Day Wong & Pik Ki Leung. Journal of Homosexuality. Volume 59, Issue 10. 2012.
Inspired by Foucault with regard to the discursive construction of sexual subjectivities, many scholars (e.g., Chauncey, 1994; Halperin, 1990; P. A. Jackson, 1997a, 1997b; Morris, 1994; Weeks, 1989; Winkler, 1990) seek to analyze the discursive and institutional practices that organize and regulate same-sex desires and other peripheral sexualities in pre-modern and modern times. Along with efforts to elaborate, apply, and develop Foucault’s ideas, disagreements have been expressed with regard to Foucault’s thesis. Halperin (1998) cautioned that, in order to adequately address the controversies, one must not mistake Foucault’s infamous claim about the birth of the homosexual in the nineteenth-century as an empirical claim about the historical nonexistence of sexually deviant subjects before the eighteenth and nineteenth centuries. Rather, it is a claim about the internal logic and systematic functioning of two different discursive styles of sexual disqualification.
Foucault (1990) argued that, in Europe, sexuality became a medical and medicalized object with the advent of bio-power in the late-eighteenth century. Unlike old taboos or church authority, the new form of power intervened with the biological processes of the population and operated through examination, observation, and classification. The displacement of moral-legal discourses by psycho-medical discourses represented a shift in the ways in which homosexuality was constructed and policed. Before then, moral-legal discourses were concerned with drawing the line between illicit and licit sexual conducts. With the emergence of psycho-medical discourses, sexual desires and their objects, as well as modes of fulfillment, were crystallized as normal and abnormal. As an example of the displacement of legal-moral names by psycho-medical terms, sodomy was displaced by homosexuality. A sodomite is a person like any other, with the sole difference of having lapsed into an act contrary to nature. The homosexual, by contrast, is not simply a person responsible for certain acts and, thus, liable for punishment. Rather, the homosexual is constructed as a distinct and abnormal species fit for medical analysis and even being cured (Foucault, 1990).
It should be noted that rather than offering a universal and generalized account of the development of sexuality, Foucault’s (1990) account of the displacement of moral-legal discourses by psycho-medical discourses and the operation of power regimes is historically and culturally specific. The discursive construction of homosexuality as exemplified in medical knowledge regarding human sexuality has undergone significant changes in the contemporary era, particularly in the past few decades. In 1973, the American Psychiatric Association determined that homosexuality was no longer a mental illness. The World Health Organization followed suit in 1981, removing homosexuality from its list of mental illnesses. China’s psychiatric association also delisted homosexuality as a mental illness in 2001. Do these changes imply a relaxation of medical control over homosexuality? Yet, in recent decades, gay and lesbian groups in many parts of the world have devoted their efforts to repealing restrictive sexual laws, promoting antidiscrimination laws, and struggling for marriage rights. Meanwhile, anti-homosexual groups try to seize the mantle of religion and morality and construct their own medical discourses in conducting a holy war against homosexuality. All these suggest that, instead of a displacement of legal-moral discourses by psycho-medical discourses, there is a complex interplay of medical, legal, and moral discourses in the construction of homosexuality that form a multifaceted and variegated structure for the application and resistance of power.
Using Hong Kong as an example, this article discusses the construction of homosexuality in the legal and medical discourses from the late-twentieth century onward in order to throw light on the modification and modernization of power in the contemporary field of sexuality. The colonial background of Hong Kong, plus the influence of Christian groups on setting the parameters of legal reforms and health policies, while informing cultural and moral debates on homosexuality, mark Hong Kong as a case as different from other social and cultural contexts, including Chinese societies, such as Mainland China and Taiwan. The (post)-colonial background has been highlighted in other accounts of same-sex desire in Hong Kong, such as Chou (2000) and Kong (2011), where experiences of homosexuals in Hong Kong and other Chinese societies are illuminated. However, the existing literature on the development of legal discourses on homosexuality in Hong Kong tends to focus on the decriminalization reform, discrimination in the homosexual age of consent, and lack of legal protection for sexual minorities (see, e.g., Chan, 2004, 2005; Chou, 2000; P. S. Ho & Tsang, 2000,) and overlook the interactions between legal discourses and medical or other discourses. This article serves to provide a new and updated perspective into the issue at stake by not only considering the latest legal reforms and medical policies, but also focusing on the notion of risk, which we argue, marks a distinctive discursive tool in the contemporary domain of law and medicine.
