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Stefan,
Thanks a lot for taking the time to review the patch. As you correctly say, the current pathch's goal is just to align with existing behavior in the Python implementation of ET.
I understand the problem you are describing, but at least it's not a regression vs. previous behavior, while the original problem this issue complains about *is* a regression.
I propose to commit this to fix the regression and open a separate issue with the insight you provided. One easy solution could be to just require the encoding to be UTF-8 when passing unicode to the module, and to document it explicitly. Another solution would be to actually fix it in the module itself.
If there is a decision to fix it, the fix should then cover both the C and Python implementations, in all possible places (all functions reading XML from strings will also suffer from the same problem, since they get passed to xmlparse_Parse in pyexpat, which just uses PyArg_ParseTuple with the "s#" format - encoding unicode in utf-8 without looking at the XML encoding itself).