1 Introduction
The legal consciousness of stigmatised identities such as LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) people has attracted much scholarly attention from law-and-society scholars across the world (Chua and Gilbert, Reference Chua and Gilbert2015; Chua, Reference Chua2019; Harding, Reference Harding2011; Hull, Reference Hull2016). Researchers generally agree that there is a mutually constitutive relationship between legal consciousness and identity (see e.g. Engel and Munger, Reference Engel and Munger2003). As Lynette Chua and David Engel (Reference Chua and Engel2019, p. 14) put it: ‘the place of law in people's lives is intimately connected to their sense of who they are.’ Using ‘leftover’ women's stigma management as an example, this paper introduces the strategies of ‘buying a licence to be deviant’ and ‘identity-hopping’ to discuss how people with stigmatised identities navigate social and legal discrimination.
‘Leftover women’ is a stigmatising term in China that refers to women who do not get married by the time they reach their late twenties. In China's state media and ordinary people's daily conversations, the term ‘leftover women’ usually equates unmarried women with spoiled products that depreciate in value. Women who have reached marriageable age and have never been married are commonly called ‘leftover women’, regardless of their sexual orientation, social and economic status, or whether they have the intention to marry.Footnote 1 Needless to say, the lack of legal protection and acknowledgement of same-sex partnerships in China has also led to tremendous pressure for queer women who have no interest or intention of entering a heterosexual marriage.
This paper highlights the intersection of gender, sexuality and class in shaping the ways in which leftover women with different backgrounds navigate legal and social discrimination. The media often depict leftover women as immature, selfish and irresponsible, accusing them of failing to organise their lives according to the dominant social norms regarding marriage. The stigma attached to leftover women further jeopardises their career development and affects their financial status. In particular, queer leftover women suffer from an additional layer of stigma – the hostile attitude towards queer individuals. Without the right to marry their same-sex partners, queer women cannot escape their leftover status through a same-sex relationship.
In addition, unmarried women cannot give birth or have access to assisted reproductive technology (ART) services because China's population policies prohibit childbearing outside marriage. The law's denial of leftover women's reproductive rights pushes some women to turn to cross-border reproductive care or underground surrogacy services, both of which require a significant amount of money. Many leftover women emphasise the need to accumulate sufficient financial resources to justify their choice to be deviant and deal with the legal consequences of their evasion of the population policies – a strategy I refer to as ‘buying a licence to be deviant’. Nevertheless, employment discrimination and other forms of unfair treatment leave them with fewer opportunities to achieve this goal and thus ‘buying a licence to be deviant’ is a privilege for affluent or elite leftover women.
For those who cannot afford the licence, identity-hopping is an option that is available to all and especially appealing to queer leftover women. As discussed in section 4, there is a hierarchy of stigmatised identities. At the bottom of the hierarchy are leftover women who self-identify as lesbians – they are the ones who are most active in identity-hopping. Those who identity-hop make use of the law's inability to detect and police ‘deviance’ in certain circumstances. Some queer women go down the path of heterosexual marriage with a plan to get a divorce, either with gay or heterosexual men, for the purposes of covering up queer identities, getting rid of leftover status and enjoying the privilege of having children legally. By hopping from their current stigmatised identities to another, they manage to achieve their goals without violating the law – they use the law either as a protective cover or as a rubber stamp (Liu, Reference Liu2021). They make use of the law to hop from one identity to another in order to alleviate the negative impact of stigma on their everyday life. They also use the law's influential role in labelling identities as a way to move up the ladder of the hierarchy of stigmatised identities. Compared to queer women, the strategy of ‘identity-hopping’ is less attractive to heterosexual leftover women, which once again highlights the importance of seeing leftover women's stigma management through an intersectional lens.
This paper contributes to law-and-society scholarship by offering insights into the impact of one's financial status and sexuality on the ways in which they engage with the law – those with sufficient financial resources have the privilege of resisting or evading the law, while those with fewer financial resources turn to the law's labelling function to hop from one stigmatised identity to another as a way to alleviate stigma, especially queer women who use the law to avail of privileges afforded only to heterosexual citizens.
In the remainder of this paper, I first draw on intersectionality and stigma literature to elaborate on ‘buying a licence to be deviant’ and ‘identity-hoping’. Next, I explain my fieldwork in China, after which I provide a brief analysis of the hierarchy of stigmatised identities among Chinese women. Subsequently, I discuss leftover women's strategy of ‘buying a licence to be deviant’, which reflects their desire to use money to justify their deviant choices in marriage and childbearing. I also analyse how some leftover women use the law to hop from the stigmatised identities of ‘queer women’ and ‘leftover women’ to ‘divorced women’, and how some go through the legal process of getting married to shift from the identity of ‘childless women’ to ‘unfortunate mothers’. In the conclusion, I discuss the contribution of my findings to understanding the impact of the intersection of gender, sexuality and class on one's legal consciousness.
2 An intersectional analysis of stigma production and management
Introduced in the late 1980s by Kimberlé Crenshaw (Reference Crenshaw1989), intersectionality has since invited feminist and anti-racist scholars across the world to problematise single-axis thinking and instead consider the multiple axes of power and difference (Cho et al., Reference Cho, Crenshaw and McCall2013, p. 878; Rice et al., Reference Rice, Harrison and Friedman2019, p. 409). What makes an analysis intersectional, according to Sumi Cho, Kimberlé Crenshaw and Leslie McCall (2013, p. 795), is ‘its adoption of an intersectional way of thinking about the problem of sameness and difference and its relation to power’. An intersectional analysis reinforces the necessity of attention to the relational nature of power relations, which is a defining feature of intersectionality (Collins, Reference Collins2019, p. 46). According to Patricia Collins (Reference Collins2019, p. 46), ‘systems of power co-produce one another in ways that reproduce both unequal material outcomes and the distinctive social experiences that characterize people's experiences within social hierarchies’. Drawing upon intersectionality, this paper complicates current literature on stigma management by highlighting the impact of the intersection of gender, sexuality and class on the ways in which those with stigmatised identities engage with the law.