We argue that instead of simply treating sexual dissidents as criminal, pathological, or abnormal, legal and medical discourses have shifted to increasing reliance on notions of risk, a seemingly neutral term, to put mechanisms of social regulation in place. Sociologists such as Beck (1992) and Giddens (1991) argued that modernity has entered a new phase where the concept of risk is fundamental to the ways that both lay actors and technical specialists organize the social world. In a risk society, the future is envisaged as the determinant of decisions made in the present. Risk can be a neutral term that refers to uncertainty about the outcomes of choices. As an orientation, risk taking treats the future as something unpredictable and, yet, open to human intervention. However, the ways in which risk is invoked in social control are often related to the danger of unwanted negative consequences. Indeed, as Lupton (1999) argued, “(r)isk meanings and strategies are attempts to tame uncertainty, but often have the paradoxical effect of increasing anxiety about risk through the intensity of their focus and concern” (p. 13). Furthermore, from a Foucauldian perspective of governmentality, populations and individuals are monitored and managed through surveillance, discipline, and regulation (Burchell et al., 1991), and risk management functions as a technology of government whereby certain social groups or populations are identified as at risk and are, thus, subject to the regulatory powers of particular types of knowledge and interventions (see Burchell, 1996; Gordon, 1991; Rose; 2007). For instance, epidemiological techniques function as a significant contemporary risk strategy (Dean, 1997) in that “epidemiological factors are now often used to exhort individuals to engage in self-regulation” (Lupton, 1995, p. 97) Contemporary legal and medical discourses on homosexuality exemplify such risk rationality and technology (see Dean, 1997, 1999; Lupton, 1995). With risk prevention and avoidance becoming the focus, the will to manage risk provides the impetus for legal and health reforms even though the specific risk varies from time to time with the circumstance.
This article focuses on the roles of medical and legal discourses that bring into play the policing and regulation of homosexuality in contemporary Hong Kong society. Historians, such as Chauncey (1994), have provided a wealth of evidence that demonstrates the need to pay attention to a host of other discourses about sexuality, many of which are circulated by word of mouth, in order to attain a fuller understanding of the emergence of the modern homosexual in a particular context. Feminists (e.g., Buker, 1990; de Lauretis, 1987; Irigaray, 1974) have pointed out that it may not be appropriate to approach the history of female sexuality in the same way as Foucault traced male sexuality, which might require a focus on discourses of gender and representations of nature and culture. Scholars such as T. S. Kong (2004), Leung (2008), and Tang (2011) have highlighted the cultural space as a major site for the production of texts and discourses that both reproduce and challenge heterosexualism in Hong Kong. Our study does not exhaust the major and diverse discourses that organize homosexuality or shape sexual identity formation. For instance, the media (A. D. Wong, 2005; Sancken, 2010) as well as identity politics and sexual rights activism (D. Wong, 2004, 2006, 2007, 2011) are but two significant arenas where discourses that construct homosexuality have also been circulating in response to changing legal and medical discourses. Instead, this article serves to demonstrate the importance of mapping the differences and interactions of discourses in order to gain a better understanding of the shifting terrain of modern forms of power.
This article is divided into three sections. The first section traces the birth of the (male) homosexual in Hong Kong by revisiting the reform on decriminalization of homosexual acts in the 1980s. It seeks to illuminate the reform as a double taxonomy of freedom and control, with its construction of the homosexual as both an at-risk group and a danger posed to society. The second section examines the development of legal and medical discourses at the turn of the century, when the debates about antidiscrimination legislation were intertwined with the medical discourse, which constructed the HIV/AIDS epidemic as a homosexual disease. It focuses on the policing of homosexual culture in the name of safe sex and intertextual borrowing in anti-homosexual campaigns. The 2005 repeal of unjust homosexual laws opens the third section. This section explores how “fairer”, nondiscriminatory laws go hand in hand with a wider and more stringent control over sexuality. New control mechanisms are justified on the basis of protecting children from the risks of homosexual influences and sexual exploitation.
Liberalization, Control, and Decriminalizing (Male) Homosexuality
Hong Kong was ceded to the British Empire in 1842 upon China’s defeat in the Opium War. Since then, English law was imported into colonial Hong Kong. In the area of homosexuality, the colonial government adopted the Offenses Against Persons Acts in 1865, which imposed a complete ban on homosexual acts (Chan, 2005). In the early years of colonial settlement, the British were most concerned with health and sanitary issues (Ip, 2004). After the mass riots in 1966 and 1967, concerns over public order, in addition to the attention to health, formed the basis of political governance in the colonial period. The government began to see the key for order and stability in law. Law and order reigned as the governing ideology in the post-riot period (Ku, 2004). To create rational legal domination, laws were formed and amended to enhance the legitimacy of the government in the absence of democratic reform. The government proclaimed the rule of law and its fairness, but in effect, introduced tough ordinances and minute procedures to regulate civil action. For instance, Public Order Bill 1967, which emphasized the need to prevent and control disorder without making reference to the right of citizens to peaceful assembly, conferred wider power to the governor and the police. Law was used as a means to establish the legitimacy of the police who were seen as the guardian of social order (Ku, 2004). Not unexpectedly, the ideology of law and order was also played out in the reform on laws related to homosexuality.
