Gay And Lesbian Issues Of Legal Thinking

Homosexuality has been a long-existing accompaniment of history around the world, however, attitudes toward this phenomenon, relating laws and reasons of such differ between China and the western countries. Homosexuality went through the stages in which it was no longer viewed as a moral deficiency, nor a matter of disease; and relevant legal systems have progressed along from treating it as a crime to decriminalization, and finally positive protection of rights. Homosexuality as a legal problem is under the inspection of heatedly debated theories, and determined greatly by various social factors; it is a complex and complicated issue in the field of legal theories and of great realistic importance.This thesis is divided into three chapters. The first chapter is a general introduction of homosexuality and the homosexual people, with contents on the definition, causation, classification and survival status of the homosexuals. This chapter shows the sorting and comparisons of the history and legal history of homosexuality in China and in the West. It can be concluded that due to the differences in the evaluation system and standards, though homosexuality was considered indecent in both civilization, traditionally the Chinese society showed much higher acceptance and therefore much less strictly the legal punishments. The second chapter chose three topics out of the many legal perspectives on homosexuality to focus on:natural law, morality and politicalization. Analysis of this chapter is built on the bases of general principles and legal theories, specified theoretical discussion on the specific problem, and legal reasonings of representative cases, laws and judicial events. Homosexuality has been proven by modern science as nature, and under rational morality it shows no malice or harm. It was politicalization that turned legal attentions toward homosexual people away from being a matter of their own well-being and served for policies or ideological propaganda. It is important that homosexual people are to be rid of this materialized status where they were dehumanized as political tools, and granted legal protection of their dignity and equality as human beings. The third chapter stands on the historical traditions and conditions of the homosexuals in China. The martial and birth systems in the history made it easier for the Chinese people to be tolerant of homosexual people, yet this kind of tolerance is in essence a kind of deliberate negligence. This tradition held the present-day Chinese homosexual people from "coming out" and take in their rights as well as obligations, and induced hidden social problems. This is in tie with the gender distinction and stereotype emphasized in the Chinese laws. Laws such as the marriage law and the criminal law held strong gender stereotype and produced victims with no ways of getting remedy, as well as detriment to the equality, liberalization, freedom, development and self determination of the human race.The purpose of this thesis is to find and compare the similarities and likenesses between Chinese and Western histories, laws and theories, in hope of discovering the appropriate method or principles to relate to China today, and offer suggestions on the legal problems on and involving homosexuals of the Chinese society.