Existing studies have captured various strategies of stigma management. Goffman (Reference Goffman1963/1986) points out that people manage the potential consequences of being socially stigmatised by deploying strategies such as correcting the stigma through surgery or therapy, devoting efforts to mastering other areas of life, attempting to pass as ‘normal’ and avoiding as many hostile others as possible. Building upon Goffman's stigma-management theory, empirical studies have identified a considerable number of stigma-management strategies, including disassociating from similarly situated individuals and the institutions that serve them (Snow and Anderson, Reference Snow and Anderson1987; Van Laar et al., Reference Van Laar2019), telling fictive stories regarding their past, present and future (Snow and Anderson, Reference Snow and Anderson1987), downplaying their stigmatised status (Taub et al., Reference Taub, McLorg and Fanflik2004), demonstrating alternative images capable of diminishing the effect of a discrediting attribute (Taub et al., Reference Taub, Blinde and Greer1999), participating in social-movement activities to change the perception of the stigmatised group or develop a social support network (Barreto and Ellemers, Reference Barreto and Ellemers2010; Orne, Reference Orne2013; Saguy and Ward, Reference Saguy and Ward2011), finding solace in strong group identities or resisting stereotypes and discrimination (Van Laar et al. Reference Van Laar2019) and appropriating and redefining the stigmatised identity and highlighting other more valued identities that constituted the self (Toyoki and Brown, Reference Toyoki and Brown2014).
While the above-mentioned literature captures popular strategies of stigma management, none of them focuses on the dynamics of identities. There is little scholarly attention to how and why some people with stigmatised identities actively shift from one stigmatised identity to another as part of their stigma-management strategies. To fill this gap, I examine leftover women's usage of the law for identity-hopping in the process of dealing with social and legal discrimination against unmarried women in Chinese society. I demonstrate that while those who have higher social and economic status can afford to buy a licence to be deviant, those who occupy lower positions in the hierarchy of stigmatised identities adopt strategies to hop to identities with higher status.
The importance of situating stigma in specific contexts of culture and power has been emphasised in a few studies (Parker and Aggleton, Reference Parker and Aggleton2003; Link and Phelan, Reference Link and Phelan2001; 2014; Tyler and Slater, Reference Tyler and Slater2018; Worthen, Reference Worthen2020). Bruce Link and Jo Phelan (Reference Link and Phelan2001; Reference Link and Phelan2014) put forward the concept of ‘stigma power’ and argue that power is essential to the social production of stigma, as stigma depends on social, economic and political power. Building upon Link and Phelan's ‘stigma power’, Meredith Worthen (Reference Worthen2020) develops the ‘Norm-Centered Stigma Theory’ to emphasise the importance of norms and social power in stigmatisation. Defining norms as ‘established standards and expectations about beliefs, behaviors, and identities maintained by a particular group and/or society that are culturally bound and organized by social power’, Worthen (Reference Worthen2020, p. 10) suggests that the most important element of identifying and understanding stigma is norms. Worthen (Reference Worthen2020, pp. 15–16) emphasises that social power serves as justification for negative treatment that stigmatised people experience: societies reward norm followers for their compliance and punish norm violators for the violations of social norms. Also, those with more social power will find it easier to follow the norms than those who are lacking in social power (Worthen, Reference Worthen2020, p. 20).
Focusing on the law – one of the most influential social norms in labelling some behaviours and identities as legitimate and some others as illegitimate – this paper complements Worthen's theory by demonstrating that those with more social power will also find it easier to evade the law. In the case of leftover women, ‘buying a licence to be deviant’ is a privilege of affluent elite women that helps some of them save the trouble of identity-hopping. Nevertheless, those with less social power creatively find ways to deal with stigma legally in unexpected but effective ways to manage stigma, such as using the law's labelling function to shift identities. By introducing the strategies of ‘identity-hopping’ and ‘buying a licence to be deviant’, I provide an analytical tool to take intersectionality into consideration when discussing stigmatised individuals’ understandings of and engagement with the law.
3 Fieldwork
3.1 Research site
The data for this paper were collected through qualitative fieldwork that consists of interviews, focus groups and observations. I conducted my fieldwork in Fujian and Guangdong provinces between July and November 2016, with the majority occurring in Xiamen and Fuzhou. I selected Xiamen and Fuzhou as my two main field sites in order to capture the experience of leftover women who live in second-tierFootnote 2 Chinese cities either as local residents or immigrants from nearby areas. Located on the south-eastern coast of China, Fuzhou and Xiamen are the top two popular destinations for young professionals and migrant workers across Fujian province to find work and settle down. The majority of the leftover women I interviewed were born and raised in Fujian. Some came back to Fujian after pursuing their education in other provinces or overseas, while others came from other areas of Fujian to settle down in one of the two cities.
3.2 Interviews, focus groups and field observations
I conducted in-depth, open-ended interviews with fifty-one Chinese women across Fujian and Guangdong. Each interview took approximately one to two hours, but some interviews extended to three hours when the interviewees were eager to share more stories and opinions. I organised three focus groups in Xiamen with leftover women, with six to eight women in each group. To better understand the attitudes of parents of leftover women, I also arranged two focus groups with the parents – one in Xiamen with four mothers and the other in Fuzhou with two parents of two leftover women. Focus groups lasted approximately three hours. My informants were primarily women who are – or used to be – referred to as ‘leftover women’ by their relatives, friends, colleagues, neighbours and society as a whole. I deliberately included married women who went through the process of being leftover women and getting rid of the label. I also visited two parental matchmaking cornersFootnote 3 where parents of unmarried women and men get together to find future marital partners for their children – Yushan Park in Fuzhou and Zhongshan Park in Xiamen.
My status as a native speaker of Mandarin and Hokkien, familiarity with the culture and tradition in the two cities, and my identity as a Chinese unmarried woman facilitated the efforts to cultivate rapport with leftover women and their parents. I asked informants the importance of marriage to them, the sources of pressure to marry, parental expectations, social stigmas, employment and legal discrimination that they encountered, and how they coped with discriminatory laws and policies.
Among the fifty-one leftover women I interviewed, thirteen of them were queer women, with five of them self-identifying as lesbian and seven as bisexual; another woman did not attach a label to herself but emphasised that she could not imagine being in a relationship with another person. While all my interviewees who participated in this study self-identified as ‘women’, three of them mentioned certain circumstances in which they felt uncomfortable displaying femininity.Footnote 4 I am aware of the limitations of using the term ‘women’ to refer to ‘leftover women’ I interviewed, as it may not fully capture the gender identities of all. Thus, my insistence on using ‘women’ is for analytic purposes only: the term is provisional and only used here to signify a social location, rather than personal identification or gender expression.