The death of Police Inspector MacLennan in 1980 exposed the loopholes of preexisting homosexual laws, which the colonial government considered as threats to social order. John MacLennan was a young Scottish inspector who was to be arrested and charged with acts of gross indecency with male prostitutes. The arrest did not take place because he was found mysteriously dead in his own flat. MacLennan’s death put the colonial government not only in an embarrassing situation, but also under a huge amount of pressure. First, a law enforcement officer, who was looked upon as the guardian of social order, was associated with a serious offense punishable by life imprisonment. Furthermore, it was believed that MacLennan had knowledge of the involvement of other senior officers in homosexual activity. Although a special commission of inquiry into the MacLennan case concluded that the case was one of suicide, there were rumors throughout the city that MacLennan was actually murdered to prevent disclosure of homosexual crimes within the senior ranks of colonial civil service (cf. P. S. Ho & Tsang, 2000).
The Hong Kong government took immediate steps to establish a commission and assigned it the responsibilities to examine the prevalence of homosexuality and appropriateness of preexisting laws governing male homosexual conduct. Three years later, in 1983, the Law Reform Commission of Hong Kong (LRCHK) published its findings and proposed decriminalization of male homosexual acts conducted in private by consenting adults. The Commission estimated that no less than 1,000 male prostitutes were operating to serve homosexuals (LRCHK, 1983). By making homosexual acts criminal, the law increased the burden on homosexuals and made the task of blackmail much easier. The government was well aware that the risk of blackmail was more real and potentially more damaging for the senior members of the government service than for ordinary people (LRCHK, 1983). A legal reform was called for and justified in terms of the advantages that it would bring to social order.
However, it must be noted that the construction of homosexuality in the 1980s was articulated not only within legal-juridical discourse, but also medical discourse. Legal and medical discourses are not separate domains; rather, they are intertwined with each other to form a complex web of power and knowledge. In the report of the LRCHK (1983), immediately following the statement of the role of the law, was a review of the medical views on “Who is homosexual?” When the medical discourse of the eighteenth and nineteenth centuries disqualified homosexuality as pathological and produced a new species of subjects for medical therapy, the medical discourse in the late-twentieth century that gave rise to the birth of the (male) homosexual in Hong Kong produced more complicated and contradictory effects. While individuals were defined with reference to their abnormal sexuality, they were not seen as patients awaiting medical treatment as a result of the revision of the medical discourse. It was stated in the Commission’s report that homosexuality had been taken off the official register of psychiatric illnesses in the United States and that most problems homosexuals encountered resulted from society’s misconceptions and prejudice. Furthermore, medical discourse seemed to have developed a sense of self-awareness of its own limits. The report asserted that all therapeutic approaches had limited value in relation to the problem of homosexuality and that the large majority of homosexuals did not seek to change their sexual patterns. With the portrayal of a fixed and innate nature of homosexuality by medical discourse, the report concluded that legal sanctions against homosexual behavior will not be effective.
The medical discourse as endorsed by the Commission not only refused to treat homosexuality as a disease, but also underlined the advantages of decriminalization for the prevention of disease. The Commission’s report highlighted that viral hepatitis is a major public health problem with a high rate of infection among homosexual men. If homosexuals were not driven underground, they would accept immunization more readily (LRCHK, 1983). Similar to the liberal legal discourse, homosexual people were constructed as an at-risk group, who were vulnerable to disease transmission when preexisting laws created a barrier for them to receive immunization. Medical discourse echoed legal discourse in articulating the disadvantages of pushing homosexuality underground. Decriminalization of homosexuality was, thus, advocated as beneficial to the control of both the risks of crime and disease.
However, the decriminalization proposal was met with fierce resistance from many sectors of society. A majority of Hong Kong people were against the decriminalization of homosexual acts, claiming that homosexuality was contrary to Chinese morality (LRCHK, 1983). The decriminalization debate was, hence, as much legal and medical as cultural and moral. The obstacles to legal reform on homosexuality were finally cleared as Hong Kong approached its return to Chinese sovereignty in 1997. Upon seeing violent suppression by the Beijing government on the Tiananmen protests in 1989, the general public’s confidence in the future of Hong Kong sank to its lowest point. In order to allay public anxiety, the Hong Kong government passed the Bill of Rights in January 1991, of which Article 14 specifically protects individuals against arbitrary and unlawful interference with their privacy. Decriminalization of homosexual acts committed in private was finally passed in 1991, when the general public shifted their position in favor of alignment of the existing laws with the Bill of Rights.
