Tencent’s WeChat social media network has blocked dozens of LGBTQIA+ university student profiles, saying that some had broken internet information guidelines, prompting worries of a crackdown on gay content online. The social media site has deactivated accounts linked to the LGBTQIA+ community and university-based LGBTQIA+ groups. In response to the termination of their accounts, Fudan University’s Zhihe Society said “Our activities will not stop due to the closure. On the contrary, we hope to use this opportunity to start again with a continued focus on gender and society, and to embrace courage and love.”
Members of the LGBTQIA+ community have often been fearful of discrimination in China. Homosexuality was decriminalised in 1997, but it was nonetheless regarded as a mental disease until 2001, and same-sex marriage is still illegal in China. While all Chinese citizens are constitutionally guaranteed equality and the inviolable freedom of expression, China’s Cybersecurity Law restricts the dissemination of information that undermines the “social order” and the release of information for and about the LGBTQIA+ community could be considered illegal.
LGBTQIA+ people have certain inherent human rights, regardless of their social status, under the International Covenant on Civil and Political Rights (ICCPR). China has signed this treaty but is yet to ratify it. This does not excuse China from human rights obligations under international law. The ICCPR represents human rights which are granted to all peoples under customary international law, binding against all states as peremptory norms. This includes the right to be treated equally and receive the same freedoms, including the freedom of expression on social media platforms. States have an obligation in international law to protect, respect, and ensure these rights and freedoms. The obligation to realize human rights requires states to take legislative and administrative measures to protect individuals’ rights from private organisations.
The United Nations considered the effect of social media on discrimination in its report of the independent international fact-finding mission on Myanmar, stating “The role of social media is significant. Facebook has been a useful instrument for those seeking to spread hate, in a context where, for most users, Facebook is the Internet.” Social media sites aim to reduce discrimination through their platforms. For instance, on Facebook, content is removed if it attacks people based on their religion, race, ethnicity, or national origin. However, when social media platforms fail in this respect, states ought to prevent discrimination through moderation of these companies. In the case of Joseph R. Biden, Jr. v. Knight First Amendment Institute at Columbia University, the United States Supreme Court considered the regulation of private social media companies for public benefit and to ensure protection of human rights. US Supreme Court Justice Thomas in his concurring opinion stated, “As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
The deletion of profiles on Wechat based on sexual orientation would be considered discrimination and unequal treatment. States are required to take measures to avoid such abuses of the right to equality, hence China’s government must ensure that such discrimination is not overlooked. China committed to five proposals on LGBTQIA+ concerns made as part of the UN Human Rights Council’s Universal Periodic Review in 2019, including enacting anti-discrimination legislation within a year. However, this legislation has yet to be enacted. The next step toward abolishing discrimination and bringing everyone closer together is to prevent homophobic behaviours of private organisations that degrade the lives of members of the LGBTQIA+ community and ensure freedom of speech and expression on all public fora.
Geeta Moni is a student at the National Law Institute University, Bhopal, India