It is not surprising that those who participated in focus groups are mostly women who self-identify as heterosexual, although some of them may be reluctant to reveal their genuine sexual identities in a group setting where the majority are heterosexual. Focus groups with leftover women were organised as tea parties for participants to exchange ideas on strategies to deal with stigmas attached to leftover women, legal discrimination against unmarried women, employment discrimination and family relations. I facilitated the discussion and only threw in questions when necessary to keep the conversation going. The flexible structure of the focus groups provided space for the women to express what they thought to be the most important issues to discuss. The themes identified by leftover women include but are not limited to filial piety and the pressure to marry, strategies to evade the population policy and deal with social and legal discrimination, and the importance of parental support for young working couples.
Similarly, leftover women who introduced their parents are those who self-identified as heterosexual. For the focus groups with parents of leftover women, parents exchanged ideas about their expectations regarding their daughters’ marriage and childbearing, their understandings of filial piety, as well as their strategies in dealing with pressure imposed by other family members and friends.
4 The hierarchy of Chinese women
Leftover women of different backgrounds experience social and legal discrimination in distinctive ways, with some of them experiencing oppressions in ways that combine the effects of sexism and heteronormativity. Based on the narratives of my informants and my field observations, I map out the hierarchy of stigmatised identities. It is by no means fixed and static, nor does it represent a universal perception of women's status in China.Footnote 5 More importantly, these categories do not stand in isolation – they are interconnected and intertwined to a large extent.
Similar to Goffman's ‘unblushing male’,Footnote 6 Chinese women who occupy higher social status with both privilege and social power are those who are heterosexual, married and with at least a child, urban, well educated, have a good career but are not too ambitious, and come from a well-connected and wealthy family. It is clear that only a very small portion of the population meets all these criteria. Women existing outside these ideal social identity norms tend to suffer from stigmas, depending on their ‘deviance’. More importantly, these privileged identities always come hand in hand, and the failure to comply with one of the norms above may result in the violation of some other norms.
The idea that an individual is incomplete without marriage is still prevalent in China (Choi and Luo, Reference Choi and Luo2016, p. 262; Davis, Reference Davis2014, p. 564). As one leftover woman suggests: ‘If you don't get married, you are incomplete – it is like a process you have to go through. You need to enter a heterosexual marriage in order to fit in’ (Interview, Xiwei, Fuzhou, September 2016). In many industries, unmarried women find opportunities for career development limited as compared to their married counterparts because unmarried women are often perceived as immature, irresponsible and selfish. To some extent, being single has long been regarded in Chinese society as ‘an “anti-revolutionary” crime that harms the well-being of one's parents, grandparents, Chinese society, the Chinese Communist Party and the Chinese nation’ (Jeffreys and Yu, Reference Jeffreys and Yu2015, p. 17). In particular, women in China, as well as in many other countries, are regarded as the guardians of morality and stability during periods of rapid social change (Mann, Reference Mann2011, p. 111).
As there is a tendency for stigma to ‘spread from the stigmatized individual to [her] close connections’ (Goffman, Reference Goffman1963/1986, p. 30), parents of leftover women often feel a sense of losing face in front of other people in their social networks. Elisabeth Engebretsen (Reference Engebretsen, Santos and Harrell2016, p. 165) finds that, in Chinese society, ‘married status carries social and familial recognition that is otherwise unattainable; remaining single carries deep social stigmas’. When society and the media overemphasise the importance of marriage and imply that being single translates into being miserable, parents become very anxious if their daughters fall behind in the competition for suitable marital partners. The anxiety among parents further imposes pressure on leftover women to marry, especially when filial obligations and intergenerational reciprocity continue to be relevant to the institution of marriage in China (Davis and Friedman, Reference Davis, Friedman, Davis and Friedman2014, p. 27; Liu, Reference Liu2018). Filial piety, which traditionally requires adult children to respect their parents unconditionally and prioritise parental needs, wishes and old-age support over their own interests (Ikels, Reference Ikels2004, p. 106), plays a significant role in shaping people's choices in life-changing events such as marriage and childbearing. Being a leftover woman is a violation of the social norms regarding filial piety, since it brings shame to the whole family and negatively affects her parents’ emotional and social status.
Within the category of leftover women, queer women are further marginalised, as they do not follow the norms and practices of a heteronormative society. As George Radics (Reference Radics and Chiang2019, p. 787) writes:
‘Although homosexuality is not illegal in China … and LGBTQ rights are constantly expanding, heteronormative expectations of marriage and children, along with strong filial piety expectations, force LGBTQ people to hide their feelings and prioritize social obligations over individual desires.’
Until today, revealing one's queer identity to the public can sometimes invite trouble to the individual and lead to unbearable consequences such as being forced to resign or get fired. Same-sex relationships have not attracted legal recognition and protection in China, let alone the legalisation of same-sex marriage. The law's denial of same-sex marriage eliminates the possibility for lesbians to get rid of their leftover status via marrying their same-sex partners. Even if they manage to travel overseas for same-sex marriage, it still does not change the fact that they are deemed ‘unmarried’ under the current Chinese legal system.
The majority of heterosexual leftover women I interviewed use ‘normal (zhengchang, 正常)’ to refer to their sexual orientation when asked about their sexual orientation. When I probed further into the meaning of ‘normal’, they defined it as ‘attracted to the opposite sex’. While the reasons behind their reluctance to use ‘heterosexual (yixinglian, 异性恋)’ may vary from individual to individual, their invocation of the word ‘normal’ indicates that they do not feel comfortable to see queer women as ‘normal’. In other words, they have a strong desire to draw a clear boundary between the self-identified heterosexual self and the ‘abnormal’ queer women.
One heterosexual leftover woman's concern provides some insight into heterosexual women's emphasis on ‘normalcy’ in response to the question on sexual orientation: if a woman has been ‘leftover’ for a long time, people will be sceptical about her physical and mental well-being,Footnote 7 including her sexuality (Interview, Kailun, August 2016, Xiamen, China).