The reform on laws that governed male homosexual acts was successfully carried out in 1991. It must be noted that the reform and liberalization brought about protection of sexual privacy, but only in a limited form. The legal reform was motivated by the intent to control the risk of blackmail and crime. It was argued that the preexisting laws put homosexuals at risk of blackmail and persecution and were, therefore, conducive to other crimes. In this sense, the liberal legal discourse constructed homosexual people as a vulnerable and at-risk group. On the other hand, homosexual people had long been regarded as a risk to society. Opponents of the legal reform stated that “relaxation of these laws would put society at greater risk,” and “lead to corruption of young boys on a large scale” (LRCHK, 1983, p. A70). The Commission tacitly recognized these views by asserting that the law should, first, protect the vulnerable or the young from exploitation or sexual corruption, and, then, protect people in general against public behavior that is indecent or offensive to the majority (LRCHK, 1983). Along with the decriminalization of male homosexual acts conducted by consenting adults in private was a concomitant requirement on the age of consent. In contrast to the legal age of consent for heterosexual intercourse at 16 years of age, it was considered a criminal offense for a man to have sex with another man under 21 years. This measure was to protect young men under age 21 from being seduced into homosexual activity. A man who engaged in buggery with another man younger than 21, albeit in private and with consent, would face a sentence of life imprisonment. To engage in an act of gross indecency with a man under the age of 21 would mean two years of imprisonment. To procure gross indecency, which might involve no physical contact, was labeled as soliciting younger males for immoral purposes. The legal reform, hence, removed private homosexual acts as a criminal offense, but left intact the assumption that homosexuality is dangerous to the young and society at large, hence, a risk to be properly managed.
The 1991 reform should better be understood as a double taxonomy of freedom and control, where a move toward greater freedom in the private sphere was balanced by a tightening of control in some arenas of the public sphere (Chou, 2000; Hall, 1980; Weeks, 1985). Legal-juridical discourse defines the role of law as the control of exploitation, corruption, and harm, as well as protection of the vulnerable, so as to provide public conditions that allow consenting adults to make decisions on their own private actions. The private is treated with limited presence of law, whereas the public is considered to be a realm of its full presence. The reform specified that public would mean a space where more than two persons take part in activity or are simply present, or a lavatory to which the public have access. Such a definition of the public does not require the actual presence of the third party, but the mere possibility of the presence of the third party; nor the requirement of display, but its mere possibility. Consensual homosexual acts between more than two adults, albeit in private apartments, were criminalized as illegal public behavior. With such a broad definition of public, the liberalization reform actually resulted in the tightening of control. Indeed, this broad definition enabled frequent police raids of gay bars, bathhouses, and other gay venues to be carried out in the name of public order. In the eyes of the law, the public is a space for order and decency.
Construction of Risk and Social Control in the Age of HIV/AIDS
Following the removal of criminal penalties for (male) homosexual conduct in private came the flourishing of lesbian and gay organizations in the 1990s. While homosexuality was created as a problem category by the legal-juridical discourse, lesbian and gay groups engaged in creative efforts to redefine themselves, which resulted in an expansion and multiplication of their social and political space (P. S. Ho & Tsang, 2000). A major goal of the lesbian and gay movement is the enactment of laws that would ban discrimination on the basis of sexual orientation. It is a fight for the right to disclose sexuality without being penalized. The claims for such rights are not so much about privacy as not to have to remain private (D. Wong, 2004). Even now, two decades after the decriminalization of homosexuality and the enactment of the Bill of Rights, the Hong Kong government still turns a blind eye to the needs of sexual minorities for legal protection. A main source of opposition against the antidiscrimination legislation comes from religious groups.
Since the late 1990s, Christian groups, with the Society for Truth and Light as a most notable example, have formed a strong coalition of anti-homosexual crusaders. In 2000, they published a leaflet entitled “The Truth about Homosexuality,” which explains their opposition to homosexuality. Instead of merely relying on moral or religious evidence, they provided health reasons that homosexuals are at a higher risk for a number of health outcomes, including HIV transmission, thus, constructing their own medical discourses in supporting their anti-homosexual stance. Seeing a rising demand for legal protection against discrimination on the basis of sexual orientation, anti-homosexual groups stepped up their campaigns in 2005. They targeted parents, educators, and youth counselors through weekly advertisements in local newspapers. Endorsed by medical professionals, these advertisements were designed to provide scientific evidence against homosexuality (see http://en.wikipedia.org/wiki/The_Society_For_Truth_And_Light) by depicting it as a hazardous public health risk. Citing Department of Health figures, in which heterosexual contact and homosexual contact accounted for 33.8% and 24.6%, respectively, of newly transmitted HIV cases in the first quarter of 2005, they argued that homosexual contact was many times higher than heterosexual contact since the homosexual population constitutes only 2-4% of the total population. On April 29, 2005, 9,800 individuals and 374 organizations signed an anti-legislation petition, which was published in a local newspaper. In the face of strong opposition, the government took a neutral stance and refused to deliberate legal action to redress the inequalities. J. C. Ho (2008) noted that even though East Asia’s new liberal states claim respect for diversity, they will sometimes work closely with the pastoral power of Christian groups to reinstate a system of control over sexuality.
