifting societal expectations and norms (Stone Fish). Despite the removal of the one-child policy in 2016, cultural norms remain welded to traditional, cis-gender stereotypes dictating that marriage exists exclusively between a man and a woman, each of whom were necessarily born as male and female respectively. New popular concepts such as ‘bare branches’ (guang gun, 光棍) and ‘leftover women’ (sheng nu, 剩女) highlight the stigma associated with being single—which from a reproductive perspective gay and lesbian individuals are perceived to remain (for contemporary reading on ‘leftover womens’ refer to Hong-Fincher). Such stigma remains even in the wake of the removal of PRC’s one-child policy. These pressures drive many gay men to disguise their sexual orientation and marry straight women—a practice called xinghun (形婚) or cooperative marriages—resulting in immense suffering for both parties (Wei). Research estimates suggest the practice is extremely widespread, with between 80 and 90% of gay men in PRC marrying heterosexual women (Lim; the Economist).

Various organizations thus implement a broad spectrum of activities aimed at addressing the cultural challenges existing in the PRC: some groups have introduced activities aimed at raising parents’ receptivity to and acceptance to their gay and lesbian children, or increasing societal awareness even within the gay and lesbian community itself (Murphy and Si) others operate to help gays and lesbians find partners, including the facilitation of xinghun marriages (Speelman).

In the more religiously conservative Malaysia, human rights associations addressing gays rights are under pressure, frequently being denounced by senior officials for being un-Islamic (Boo). In both government and opposition parties, normative views on Islam are hostile towards sexual minorities and differ only when concerning ‘Islamic moral policing’ and intrusion to private lives (Shah). In comparison to Hong Kong, PRC, Taiwan or even Singapore, aid from the business community appears bleak in the current political and conservative climate (Tracer and Obusan). Furthermore, those who choose to go public with their sexuality, especially if Muslim, might face a hostile backlash or even death threats (Min). Within the last few years various awareness-related events, such as Seksualiti Merdeka, were cancelled by the authorities following threats from religious Muslim activists (Women’s Aid Organisation). Homosexuality remains seen as a “disorder in sexual orientation” from which one might “return to their natural instincts”, as highlighted by a “Back to Fitrah” contest organised by the Universiti Sains Malaysia, which sought to return homosexual students to their natural instincts or ‘Fitrah’ (Joles). The event was approved by the university and, more tellingly, its posters bore the logo for Malaysia’s Ministry for Education. Against this backdrop, it is unsurprising that Human Rights Watch notes that violence against sexual minorities remains a serious concern (Human Rights Watch).

While there is currently little hope for immediate progress in sexual minority rights in Malaysia, there are some sympathetic forces that appear to be slowly trying to educate the public on gay issues. Justice for Sisters is a grassroots campaign that both aims to raise public awareness about Mak Nyah (‘transgender’) issues in Malaysia and raises funds to challenge prosecutions against trans people, but advocates against abuse and discrimination across a range of issues including gay and lesbian rights (Justice of Sisters). Another avenue for wider change is the Bersih (“clean” in Malay) (Welsh). While the movement does not specifically support sexual diversity, it includes advocates from the women’s movement, human rights lawyers, diversity groups and liberal Islamic organizations and therefore might be more sympathetic to the cause of gay and lesbian rights (Shah).

Activists’ Ability to Capitalize on Key Events

A key factor that appears to be important for promoting the equality agenda is activists’ ability to leverage emerging opportunities and pivotal incidents. This has come into play in various occasions and has been proven critical in many success stories.

In Hong Kong till the mid-1980s there was little public support to follow the 1967 English reform that decriminalized homosexual acts (Petersen; Wong). However, this changed as a result of several incidents and developments during the 1980s and 1990s. Among the first was the controversial 1980 MacLennan incident, in which a bisexual Scottish police inspector apparently committed suicide to spare himself the embarrassment of being revealed as gay (Hong Kong Government). The case opened public debates concerning the need to decriminalize homosexuality (Wong). A few years later, in the context of the growing anxiety ahead of the transfer of Hong Kong sovereignty to PRC—notably following the incidents of Tiananmen Square—the Legislative Council passed the 1991 Human Rights Bill (Petersen). The creation of a nexus between same-sex rights and human rights proved to be an important success factor of same-sex rights advocacy in Hong Kong. As the criminalization of homosexuality was now incompatible with Bill of Rights it was repealed soon after (Shaw).