Thus, unmarried queer women are the marginalised within the marginalised group – they are at the bottom of the hierarchy of leftover women. The marginalised status motivates these queer women to move up the ladder of the hierarchy of stigmatised identities. They are wary of the danger of coming out: while the stigma attached to leftover women is temporary and will disappear once the individual enters into a heterosexual marriage, stigma associated with queer identities exists permanently with the individuals even if their sexual identities change in the future. As a result, hiding one's sexual orientation is an important element of the process of identity-hopping.
Between the ‘ideal woman’ and queer leftover women, there are at least the following categories: heterosexual leftover women, divorced women, single mothers and childless women. Several queer women have suggested that divorced women enjoy a higher status than leftover women. Yingpu, a lesbian who entered a co-operative marriage and successfully got out of it, suggests that ‘divorced women suffer from less discrimination and stigma than women who have never been married, as at least divorced women sound like “normal” women, more so than those who forgo marriage’ (Interview, Yingpu, August 2016, Xiamen). Tiantian, a bisexual woman who is in a stable same-sex relationship, says that ‘getting divorced is better than remaining leftover because once you get a divorce, your parents will leave you alone’ (Interview, Tiantian, July 2016, Xiamen). Wenjun, who self-identifies as a bisexual woman and at the same time a lala T, says: ‘it makes my parents feel happier if I got married and then got divorced. At least they thought their daughter was normal’ (Interview, Wenjun, October 2016, Xiamen). The emphasis on the privilege of divorced women is less common among heterosexual leftover women, with a few exceptions.Footnote 8
In China, many people tend to depict single mothers as immature and irresponsible women who give birth without providing their children with a complete family (Liu, Reference Liu, Wu, Feng and Lansdowne2019). Not surprisingly, women who do not have children also suffer from stigma because of their violation of the norms related to motherhood and the idea of carrying on the family line. Some of my interviewees were afraid of being referred to as a ‘hen that cannot lay eggs’ (Interview, Xiaoyang, July 2016, Dehua; Pingping, July 2016, Dehua) – a stigmatising phrase that emphasises that a woman cannot be complete without giving birth. Also, failing to provide one's parents with a grandchild is in opposition to the requirement of filial piety.
To make matters worse, China's legal system has eliminated the possibility for leftover women to legally give birth without a husband. According to China's population policy, only ‘married couples’ have the right to have children (Law of the People's Republic of China on Population and Family Planning, 2015 Amendment). A range of regulations and policies put forward by governmental organs have imposed an extra burden on unmarried women's reproduction.
The Technical Norms of Assisted Reproductive Technologies (2008), for example, stipulates that ‘medical staff members who provide assisted reproductive technologies should check and make copies of the couple's IDs, marriage certificate, and other documents that prove the couple is eligible under the Law on Population and Family Planning to carry the baby’.Footnote 9
Through the usage of various regulations and policies, the Chinese state prohibits childbearing outside marriage. Consequently, it gives rise to the anxiety among unmarried women that they may not be able to have children if they delay their marriage for too long, and as a result fail to fulfil their filial obligation.
In most cases, a woman simultaneously belongs to more than one stigmatised category, although she may primarily suffer from discrimination and stigma resulting from one particular category that is assumed to lead to other stigmatised identities. For example, a heterosexual leftover woman falls in the categories of ‘unmarried women’ and ‘childless women’, but she is most likely to be criticised for failing to follow the norms of getting married. At the same time, while heterosexual and queer leftover women share the experience of being ‘leftover’, the latter are positioned at the bottom of the hierarchy and are thus more vulnerable to social and legal discrimination. This explains why some queer leftover women are eager to adopt the ‘married’ or ‘divorced’ women identities to hide their stigmatised identity as ‘queer women’.
5 Navigating through stigma
Money plays a significant role in dividing leftover women into those who have to sign up for other stigmatised identities and those who can save the trouble of identity-hopping through ‘buying a licence to be deviant’. Located at the bottom of the hierarchy of the stigmatised identities, queer leftover women adopt a variety of strategies to hide their queer identities. Some queer women voluntarily sign up for other stigmatised identities, such as divorced women, by seeking legally acknowledged marriage with either gay men or heterosexual men and getting out of it. While some of them use the legal acknowledgement of their marriage for a child, those who do not intend to have children also find a legally acknowledged marriage useful in securing better career opportunities and social status. It is common for queer leftover women to plan for divorce when they seek marriage. They get married in order to get out of it.
This part discusses the strategy of ‘buying a licence to be deviant’ and the difficulties in achieving this goal. Next, I analyse how and why some leftover women use the law's acknowledgement of marriage as an identity-hopping tool to better achieve their goals regarding reputation, filial piety, career development, buying homes, having children and accumulating financial resources for the next move. To some extent, their strategies of going through the legal process for a new identity are subject to financial status – some queer women suggest that their current strategies result from a lack of financial resources to act against the law.
5.1 Buying a licence to be deviant
Leftover women who have the capacity to maintain a decent life face less pressure in rushing into heterosexual marriage, thus they are less motivated to turn to the legal process of getting married and then getting divorced to prove they are ‘normal’. Likewise, those who are financially better off can always find ways to evade the law to have children outside marriage.
Tiantian, a bisexual woman who is in a stable same-sex relationship, has a somewhat passive strategy to deal with the stigma attached to her queer identity – waiting until it is too late for other people to push her into marriage. She is reluctant to come out to her parents, as she does not want to shift the burden of keeping the secret of her queer identity from herself to her parents. She says:
‘coming out to my parents means putting my parents in the closet – they will have to figure out how to deal with the inquiry from their friends and relatives about my marital status. I am relying on “time” to solve the problem.’ (Interview, Tiantian, July 2016, Xiamen)
By ‘relying on time’, Tiantian is waiting for her parents and other people around her to lose patience and gradually accept the fact that she would never get married. Knowing that direct inquiries will eventually slow down once a leftover woman reaches an age that is considered too late for marriage, Tiantian is hopeful that peaceful life will eventually come when she becomes ‘too old to be called leftover women’. Tiantian says: ‘I think they will eventually give up when I am in my mid-30s and beyond, especially if I am living a good life without a man’ (Interview, Tiantian, July 2016, Xiamen). To have a decent life without a man, therefore, is the key to justifying one's choice to forgo heterosexual marriage – a belief that has been frequently mentioned by my informants.