It is interesting to note that the official medical discourse in contemporary Hong Kong no longer condemns homosexuality as a disease, nor does it attribute the root cause of HIV/AIDS to homosexuality. In fact, with regard to containing the spread of HIV/AIDS, the medical view is that a supportive and nondiscriminatory environment is conducive to effective intervention (cf. Hong Kong Advisory Council on AIDS, 2007). Yet, as we shall discuss below, integrated with the scientific approach of epidemiology, medical discourse constructs the HIV/AIDS epidemic as a homosexual disease and, consequently, produces effects of normalization under the veil of objective and thorough analyses of the HIV/AIDS epidemic (cf. Lupton, 1994, 1995).
Epidemiology, the scientific study of factors that affect the health and illness of a population, is considered a cornerstone methodology of public health research and serves as the foundation and logic of interventions. Based on the data collected through surveillance programs, epidemiology discerns the changes in the distribution of HIV/AIDS in the community. A history of the HIV/AIDS epidemic in Hong Kong is articulated by and within medical discourse. Three phases of evolution are identified (Hong Kong Advisory Council on AIDS, 2007; Lee & Wong, 2008). The first phase of HIV infection, between the mid-1980s and early 1990s, was acquired mainly through transfusion of blood or blood products. Heterosexual transmissions became prominent in the early 1990s. This second phase was coupled with the thriving heterosexual epidemic in a number of Southeast Asian countries frequented by local people. At the turn of the century, it began to witness the third phase in which an increased infection was found among local men having sex with men (MSM). It is believed that, while Hong Kong has remained a low HIV prevalence area, this situation is being challenged by a new trend of increasing infection among MSM.
In 2006, of the 268 HIV cases reported, 110 were infected via heterosexual contact whereas 112 via homosexual or bisexual contact (Special Preventive Programme, 2007). According to the figures, heterosexual transmission assumes a stable, yet, still significant role in the third phase. However, attention has been one-sided on the rising trend of infections among MSM. Hong Kong Advisory Council on AIDS (2007), a permanent body formed in 1990 and appointed by the government to advise on AIDS policies in Hong Kong, described the evolving epidemic as “a rising MSM epidemic” (p. 6) and called for “putting brakes on the accelerating MSM epidemic” (p. 12). Based on a projection of 2020 infection figures, the Council predicts huge costs and dire consequences of the spread of HIV/AIDS among MSM.
The consequence of failure to prevent this epidemic would mean 3000 more MSM needing HAART (highly active antiretroviral therapy) by 2020. This would be translated into, human morbidities and social costs aside, a cumulative additional treatment cost exceeding one billion Hong Kong dollars by 2020. (p. 12)
In a risk society, the past no longer drives the present. Instead, the future, as envisaged in the risk scenario, determines the decisions and strategies made in the present (Giddens, 1991). Based on perceptions of the future scenario of HIV/AIDS, fighting the spread of HIV/AIDS among MSM has been recommended as the most pressing priority. The Hong Kong Advisory Council on AIDS (2007) supports its recommendation with the following three pieces of evidence:
| 1. | About a four-fold increase in HIV reports among Chinese MSM, from 21 reports in 2000 to 76 in 2005; |
| 2. | Increase in the proportion of MSM who tested positive (by one nongovernmental organization [NGO]) from <1% in 2002 to 2.5% in 2005; |
| 3. | Identification for the first time of two separate clusters of HIV-1 subtype B infection that involves at least 34 and 12 men, respectively, in 2006. |
It cannot be denied that the number of MSM cases has begun to increase since the turn of the century. However, one must interpret the evidence with caution. The increase in the proportion of MSM who tested positive is based on the voluntary testing service of only one NGO, AIDS Concern. The population of MSM that can be reached by one NGO is limited. It should also be noted that the choice of the years of comparison is selective. Identification of two clusters of HIV infection in 2006 triggered an alarm over homosexual sex. Little attention was paid to the fact that although “homosexual and bisexual contacts were the most common mode of transmission in these two clusters, which accounted for 71% in the first cluster and 83% in the second cluster, heterosexual contact was the risk factor reported in 20.6% and 8.3% of these two clusters, respectively” (Hong Kong Special Administrative Region, 2006) The exclusive focus on the risk population of MSM has resulted in overlooking other risk groups. It reinforces the belief that the surge in HIV cases is due to homosexual sex.