In the PRC, the gay and lesbian movement’s ability to carve out an unofficial space for discourse has been aided by two important factors: the economic and political effects of the opening of PRC to the international community in the 1980s (Yanhai); and the HIV/AIDS epidemic (Hildebrandt; Zhongxin et al). Notably, the devastating costs of the latter opened up a channel of communication between activists and officials, leading to greater cooperation between government and grassroots ‘MSM’—men who have sex with men (Hildebrandt; Zhongxin et al). While couching the discourse surrounding the treatment of sexual minorities in the biological sphere—as opposed to as a civil rights issue (Hildebrandt)—risks further stigmatizing the minority by associating homosexuality with disease, illness, or framing it as something ‘curable’, the prominence of gay and lesbian issues has allowed activism to expand to other rights areas.

In Singapore, the introduction in the late 1990s of a strategy to attract international talent and the positioning of the country as a leading global creative and diverse city led to greater official tolerance of same-sex couples (Oswin). In addition, denouncing unlawful police arrests on the basis of procedural wrongdoing, helped reduce police raids create a safer space for gays in the city-state. Even in Malaysia’s inhospitable political and cultural environment, activist groups have still managed to find a space to operate by focusing on health-related topics such as HIV prevention (Baba).

One key lesson that can be learnt from Taiwan’s gay and lesbian activists appears to be the swiftness with which they have worked to mobilize community support and the impact that this has had on their subsequent ability to successfully leverage negative incidents to advance their cause. There are several examples that successfully illustrate this point, not least the “TTV World News Incident”—a clandestine recording in 1990 of a lesbian network event that was edited and turned into a seedy news item. Rather than allowing others to characterise them, an outraged lesbian group issued a protest statement in an influential Taiwanese newspaper, successfully mobilized celebrities to support their cause, and ended up launching a mainstream media event which caught the attention of Taiwan’s sympathetic audience determined to advance towards a liberal and open society (Chu). Two other examples are the Taipei New Park protests in 1994—which began as a crackdown on queer cruising in Taipei City before morphing into the first completely public queer event—and the public reaction to the 2010 directive of Taipei City concerning homosexuality at school age (Martin; Chang).

Framing Equal Rights for Lesbians and Gays as a Greater Cause

Alongside ensuring that key events are utilised to maximum effect, success is more likely where gay and lesbian advocates frame their struggle within the context of achieving equal rights. In many cases progress was related to the ability of activist to frame sexual minority needs within the parameters of a broader goal. This allows minority group rights to resonate with those outside the group who might not ordinarily sympathize with them.

In Hong Kong, homosexuality was decriminalized under the wider context of legal changes aimed at safeguarding human rights and democracy with the approaching hand-over by PRC (Petersen). The same human rights and civil liberty argument is also critical in Taiwan, where the society grew sensitive to the rights of vulnerable groups and is interested in forming a free and open democracy following the era of martial law. The marked advances in gay and lesbian rights in Taiwan therefore resulted from couching the its quest for equal citizenship rights within the context of the larger struggle for human rights (Chu). The importance of appearing as pro-human rights before the electorate in a multiparty system translated into support for gay and lesbian rights by political candidates who wanted to capitalize on growing public sentiment for equality in general in a post-military era (Chu).

Being able to connect the rights of gays and lesbians to a bigger general cause also paved the way for the inclusion of same sex partners in Hong Kong’s Domestic Violence Ordinance (Kapai; Ho). Groups traditionally opposed to gay and lesbian rights agreed to make this extraordinary concession as a means to protect a wide range of people against violence. Similar arguments might have prompted the changes in various provinces in the PRC to the definition of family to include “other members”—which opens the way for the police to protect gay and lesbian partners (China LGBT Right Initiative). Even in Singapore, where there is strong government resistance against taking any formal legislative steps on gay and lesbian equality matters, authorities have decided to take a more liberal approach in the interests of economic appeal and global talent recruitment.

Discussion

A review of all five jurisdictions side-by-side offers various insights into the development and success factors of activist movements in the region. Overall, the legal progress appears to correlate to previous theorization cornering the development of sexual minority rights. Earlier works suggest that progress, ultimately towards marriage equality, follows a specific sequence (Eskridge; Waaldijk):

• decriminalization of consensual same-sex intimacy;
• enactment of anti-decriminalization laws; and
• legal recognition of same-sex relationships.

While there are exceptions to this pattern, this structure model appears to represent the process in Asia. By virtue of its anti-discrimination law and debated marriage equality law, Taiwan leads the pack; Hong Kong and the PRC are situated mid-way in the process, with some anti-discrimination laws in place; Singapore implementing first steps, with de facto decriminalisation but de jure illegality of same-sex intimacy in both. Malaysia’s approach to gay and lesbian remains the most problematic, with overt persecution of lesbians, gays, and bisexuals both at the official state level and by the majority at the community level.