Miao, a twenty-nine-year-old civil servant in Fuzhou who has ‘never had any feeling towards human beings’, expressed a strong desire to buy the way out of the dominant social expectation that a woman has to marry to be considered ‘normal’. Miao says:
‘My parents don't think I have the capacity to make enough money to support myself, and thus, they think I need a man to take care of me. That's where my pressure to marry comes from – I am not financially independent enough to reassure them that I can have a decent life on my own. If I were a woman who has a promising career and a job that pays really well, my parents would not worry so much about me. I have never been in a relationship, and I am not ready for any relationship – I don't think I have ever had any “chemical reaction.” If I can afford it, I would prefer to have a child via assisted reproductive technologies (ART) over marrying a guy. I heard from the news that ART is very expensive as I need to do it overseas, and I am afraid it is not possible if I do not get a promotion and a better salary.’
As someone who stands in between the worlds of heterosexual leftover women and lesbians, Miao is not alone in suggesting that if she had the means to be financially better off, she would have more confidence to confront social pressure and persuade her parents to ‘leave her alone’. Without a good salary, unmarried women face great pressure from parents who tend to push them to find a male partner who can take on the role of the breadwinner of the household.
While Miao desires to prove to her parents that she has the capacity to live without a man, she is also trapped by stigmas attached to unmarried women. Being single reduces the likelihood for women like Miao to get a promotion in the system. Miao complains: ‘People take it for granted that married women are more reliable than unmarried ones, and as a result, priority goes to the married ones when it comes to promotions and other opportunities’ (Interview, Miao, 9 September 2016). Discrimination against unmarried women at work, therefore, further discourages women like Miao from choosing alternative family structures.
Unfortunately, because of gendered norms and employment discrimination, there are many leftover women who have fewer opportunities than Miao to buy a licence to be deviant, regardless of their sexual identities. Ziyu, a thirty-two-year-old heterosexual single woman who does research on gender and family in Fuzhou, suggests that only women who are financially independent have the option to remain single or resist marriage in China (Interview, Ziyu, September 2016, Fuzhou, China). Ziyu sees many single women around her rushing into marriage to improve their living standards or merely for survival in big cities at a time when the unequal distribution of resources between men and women is severe.
When it comes to childbearing, those who are considering having children outside marriage have to deal with the legal barriers by travelling overseas for cross-border reproductive care, turning to underground surrogacy services and paying the fine for the violation of the population policy. The desire to buy a licence can be translated into an approach to resist the law with money.
In a focus group with leftover women, several participants express the desire to accumulate money to evade the law's restriction on unmarried women's reproductive rights. When a leftover woman points out that ‘the most important thing is to be affluent, and we can have as many children as we want as long as we have money’, several others agree with this argument. Some suggest that it is money that matters, rather than the law regarding surrogacy and access to assisted reproductive services. Zeng Xin, a twenty-nine-year-old legal adviser affiliated with a public hospital in Xiamen, advised the rest of the group that
‘if you can afford it, you can think about going to Thailand or other countries for cross-border reproductive care, such as implanting the embryo overseas. It also gives you the freedom to check the sex of the baby – something illegal here in China.’
Yue Shan, a twenty-nine-year-old heterosexual single woman who works as an architect in Xiamen, emphasises that ‘all you need to do after breaking the law is to pay the fine’ (Focus group with Zeng Xin, Kailin, Changying, Mei, Juan, Sumin, Yue Shan, October 2016, Xiamen). The participants reached an agreement that financial status is the most important factor in determining who is qualified to break, evade or resist the law.
The strategy of accumulating sufficient financial resources for a decent life to justify their ‘deviance’ or evade legal restrictions is by no means an easy task to achieve. The difficulties in obtaining a licence, therefore, force those who cannot afford the licence to come up with other strategies, among which identity-hopping with the help of the law is one of the most popular.
5.2 Using the law to hop from queer or leftover to divorced
‘I know people have different understandings of a good relationship, and it makes sense to pretend I am straight in front of them. A legally acknowledged marriage has created some space for myself. I am satisfied with how I balance my private and public lives – I manage to make my parents happy and prove I am “normal” in front of my colleagues. And I am eligible to buy an apartment in Shanghai as a married woman.’ (Interview, Yingpu, August 2016, Xiamen, China)
A few months prior to the interview, Yingpu married a gay man and threw a wedding banquet for their parents, relatives, friends and colleagues. Her marriage is called xinghun (形婚), which is a type of marriage between a gay man and a lesbian to cope with familial and societal pressure to marry (Liu, Reference Liu2013, p. 495; Engebretsen, Reference Engebretsen, Santos and Harrell2016, p. 165). By going through the legal process of registering as married couples and throwing wedding banquets, they managed to gain legal and societal recognition of ‘normalcy’ and some privileges exclusive to married couples. Yingpu's main motivation to choose xinghun is ‘to gain a sense of social recognition’ through entering and leaving a legally recognised marriage. Yingpu says:
‘being a civil servant in China means you have to fit in and comply with dominant norms. Otherwise, it is going to hurt your career if your colleagues find out you are different. Heterosexual marriage is like a protective cover that helps you reduce the damage caused by social stigmas and legal discrimination.’ (Interview, Yingpu, August 2016, Xiamen)
Yingpu also emphasises the need to fulfil her filial duty by entering into a ‘decent marriage’ that makes her parents relieved and have something to show off. In addition, Yingpu wanted to marry in order to purchase a home in the future. This is because under the current housing policy in Shanghai, an unmarried individual is not eligible to make the purchase – a discriminatory policy against those who refuse heterosexual marriage.
Yingpu's strategy worked well and according to plan. Two years after the interview, she moved from the local-level office to the Beijing office – a promotion that enabled her to create an image of a professional woman who was too occupied with work to take care of her family. Soon after, she divorced her ‘husband’ and left xinghun. Since then, she seldomly encounters inquiries about her marital status (follow-up conversation with Yingpu, March 2020, online via Wechat). By switching from a leftover woman to a divorced woman, Yingpu managed to cover up her deeply stigmatised sexual identity and achieve her career goals.