Media reporting the HIV clusters highlighted in the news heading that “sex parties organized through the internet led to collective infection in the homosexual community” (Apple Daily, 2006). Epidemiologists affirmed that the biggest risk factors are sex networking through the Internet and the use of soft drugs among MSM (Lee & Wong, 2008; Yung, 2006). Such a conclusion was arrived at on the basis of an epidemiological investigation of a subgroup of 10 cases in a cluster of infection. The investigation revealed that “8 suspected they got the infection from non-regular, non-commercial sex partners, 7 used the internet to source sex partners, and 4 used soft drugs during sexual activities” (Stanley Ho Centre for Emerging Infectious Diseases, 2007, p. 16). With a small sample size, it is doubtful if the behavioral patterns discovered in a few cases are necessarily representative of MSM. However, generalizations were made by citing the findings of large-scale studies conducted elsewhere. In the assessment of the HIV infections among MSM in Hong Kong, Internet dating has been generalized as a risk factor through a meta-analysis conducted by Centers for Disease Control and Prevention, Atlanta, Georgia in the United States, where 14 studies were used to show that MSM who seek sex from the Internet are more likely to have engaged in unprotected sex, have multiple partners, and have sexually transmitted infections (Stanley Ho Centre for Emerging Infectious Diseases, 2007). The epidemiological approach enables risk to be easily imagined and drawn on a global scale. Internet dating, multiple partnerships, and the use of soft drugs have become the interacting components of what Krieger (1994) called, a web of causation. While each of the interacting factors is neither necessary nor sufficient for causing infection, each is regarded as a contributory factor in the rising epidemic. Quantification, the objective language of numbers, gives the impression that certainty is achieved (Decena, 2008; A. Petersen & Lupton, 1996). Epidemiologists have found that the lifestyle of homosexual men is to be held responsible for the spread of HIV infection in Hong Kong and elsewhere.
To control the accelerating HIV/AIDS epidemic, medical discourses still emphasize the importance of safe sex. Nevertheless, the practice of safe sex is now understood not only as increasing condom use, but MSM are also advised to avoid risky sexual practices, including “having multiple sex partners” and “having sex with unfamiliar people” (Hong Kong Advisory Council on AIDS, 2007, p. 12). This understanding of safe sex is increasingly shared by nongovernmental volunteer organizations. In a statement posted after the identification of the homosexual HIV clusters, AIDS Concern recommended that in order to contain the spread of HIV/AIDS, MSM should reduce the number of sex partners apart from using condoms and going for HIV testing. This definition of safe sex departs from the observations made earlier by researchers such as Jones, Yu, and Candlin (2000) and Lulla (1997). Before the invention of the rise of the MSM epidemic, these local researchers noted that the number of partners matters less than the kinds of engaged sexual behavior. Long-term relationships are more likely to involve unprotected sex than causal encounters, for love and trust are often given as the reasons for not taking precautions. Therefore, it was suggested that people in monogamous relationship be educated on AIDS awareness and safer sex negotiation in couple relationships. With the invention of the clusters of homosexual infection and the diagnosis of a problematic homosexual culture, monogamous relationship is looked upon as a solution instead.
Epidemiology determines the factors that affect the rates of the disease; factors beyond the virus itself. Unlike virology, epidemiology incorporates people’s perception of social relations and behavior patterns into the explanations for HIV infection (Oppenheimer, 1988). Promiscuity, often used to label marginalized groups, has long been perceived to be the cause of the HIV/AIDS epidemic. While medical discourses refrain from using the term promiscuity in the analysis of risk factors, the determination that Internet dating and multiple sexual partners as risk factors echoes the condemnation of promiscuity in moral and religious discourses. The call for putting the brakes on the accelerating MSM epidemic is a demand for being a responsible partner. Now, being a responsible partner is more than the use of condoms and other safety precautions. It requires a change of lifestyle, a determination to give up risky behaviors, refraining from the use of soft drugs, avoiding sourcing partners from the Internet, and observing the rules of a monogamous relationship. Medical discourse, when integrated with the scientific knowledge of epidemiology, produces normalizing effects without having to mobilize the moral or religious discourse of chastity.
Liberalization, Control, and Equalizing Age of Consent
While (male) homosexuality, particularly its lifestyle, has been constructed as posing HIV/AIDS risks to society, the medical discourse is not the only ruling principle in modern Hong Kong. With a relatively independent judiciary and its principle of procedural justice in operation, the rising international norm of human rights was conducive to furthering the liberalization of homosexual laws in Hong Kong. To fight against the unjust laws that govern (male) homosexual sex, forces of resistance were organized on the basis of legal discourse. With the claim to fairness and equal treatment, discriminatory laws were overthrown in a 2005 judicial review. Yet, despite the victory, it is far from successful in severing homosexual behavior from the accused health risks and the related public health consequences.
The petition was filed by a 20-year-old gay activist who claimed that the legal age of consent for homosexual acts had brought him distress by impeding him from forming fulfilling sexual relationships with his partners (Chow, 2004). The court ruled that the law was discriminatory and unconstitutional because it mandated a higher age of consent for gay men than for heterosexuals and lesbians, for whom the age of consent is age 16. The law against homosexual acts in a public space was also struck down as discriminatory and unconstitutional for it targeted homosexual acts between men (So, 2007).