Thematic Approaches to Successful Gay and Lesbian Advocacy Efforts

There are also several clear patterns that emerge concerning activists’ work and success, especially in relation to the relevance of the political, legal and social context, historical opportunities, and positioning of the claim. Firstly, a critical link seems evident between context at the historical, social and legal levels, and movement efforts and achievements. A larger degree of freedom to operate, whether from the legal standpoint or the societal level of acceptance, clearly conditions the boundaries of the activists’ work and degree of progress. In Taiwan, a fully democratic system where the leaders are voted via popular elections, where there is an active civil society that has the liberty to challenge the authorities, and where society is quite sympathetic to the cause, activists can exert their influence in different ways. Review of the gay and lesbian movement history in Taiwan shows that activists have successfully used a variety of strategies, whether it is targeting voters’ opinions as way to influence politicians’ policies, protests against authorities, large scale awareness campaigns and legal recourse.

By contrast in Hong Kong, where there is an active civil society yet where the legislature and its chairman are not elected entirely through universal suffrage, activists have limited power in terms of influencing the legislators, especially considering legislator hesitancy in confronting the powerful Christian lobby. In Hong Kong, grassroots activism has a less forceful impact upon governance due to the lack of direct effect from the citizen to their leaders—here it is business that exerts pressure. Activists, therefore, drive awareness campaigns and leverage the influence of the international business lobby in Hong Kong, with the objective of gathering social support for their cause. In doing so, they make progress via alternative means, such as the legal system, which is open to challenge discriminative legislation. Courts, in fact, are seen as the key to progress in the field of sexual minority rights as they can help establish an “equality rights” framing that resonates with the broader public (Pettinicchio).

Activists in the three other jurisdictions reviewed in the study need to face challenges of a much more restrictive context. In the PRC, while there do not appear to be strong anti-gay sentiments per se, the CCP’s distrust of any social movement and the restrictions it imposes on human rights activists and associations leads activists to take alternative and less confrontational routes. Activities in the country appear to either focus on educating the public as a way to make it more accepting of the gay and lesbian community or, more pragmatically, on combating the spread of HIV/AIDS. However, this approach fails to address gay, lesbian, and bi-sexual persons as eligible to special claims and needs.

Similarly, in Singapore the tight control that state authorities impose on civil and political activism limits considerably the options of the movement, despite its status as a state with a constitution and leaders voted in popular elections. Furthermore, as courts in Singapore appear to align with the government, there is little hope in making progress via the judicial system. Gay and lesbian activists therefore operate under the strategy of pragmatic resistance, directing most of their activities, as in the PRC, towards cultural awareness initiatives as an effort to make the government more receptive to taking steps forward.

The situation in Malaysia is somewhat different. While the country has democratic institutions, the religious discourse has fostered a climate where it is practically impossible to publicly address sexual diversity. In effect, the Overton Window—or range of ideas tolerated in public discourse—is so traditional religious in subject matter, that broaching the subject of gay and lesbian rights openly is a non-starter. Consequently, activists’ options are limited to one of two viable options: as elsewhere, addressing the specific but peripheral issue of health implications attributed to the gay and lesbian community such as HIV/AIDS prevention; or utilising a judicial system that appears to balance between the restrictions imposed by the Sharia laws and constitutional freedoms.

This analysis can be used to create a matrix that contextualizes favourable environments for sexual minority rights activism in the five jurisdictions of this article. The position on Societal Support relies on the mean of answers for the question whether homosexuality can be justified as published in the most recent World Value Survey). The position on Political System is taken from the Economist Democracy Index. While it can be argued that exact positioning of each grid is not purely empirical, it is expected to provide an overall picture of the situation in each territory.

Graph: Fig. 1Defining parameters for a favourable context for gay and lesbian activism and outcomes. The position on the grid is based on input form the Economist Democracy Index and the recent World Value Survey. The number to the left is the country’s ranking in the Democracy Index (index includes 167 countries), while the number to the right is the mean result of the World Value Survey question asking whether homosexuality can be justified. The survey scale ranges from 0 (never) to 10 (always)

Hong Kong and Taiwan both have a high degree of civic involvement and freedom to organize campaigns and parades, but constitute a very different political environments; in Taiwan citizens elect their on political candidates, while voters in Hong Kong have much less electoral influence. In contrast, while there is a popular vote in Singapore, freedom of speech is limited. This analysis brings up back to the earlier discussion on Resource Mobilization theory (McCarthy and Zald). Hence, while activists in all of each of these jurisdictions try to overcome opposition from conservative groups they have very different democratic resources available to them to change status quo. The other set of resources addressed in the paper is societal. In jurisdictions such as Taiwan, Singapore, and Hong Kong, activists can rely on resources of social support for their cause. Evidently, the most favourable situation is in Taiwan, where activists both have a high degree of democracy and a relatively supportive society. Less favourable situations can be observed in the PRC and Malaysia due to the political system, much less acceptance (including hostility) towards same sex relationships, or both. Residents and citizens of countries in this quadrant face challenges from both the government and local populations, with little or no support from either level that cast doubt on whether significant progress can be actually made.