As a lesbian, Yingpu relied on identity-hopping to deal with stigma for career development, housing security, social recognition and parental satisfaction. It was done through entering into a legally acknowledged marriage in order to get a divorce – a choice that Yingpu was proud of and considered to be the right thing to do as a mature individual, a responsible citizen and a filial daughter. Throughout the interview, Yingpu keeps stressing that ‘[i]t is pointless to stand out and fight for social and legal changes. Sacrificing an individual is unlikely to challenge the social environment’.
To my surprise, holding a law degree in hand, Yingpu is against legalising same-sex marriage in China. She says:
‘If I were the lawmaker, I would not pass a law to recognize same-sex marriage, as it would encourage more people to choose this kind of family formation. This is dangerous for the nation to survive, given the low fertility rate in China.’ (Interview, Yingpu, August 2016, Xiamen)
Linking same-sex marriage with the survival of the nation, Yingpu prioritises the interest of the country over queer women's marriage and reproductive rights.
This viewpoint has been confirmed in my interview with Yan, a twenty-five-year-old interior designer who is currently in a same-sex relationship. Yan is empathetic towards law-makers who are criticised for refusing to pass the law:
‘Legalizing same-sex marriage is against our culture. Lawmakers cannot legalise it, even if they were supportive of same-sex marriage at heart. My understanding is that as queer, what we can do is to try our best to live up to dominant social and moral standards without causing trouble to other people.’ (Interview, Yan, July 2016, Xiamen)
Unlike Yingpu, who actively sought a gay ‘husband’, Wenjun entered into a heterosexual marriage without letting her husband know that she may prefer to be in a same-sex relationship. Wenjun was convinced that ‘coming out and living as a lesbian is not as safe as pretending to be a heterosexual woman’ (Interview, Wenjun, October 2016, Xiamen). She says: ‘I don't want to become the target of other people's gossip. When social discrimination against LGBT folks prevails, I want to protect myself. Also, I am a nurse and coming out would cause me trouble at work’ (Interview, Wenjun, October 2016, Xiamen). Therefore, a heterosexual marriage acknowledged by the law was not only a protective cover to free her from stigma and inquiries about her sexual orientation and marital status, but also a ‘credential’ to make her a ‘good’ nurse.
Wenjun is not actively seeking a same-sex partner because she thinks she is not ready yet: ‘I have to first make sure I am financially capable of providing for my future partner. I always wants to be the one who takes care of my girl.’ Wenjun likens her preparation for the new life to a process of sharpening her knife – ‘when my knife is sharp, I will go and fight for my new life’. Wenjun entered into a heterosexual marriage to fulfil her duty to please her parents and protect herself from social discrimination when she was still accumulating financial resources to buy her way out of heterosexual marriage; only when she has sufficient money can she start her journey of finding a same-sex partner and have a ‘secret’ life. Hopping from her secret identity as a bisexual woman with a strong preference for a same-sex partnership to the identity of a married woman, and eventually a divorced woman, Wenjun has benefited from her stigma-hopping strategy and managed to minimise the negative impact of her queer identity.
Like Yingpu and Wenjun, several queer leftover women I interviewed emphasise the benefit of going through the legal process of getting married and getting a divorce in order to shift their identities from queer women to divorced women. Since one's divorced status is unlikely to invite as much gossip and stigmatisation in today's China, entering marriage with an aim to get out of it enables some leftover women to reduce the pressure caused by their stigmatised identities. By deliberately inviting and signing up for another stigmatised identity as divorced women, these leftover women manage to put a stop to the ongoing intimidating inquiries of their marital status.
The law serves as a handy tool for queer women to announce their status in an official and unquestionable way that otherwise cannot be easily achieved. In other words, they use their legally acknowledged marital status as ‘married’ and ‘divorced’ to convince others that they are ‘normal’ in terms of sexual orientation. They use the law to do the work that would otherwise require a lot of ‘performance’ in everyday life to hide their queer identities. Their reliance on the law to announce their marital status makes the announcement serious and real to their colleagues and relatives.
Heterosexual women, however, tend to consider the strategy of ‘entering a marriage in order to get out of it’ to be an option only for those who are really desperate. Shulei, a thirty-year-old financial project manager who had recently got rid of her leftover status through marrying a local man in Xiamen, cautioned other participants in the focus group that one should not rush into marriage for a divorce. According to Shulei: ‘It is better to be leftover than having trouble getting out of a marriage – sometimes it is difficult to get a divorce because there are so many different kinds of responsibilities and relationships involved once you get married’ (Focus group, Shulei, October 2016, Xiamen). Jiani, a twenty-eight-year-old heterosexual single woman who worked as an administrative assistant in Xiamen, says:
‘It is very risky to use the legal process of getting married as a way to get rid of the label of “leftover” women. The chances for divorced women to be able to find a marital partner again are extremely low because never-married men will not consider divorced women. As a result, divorced women are selling themselves cheaply in the marriage market. This is especially the case if the divorced woman already has a child to feed. It costs a lot to raise two children in today's China – one from the woman's previous marriage and one from the newlyweds. This is not something everybody can afford.’ (Interview, Jiani, August Reference China2016, Xiamen)
What Shulei and Jiani emphasise is the reality that the process of getting a divorce and the life afterwards would still be difficult for women who choose this path.
Lijing, a twenty-six-year-old heterosexual single woman who works as a civil servant in Dehua County, also ranks this strategy at the bottom of all available options. Lijing suggests that the consequence of getting a divorce is unbearable for a civil servant:
‘as someone who works for the government, people will expect you to follow a higher moral standard. Otherwise, how can you have the authority to govern the citizens? You have to avoid getting a divorce, as it brings you bad reputations.’ (Interview, Lijing, July 2016, Dehua County)
It may appear on the surface that Lijing's viewpoint is at odds with that of Yingpu when it comes to the strategy of ‘going through the legal process of getting married to get rid of it’. Nevertheless, seeing it from an intersectional lens, we will soon realise that their sexual identities determine how they interpret and rank the hierarchy of stigmatised identities, thus affecting the ways in which they understand and engage with the law.
