The first gay marriage case has been registered by a Chinese court. But the lawyer who filed it has been sharply criticized in an op-ed by a prominent lawyer who was once liaison of the central government to the semi-autonomous Hong Kong Government.
In the past courts rejected cases summarily or just ignored them if they were “sensitive”. But in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.
Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).
We will soon see if China’s courts – which have no history of innovation without legislative authorization – will apply the broad principles of equal protection which its constitution declares and many laws embrace. – gwc
by Elizabeth M. Lynch
For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.
Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not….