Additional Key Factors of Gay and Lesbian Activism Success

One further important characteristic of activism that can be derived from the analysis of this article is a correlation between the ability of activists to leverage emerging opportunities and/or pivotal incidents and the fruition of their efforts. This has come into play on various occasions and has been proven essential in practically every advancement in gay and lesbian rights across the five jurisdictions. In Hong Kong, the decriminalization of homosexuality took place within the context of the uncertainty before the 1996 hand-over to PRC, and in an environment of general concern about human rights issues following the 1989 Tiananmen crackdown. Likewise, in Taiwan the transition from the martial rule to democracy offered unique opportunities, which were consolidated by the ability of gays and lesbians to foster sympathy following incidents such as the sensational TTV world report, New Park clean-up and the more recent homophobic school directive. In the PRC, Singapore, and Malaysia the HIV/AIDS epidemic served to provide gays and lesbians with government endorsements to operate under the aegis of epidemic prevention. In the PRC, this was bolstered by the international rapprochement of the country. Singapore’s quest to attract to global talent also spurred it to change its official stance, denouncing unlawful arrests by the police and helping foster an image of increased tolerance.

This article has argued the importance of reframing minority needs in a way that appeals to the interests and values of the larger population. This strategy has proven successful in societies where freedom and equality was valued as part of the nation’s identity, such as Canada and the United States; in these scenarios, reframing same-sex marriage in terms of equality helped shift the public opinion to be more favourable (Pettinicchio). In both Hong Kong and Taiwan activists were able to make significant progress by doing just this, framing the rights of sexual minorities as human rights issue. In Hong Kong, and to a certain extent in the PRC, a similar strategy has been used to underpin the need for recognition of same-sex partners living together as a means to protect individuals from violence both domestically and within the wider society. Moreover, the QT judgment highlights the intersection between gay and lesbian rights to equality in all aspects of life and the impediment of discrimination upon financial stability and work-related opportunities.

Conclusion and Recommendations

The rights of sexual minorities have undoubtedly become a topical human rights issue. Alongside some important progress in some Asian countries, there have also been remarkable steps backwards in others. This article was intended to shed light on the contemporary situation in five distinct Asian jurisdictions, with the objective of learning what factors and environments contribute to the growth and success of activist movements in Asia.

One observation that stands out clearly is the ability for activists to find ways to fight for greater equality even in very challenging contexts. Besides the impact of social norms and religion, these challenges include political restrictions not typically present in Western-style democracies. These limitations however have not discouraged activists from pursuing their cause, nor will they be likely to do so in future; rather activists have responded by channelling their efforts through alternative routes. By combating HIV/AIDS, organizing non-confrontational awareness events, pressuring their governments through international bodies, or litigation, activists successfully keep the rights of sexual minorities relevant, bravely pushing towards greater equality.

The lesson to be learned regarding activist groups working on sexual minority—or indeed other human rights—issues in challenging contexts is that many opportunities for change exist even in restricting environments. While the path to influence legislators is not always as direct as in open democracies, tools and mechanisms such as litigation, awareness-raising activities, partnerships with the government, and effectively utilising any emerging critical incidents can contribute to progress in society.

The research of this article has led the authors to four key recommendations for activists promoting human rights:

• Recognize available resources in terms of Societal Support and Democratic tools and adapt accordingly: As evident from this review, different jurisdictions present different barriers and opportunities. In Hong Kong, it is possible to organize demonstrations but not to determine who is the Chair; in Singapore, the situation is the opposite. In addition, even in less limiting democracies, hostility towards sexual minorities can be too high to rally for support as seen in Malaysia. Activists must recognize limitations and opportunities, adapting their approach accordingly.
• Avoid limiting actions towards a linear progression model: Addressing the gay and lesbian cause from different angles in parallel rather than following a step-by-step approach appears to be the most effective strategy. Sadly, no Asian example highlights this as effectively as the US Supreme Court decision of Obergefell v. Hodges, where sexual minorities achieved equal marriage rights prior to winning the battle for federal protection against discrimination.
• Connect to the needs and values of the larger population: Narrowing the gay and lesbian cause solely to that specific group limits its chances of success. Rather, success is more likely where a nexus is found between gay and lesbian activist efforts and a wider goal to which a broader range of citizens can relate. In essence, gay and lesbian rights should be inextricably linked to the wider struggle for equality, rather than as a separate issue to be tackled.
• Make the best out of emerging critical incidents: In many cases unfortunate and even tragic occurrences offer opportunities to draw attention to the gay and lesbian cause and can serve to mobilize the public in their favour. The ability to capitalize on these is an effective opening to change a situation for the better.