To Yingpu, using the law's acknowledgement of ‘heterosexual marriage’ to sign up to be a divorced woman protects her from suspicion and gossip of her queer identity at work. As a heterosexual woman, Lijing does not share the same concern and thus sees fewer merits to being a divorced woman. To Lijing, getting a divorce means moving down the ladder instead. Likewise, when Wenjun, Yingpu and other queer women consider it a good strategy, Jiani's concern about the difficulties for divorced women to find love also echoes in the narratives of quite a few heterosexual leftover women. As being a ‘divorced woman’ remains a stigmatised identity, heterosexual women who have hope for marriage are not as keen as their queer counterparts in getting rid of their leftover status by signing up for a marriage with the aim to get a divorce. Ironically, in this sense, having a legally approved heterosexual marriage and a divorce certificate is more important to queer women than their heterosexual counterparts.
5.3 From a ‘hen that cannot lay eggs’ to an unfortunate mother
Married women's privilege to have children legally is another key factor that attracts many leftover women, either queer or heterosexual, to go down the legal process of getting married. The idea of ‘marrying for a child’ is frequently brought up by my informants, although they understand that rushing into a marriage may render them ‘unfortunate mothers in a family without genuine love between the couple’. Having a child legally entails benefits that are otherwise unattainable for those who are single mothers or those who remain childless. The latter is often referred to as a ‘hen that cannot lay eggs’. At the same time, having a child legally also reassures one's employer about the employee's moral standard and reliability.
It is an unspoken rule in Chinese society that in the process of hiring, unmarried women should be avoided and priority should go to men and married women who have already fulfilled their childbearing tasks. As Chunyan Zheng et al.'s (Reference Zheng, Ai and Liu2017, p. 177) interviews with court leaders in China demonstrate, male preference in recruitment is prevalent in the hiring process of civil servants. One female court leader in Zheng et al.'s (Reference Zheng, Ai and Liu2017, p. 178) study says: ‘My personal preference is to [hire] men. From the employer's perspective, women have more problems, such as the problem of childbearing, etc.’
A news article published on China Youth Daily (Reference China2016) also confirms that single women suffer from more discrimination in the process of looking for work than women who have already had children, which leads to a prevalent belief among single women that they need to get married and have a child as soon as possible. Therefore, the law's restriction of childbearing also jeopardises leftover women's career opportunities.
In a focus group with leftover women, participants all express concerns about the negative impact of the shift from the one-child policy to the universal two-child policy on women's career: in order to become a competitive candidate in the job market, a woman has to have two children to prove that she does not have to go on maternal leave anymore (Focus group with Xiaoping, Yiyue, Guojing, Yunting, Xiaoting, Yanyan, Caixia, October 2016, Xiamen). Guojing, who lost an opportunity for promotion because of her pregnancy, advised the rest of the group to hurry up and give birth to two children in a row as soon as possible in order to be competitive for jobs and promotions in the future. The close linkage between childbearing and career development makes it crucial for leftover women to hop from a ‘hen that cannot lay eggs’ to a mother.
As entering a heterosexual marriage is a prerequisite of giving birth, several queer women have or are in the process of seeking a man for a marriage certificate to have a child. Wenjun, the woman who entered a heterosexual marriage without revealing her sexuality to her husband, was straightforward about her desire for using her marriage to have a child. Wenjun learnt from the news that childbearing outside marriage was illegal and the mother had to pay a huge amount of money as a violation of the law, which she could not afford. Wenjun also thought about sperm banks before, but she was afraid that she had little control over the process as she had to do it illegally as a single woman (Interview, Wenjun, October 2016, Xiamen).
Yan, a twenty-five-year-old interior designer who is in a same-sex relationship, always planned to have a child via xinghun. Nevertheless, Yan never planned to stay in the same household with the ‘husband’ for too long, as her plan is to leave xinghun once her child grows up and is able to understand Yan's choice (Interview, Yan, July 2016, Xiamen). Xiaoning, a twenty-five-year-old lesbian who works as a sales manager at an insurance company, shares the same concern with Yan. Xiaoning says: ‘I will definitely want a child out of xinghun. The task is not completed if I don't have a child out of it, as my parents will keep asking me for a grandchild’ (Interview, Xiaoning, September 2016, Fuzhou). Xiaoning's ideal type of xinghun is one that allows her to bring up the child with the help of the gay ‘husband’, at least sharing the financial responsibility of childcare and education.
All three of them chose to go through the legal process of getting married after they realised that they could not afford to have a child via travelling overseas for ART services and did not have money to seek help from underground surrogacy agents in China (Interview, Yan, July 2016, Xiamen, China; interview, |Xiaoning, September 2016, Xiamen, China). Yan says:
‘my biggest concern of not having a marriage comes from my lack of capacity to be financially independent. I will not choose xinghun if I can support myself and my family financially. Although my parents would still be against my decision to forgo marriage, I would feel more confident if I am financially independent when I negotiated with them.’
Likewise, Xiaoning's decision to seek xinghun was made after a careful evaluation of the financial situation at that moment. For Xiaoning, xinghun is a co-operative relationship between the two at a time when the two parties need each other to fulfil the task together financially.
Some heterosexual leftover women also rank having a child as the primary reason for going through the legal process of entering a marriage. Hongmin, a twenty-seven-year-old single heterosexual woman who works as a pharmacist in Putian, is worried about missing the best childbearing age if she does not find a partner as soon as possible. She likes children a lot but is hesitant about starting a relationship: ‘It is highly likely that you would need to sacrifice a lot financially and mentally if you choose to get married. I would not think about marriage if childbearing outside marriage is allowed’ (Interview, Hongmin, September 2016, Putian).
Aiyin, a thirty-year-old heterosexual single woman and an actuary in Xiamen, says: ‘What I want most out of a marriage is a child. I want a child who can carry on my genes’ (Interview, Aiyin, August 2016, Xiamen). Born to an affluent family with permanent residency in New Zealand and Hong Kong, Aiyin's backup plan is to seek surrogacy overseas if she does not end up finding the right person. Her privileged familial and financial background has ensured her the freedom to ignore China's population policies.