Anti-homosexual religious groups were disappointed with the court ruling and urged the government to appeal. The Society for Truth and Light questioned the competence of the court to make decisions on health issues as they are not doctors (Mitchell, 2006). In their petition against the ruling, the medical construction of HIV/AIDS as a rising MSM epidemic was appropriated in that “according to the statistics of the Department of Heath, the HIV transmission among MSM was continuously on the rise in the past few years. Putting anal sex on an equal footing with vaginal intercourse would have overlooked the risks and produce devastating effect on public health” (see http://www.truth-light.org.hk/statement/title/n2803). Instead of questioning this claim, the judge of high court gave tacit agreement to their medical construction of homosexuality. Citing from a judgment in a decision of the Ontario Court, Judge Michael Hartmann said that ‘the health risks from unprotected anal intercourse are real and ought to be aggressively addressed,” while adding that “there is no evidence that threatening to send an adolescent to jail will protect him (or her) from the risks of anal intercourse” (Hartmann, 2005, para. 150). The judge did not question the medical construction that frames the HIV/AIDS risks of homosexuality in the scientific codes of epidemiology. What he questioned was the effectiveness of controlling such risks through criminalization.
In the judicial review, it was argued that anal sex is the only form of sexual intercourse available to gay couples (Hartmann, 2005). The prohibition of anal sex for people under age 21, albeit including homosexuals and heterosexuals, is discriminatory, for it has a disproportionately adverse impact on homosexual men. While this argument has succeeded in convincing the court that preexisting laws were discriminatory, it reinforces the perception that same-sex relationships between men always involve anal sex. Such a perception underpins the opposition of religious groups to homosexuality, for such opposition is often at the same time an opposition to anal sex. They condemn anal sex as being against nature and a dangerous behavior that increases the rates of disease. Besides an emphasis on the HIV/AIDS risks, anti-homosexual groups have highlighted the physical health risks associated with anal sex: “wearing condoms cannot protect an individual from the risks of rectum cancer, urinary incontinence, diarrhea, anal fissure, and germs entering blood” (see http://www.truth-light.org.hk/statement/title/n2803). The problem, hence, is not only safe versus unsafe sex, but the inherent health risks of receptive anal sex. Homosexual men are seen as engaging in high-risk behaviors that ignore the real consequences to their health and the health of others. Thus, teenage boys should be protected from these dangerous activities.
The rhetoric to link anal sex to homosexuals, as a basic form of sexual expression, paradoxically coincided with the anti-homosexual stance that hypersexualizes homosexuality. Sexualization of risk and hypersexualization of homosexuality are mutually implicated in the medical and legal constructions of homosexuality. In fact, these have added fuel to the regulation of homosexual content in mass media. In 2008, the Broadcasting Authority and, subsequently, the court, ruled that a television show about same-sex couples, titled Hong Kong Connection—Gay Lovers, be excluded from family viewing hours. The provision of family viewing hours protects children from being exposed to scenes of sex and nudity. Since there were no scenes of nudity and undue intimacy in the actual show of Gay Lovers, the logical leap required for such a sanction is that homosexuality is, by its very nature, sex and nudity. As pointed out by Sancken (2010), “the Court misconstrued the ‘sex and nudity’ provision of the Broadcasting Authority Code of Practice in a discriminatory manner such that homosexuality was hypersexualized” (p. 357).
In contrast to the 1980s decriminalization debates, where protection of children and youth was mainly articulated within the moral and legal discourses, the contemporary era has witnessed a proliferation of the discourses that call for youth protection. Medical discourses are concerned with the protection of youth from the health risks associated with homosexuality. Media discourses attempt to protect young viewers from the adverse effects of homosexual content in television shows. Legal discourses have long expressed the concern about protection of children and youth from sexual exploitation and abuse, but this time within the framework of antidiscrimination.
In 2008, the Law Reform Commission proposed the establishment of a sex offender registry that enables employers in fields related to children to check criminal records for sexual offenses of prospective employees. The Commission emphasized that the system would address public concerns; that is, the risk that those with proclivities to sexually molest children may seek out areas of work which provide opportunities for contact with children. The implementation of a sexual conviction record check scheme, which was launched in December 2011, provides a gender- and sexual-orientation-neutral mechanism for the regulation of sexuality. However, instead of covering only the sexual offenses that may be reasonably associated with a high risk of sexual exploitation of children, the record check will cover all kinds of sexual offenses. Offenders could be prostitutes, young people who have consensual sex with underage partners, and those guilty of indecent assault and indecency in public. All these sexual offenders would be on the registry, despite the fact that their criminal convictions have little connection with children.
In the name of minimizing risks, a system of wider and more stringent control can be established, which goes hand in hand with the elaboration of the liberal discourse of human rights and the endeavor for fairer laws and administrative schemes. The triumph in the repeal of discriminatory laws in 2005 should not blind us to the fact that legal mechanisms can achieve control without having to single out a specific group. Laws of general application that do not distinguish homosexual and heterosexual conducts have long been in place to control public behavior. It is a common law offense to commit an act that outrages public decency. The maximum penalty for the offense is seven years of imprisonment and a fine. In the Court of Final Appeal, Chief Justice Andrew Li suggested that we can adopt the recommendation that had been made by the Law Reform Commission in 1983 in creating a new offense of indecent public behavior which is neutral on sexual orientation. Such an offense will “increase protection for all members of the community from any public behavior of a sexual nature, including homosexual behavior, which offends the common standard of decency of the community” (Li, 2007: para. 15).
