【Abstract】Homosexual marriage legalization is becoming a significant step during law development while homosexual is becoming a hot topic discussed by people around world. Although more and more countries in the world started to accept the existence of homosexual and accelerated the legislation proceeding， homosexual still remains a sensitive topic in China. This paper will base on the general situation of homosexual in China and provide the authors opinion on this question.

【Key words】homosexual marriage China situation legislation

I. The situation of homosexual in China nowadays

1.1 The quantity of homosexual people in China

In 2004， Chinas official published the data of Chinas gay men at the first time. The number of male homosexuals has reached 5 million to 10 million. According to the report in “Spring City Evening News” in 2013， at present the population of homosexual people was estimated to range among 13 million and 65 million， which accounts for 3%-4% of the total population.

1.2 Public and official attitudes to homosexual

In 2007， professor Li Yinhe made a research about the recognition of homosexual among Chinese public in middle and large cities. According to the result， in light of the question “what do you think about homosexual？”， there were 20.8% of urban residents in China thinking its “not wrong”； 32.3% thinking its “wrong， but not entirely wrong”； 37.8% thinking its “completely wrong”； and 9.3%s attitude is “unknown”. It can be seen that Chinese peoples attitude tended to follow the Doctrine of Mean.

In respect of official attitude， our governments attitude is always very cautious. On one hand， the governments attitude has changed to some degree. In the “Criminal Law” promulgated in 1997， the crime of rogue was abolished， which meant that the homosexual was not criminal since then. In the “Mental disorders classification and diagnostic criteria” （Third Edition） published in April 2001， homosexual was no longer regarded as a symbol of disease. Additionally， 2005 CCTV “News Survey” broadcast a program introducing homosexual. On the other hand， theres no denying that Chinas official attitude towards this problem remains unclear and sensitive nowadays， especially in legislation. More than 100 homosexual peoples family issued a public letter to call for the same-sex marriage legislation in Guangzhou in March 2013 but our government has not responded to this.

II. Heated debates in Chinaendprint

Since the legislation related to homosexual remains in blank at present， more and more people call for a clear attitude of Chinese government. With regard to this question， people in China are also divided into two sides.

Supporters think same-sex marriage legislation in China has a bright future. They think this is a reveal of human rights and nobody should be prejudiced by others. Life is equal and the rights of freedom and pursuit of happiness cannot be deprived. By establishing marriage and family， homosexuals can pursue a happy life， which is the basic human rights. The legislation of our country should listen to the appealing from this huge population and learn from other countries about homosexual legislation to protect the freedom of same-sex marriage.

Opponents think the legislation of homosexual marriage will lead to a series of moral landslide. Professor Jiang Yue believes that allowing homosexual marriage means that when homosexuals claim that their marriage doesnt affect social interests or others interests， then the incest， pedophilia and polygamy will also seek legal status based on the same reason. This will undoubtedly lead to the confusion of social ethics and family structure， even hinder the development of the society.

III. Thoughts about Chinese same-sex marriage legislation

Although the situation of homosexuals in China is not very optimistic， we should acknowledge that everyone is equal and homosexuals also have their rights to seek for happiness. The homosexual legislation will become an inevitable trend in the protection of human rights and our country can make reference to legislation in western countries to prompt this process. Here are some suggestions：

◎ Regulate the content of media communication and guide people to understand homosexual correctly.

◎ Enact special law for homosexual marriage based on “Marriage Law” considering our traditional ideology.

◎ Clearly define the rights and obligations of same-sex couples to maintain social order.

作者簡介：成栩慧（1996-），女，漢族，江蘇南通人，現(xiàn)就讀于南京大學(xué)法學(xué)院法學(xué)系14級(jí)本科。endprint