The law's restrictions on childbearing affects leftover women in different ways, depending on their sexual orientation, financial status, among other factors. Leftover women's strategies to deal with the law's restriction are, therefore, shaped by their identities and financial status. Hongmin is the one who cares most about the law among all my informants for this study. She complains about legal discrimination against unmarried women and the law's sexist and androcentric nature: ‘many unmarried women desire to have children, which should not have anything to do with marriage. The law's denial of unmarried women's reproductive rights further reinforces the existing stigma attached to single mothers’ (Interview, Hongmin, September 2016, Putian). The law's restriction is less concerning to Aiyin: with enough money for surrogacy, Aiyin has the privilege of evading the law by getting things done overseas, while this is not an option for Hongmin. When asked about her attitude towards legal discrimination against unmarried women's reproductive rights, Aiyin is not concerned about it at all: ‘I can either go to Hong Kong or New Zealand to get things done there, as I am a permanent resident of both places’ (Interview, Aiyin, August 2016, Xiamen).
Yan is not interested in the discussion on single women's reproductive rights. Yan has never thought about the legal barriers of having a child on her own: ‘I am always certain that I will have a legally acknowledged marriage, i.e. xinghun, with which I will be qualified to give birth’ (Interview, Yan, July 2016, Xiamen, China). Xiaoning is more concerned about the hardship facing single mothers in the process of taking care of the child on her own than the law's denial of single women's reproductive rights (Interview, Xiaoning, September 2016, Fuzhou).
At a time when the law does not allow childbearing outside marriage, both queer women who cannot afford ‘illegal’ childbearing and affluent women who can easily get it done overseas do not care much about legal discrimination against unmarried women: the former will likely turn to xinghun even if ART services become available to single women because of the lack of financial resources; the latter will not care too much about the legal restriction for the reason that they can find ways to evade the law. Thus, those who are in the middle, such as Hongmin, are those whose decisions are most likely dependent on the law. This situation also leads to a strong desire for ‘buying a licence to be deviant’ among leftover women.
From Wenjun's usage of heterosexual marriage as a shelter to sharpen her knife for a same-sex relationship, to the compromise made by Yan and Xiaoning by entering xinghun, to Aiyin's dismissal of the law's restriction, financial resources always shape or even determine their understandings of and engagement with the law. While many leftover women make use of the law to hop from one stigmatised identity to another, some are under greater pressure to succeed than others. Their different approaches to managing stigma reveal that one's financial status has to be taken into consideration when analysing the way in which she engages with the law.
The strategies of ‘buying a licence to be deviant’ and ‘identity-hopping’ lead to leftover women's focus on fixing or improving the self, which dilute leftover women's interest in asking for reproductive rights and legal recognition of same-sex marriage. The prioritisation of national survival, the emphasis on moral standards of the self and the desire to use money to evade the law all fall under a typical form of legal consciousness in China – what Sida Liu (Reference Liu2021) refers to as ‘playing ostrich’, meaning that many ordinary Chinese people have developed the habit of keeping silent about political affairs and focusing more of their attention on personal well-being and economic prosperity, especially after the tragic ending of the 1989 Tiananmen student movement. Leftover women's stigma-management strategies offer a vivid picture of the world underneath the surface – when they put their heads in the sand, they are finding their own ways to negotiate with social discrimination as individuals, rather than being obedient and doing nothing to resist the law and dominant social norms.
6 Conclusion
In this paper, I introduced the strategies of ‘buying a licence to be deviant’ and ‘identity-hopping’. I analysed how leftover women strategically rely on the law to get rid of one stigmatised identity and sign up for another identity. From an intersectional lens, this paper advances law and society's study of stigma and discrimination by emphasising the hierarchy of stigmatised identities and the strategy of using the law's power of labelling identities to hop from one identity to another. It also demonstrates how the intersection of gender, sexuality and class complicates the ways in which leftover women understand and engage with the law.
Drawing upon fieldwork in China, I found that some queer leftover women go through the legal process of entering and leaving heterosexual marriage to get rid of the leftover status and cover their queer identities. They marry for the goal to divorce. They use the law's acknowledgement of marriage and divorce to announce their marital status to the public in order to prove their ‘normalcy’ and alleviate stigmatisation. For queer leftover women, the law is an effective tool for identity-hopping. Heterosexual leftover women, however, have more concerns about this approach because ‘divorced woman’ remains a stigmatised identity in Chinese society. The law's acknowledgement of heterosexual marriage and divorce, therefore, is more attractive to queer women in the process of stigma management – the intersection of gender and sexuality positions queer leftover women in a lower status in the hierarchy of stigmatised identities and forces them to be more active in moving up the ladder.
Legal discrimination against unmarried women's reproductive rights has motivated some leftover women, queer or heterosexual, to go through the legal process of getting married. A legally acknowledged marriage enables them to hop from a ‘hen that cannot give birth’ to an unfortunate mother. Queer women and affluent heterosexual leftover women found the legal discrimination against unmarried women's reproductive rights less influential in shaping their marital decisions. The former are seeking co-operation with men to support the next generation, since they are concerned about the high cost of raising a child in Chinese society. The latter are financially well prepared to evade the law by exercising their reproductive rights overseas or turning to underground surrogacy and other reproductive services. For the latter, identity-hopping is an option but not necessarily a must because they have the resources to ‘buy a licence to be deviant’. Unfortunately, employment discrimination against leftover women and married women without children prevents many leftover women from accumulating sufficient financial resources, making ‘buying a licence to be deviant’ a privilege of affluent leftover women.
Based on leftover women's experience in managing stigma, this paper has documented their creative but unexpected ways of using the law to shift from one identity to another in order to be qualified to be deviant. It is my hope that my study will serve as a springboard to invite future research on how the interaction of gender, sexuality and class affects the legal consciousness of those with stigmatised identities.
Conflicts of Interest
None
Acknowledgements
This research was carried out with the aid of a grant from the International Development Research Centre, Ottawa, Canada. An earlier draft of this paper was presented at the ‘Stigmatization, Identities and the Law: Asian and Comparative Perspectives’ workshop on 23–24 June 2020, supported by Academic Research Fund Tier II (MOE2018-T2-1-101) and hosted online by the Centre for Asian Legal Studies at the National University of Singapore. I would like to thank the two anonymous reviewers and the editors of this Special Issue, Dr Lynette Chua and Dr George Radics, for their invaluable feedback. I am also thankful to my colleagues and friends for their insightful comments, especially Sida Liu, Ke Li, Rachel Stern and Di Wang.