At this moment, it is not clear how the unconstitutional laws will be reformed in Hong Kong. Nonetheless, as local pro-gay activists have demanded, fair laws, defined as gender- and sexual-orientation-neutral, will be developed to substitute the unconstitutional laws. The development of fair laws will legitimize the (self-)surveillance of public behavior, leaving the prescription of sexual conduct intact. It must not be forgotten that decriminalization or liberalization of laws on male homosexuality often leads to harsher police crackdowns on such deemed illegal practices and greater elaborations of criminal laws and protective mechanisms. With the implementation of the sexual offender registry, homosexuals who commit the offense of indecent public behaviors or violate the legal age of consent would face increasing surveillance and condemnation. This highlights the need for more detailed studies on the varied effects of liberalization of homosexuality laws on the homosexual population and other sexual dissidents.
Conclusion
The-late twentieth century witnessed a coexistence and mutual dependence of legal and medical discourses in providing specific conditions for the construction and regulation of homosexuality in Hong Kong. With the popularization of human right discourses in Hong Kong, control over homosexuality does not operate so much on the division between moral and immoral, or licit and illicit. Rather, different notions of risk are implicated in legal and medical discourses to provide multifaceted and variegated structures for the application of power. In the decriminalization reform, homosexual people have been constructed as an at-risk group who are vulnerable to blackmail and disease transmission. However, this at-risk group is, at the same time, considered to be a risk to the community. As (male) homosexuals have long been stigmatized as predatory males who prey on younger males, the decriminalization of (male) homosexuality is perceived to be putting society, particularly young males, at a greater risk. In order to control the risk, stringent laws have been created in the legislation for consent and the policing of public sex. Fifteen years later, the repeal of discriminatory laws triumphed in 2005. However, in the name of protecting children, a system of wider and more stringent control will be established, which provides little differential treatment between homosexuals and heterosexuals.
The advent of HIV/AIDS in the late 1990s further reinforced the construction of homosexuality as dangerous to society. Unlike the notion of risk articulated in the ideology of law and order, medical discourse adopts an epidemiological approach that frames health risks in scientific codes. Based on the knowledge and statistics produced by public health institutions, homosexual people are seen as the major source and embodiment of the HIV virus, who pose a threat to the future of society. The center of risk consciousness lies not as much in the present as in the future. Medical discourse imposes discipline on sexual subjects through the policing of homosexual culture. The medical field encourages safe sex among MSM, which entails lifestyle changes, elimination of risky behaviors, soft drugs, and partners from the Internet, and encourages monogamy. The insidious danger is that gay support groups and NGOs join the army of disciplinarians under the banner of the fight against the rising MSM epidemic.
Although medical and legal discourses differ in their modes of construction, concerns, and logic, they are intertwined in the production, articulation, and normalization of homosexual people as a risk group. Douglas (1992) pointed out that with risk comes blame. Debates on risk in modern society are analogous to those about sin and taboo held in other times and places, as both involve an exploration of blame. As seen from anti-homosexual campaigns, intertextual borrowing is possible and opponents no longer have to rely on religious or moralist discourse in their condemnation of homosexuality. Rather, they appropriate the notions of health risk from medical discourse in the assertion that the anus is not for the purpose of sexual intercourse. They further claim that putting a halt to the spread of anal sex is to safeguard the health of the younger generation. The safeguard of public health is implicated in the protection of children and youth (see S. Jackson & Scott, 1999). The medical construction of homosexuality as a risk to public health is now linked to the legal construction of homosexuality as a danger to children and youth in anti-homosexual campaigns. The protection of the sensibilities of children provides justification for regulatory practices on homosexual content in mainstream media. Protection of children and youth from the risks of sexual pollution, abuse, and exploitation has formed a dominant ideology that informs the development of control mechanisms over sexuality.
It is also worth noting that even though individuals undergo disciplinary (self-)surveillance imposed by legal and medical discourses, power has not succeeded in creating docile and obedient subjects. Although resistance may not be in the form of radical rupture or overthrowing a system of domination, there will always be a plurality of resistance. T. S. Kong’s (2004) study revealed that despite the policing of public sex, gay men in Hong Kong engage in microforms of resistance that queer public space for the purpose of social interaction and expression of sexual desire. In this article, the historical and political contexts have been taken into consideration, but require further elaboration. Subsequently, for future research, the study can be refined to include a more comprehensive historical-political analysis that incorporates minute details of colonial history in Hong Kong, pre-handover and post-takeover by China, to frame the ensuing influence of each milestone period on legal reforms, and the legal-political climate.