Thu, Mar 30, 2017 - Page 8 News List

Grand chance for the grand justices

By Jennifer Lu 呂欣潔

The Council of Grand Justices on Friday last week convened to hear oral arguments regarding petitions submitted by gay rights activist Chi Chia-wei (祁家威) and the Taipei City Government. This was a historical moment for Taiwan because it was the first time a formal conversation has been held at the constitutional level in this nation about gender orientation.

Whatever the outcome, it shows that Taiwan is following a progressive path.

There is already a social consensus that this discussion and the resulting constitutional interpretation must bring about some changes from the existing conditions that systematically exclude same-sex partners in Taiwan.

However, different expert witnesses and grand justices might have different opinions as to what kinds of legal status and safeguards should be given same-sex couples. They now have an opportunity to clearly state and express their various views.

This is a very exciting debate, and hopefully this example will show everybody how, in a democratic society, people and organizations with different standpoints can consider and debate issues while taking account of sentiment, reasoning and law.

Associate law professor Bruce Liao (廖元豪), who is acting as the city’s attorney in this case, put it very well when he said: “At this time, when those who are for and against the proposed changes are so agitated, the Council of the Grand Justices is the only forum where the matter can be clearly discussed. This an important example of how a democratic system works.”

It will be very good to see the grand justices’ questions and the expert witnesses’ responses all being discussed according to democratic principles.

Another important discussion that is going on focuses on the nature of marriage, asking whether procreation is an essential condition for matrimony and whether same-sex partners who do not have childbearing potential can be excluded from the institution of marriage.

Ever since marriage came into existence, its significance and conditions have been subject to continual discussion and change.

Our nation’s Civil Code has also changed its provisions and content in tandem with social developments. Marriage has never been confined to a definition of one husband and one wife or having a procreative function.

If having the potential to procreate were a necessary condition for marriage, then postmenopausal heterosexuals, infertile couples and even married couples where one partner is much older than the other should not be allowed to enter the institution of marriage.

Besides, there are already several hundred gay and lesbian households in Taiwan who have their own children, and in the US there are more than 300,000 children who were born to gay and lesbian couples.

It can be seen from this that having children has never been limited to intramarital circumstances and is not necessarily tightly linked with marriage. Same-sex partners who already have children are one example of people having children outside marriage.

Conversely, many heterosexual married couples might not want to have children, for whatever reason. A rigid connection between childbearing and marriage is also the most important reason behind various pressures to which women have been historically subjected. All the more reason, then, not to exclude gay and lesbian people from the institution of marriage.

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