On Thursday last week the Taipei High Administrative Court ruled on a case brought by a same-sex couple who petitioned against the refusal by the Household Registration Office in Taipei’s Zhongzheng District (中正) to register their marriage.
The judge ruled that the office’s refusal to register the marriage between two people of the same sex was unconstitutional and unlawful, and on those grounds he annulled the office’s decision, but the judge also said that, until the necessary legal amendments are enacted, administrative courts cannot require household registration offices to accept the registration of same-sex marriages.
The judge even accepted the office’s response that same-sex partners can “record” (註記) — rather than register (登記) — their partnerships so as to “avoid stigmatization of same-sex marriages.”
The legal maxim “for every right, there is a remedy” is an important principle by which the Constitution safeguards people’s right of action, meaning their right to initiate legal proceedings.
As well as safeguarding people’s rights, the state must ensure that when people’s rights are violated they can eliminate the violation through remedial avenues.
Only rights for which there is a remedy are genuine rights.
However, in this judgement, where there has been a violation of the constitutional right to marriage, the judge declared that there is at present no law on whose basis the plaintiffs can register their marriage. This gives rise to an unfortunate situation in which there is no way to safeguard this right and no remedy available.
Even though lesbian, gay, bisexual and transgender (LGBT) people are in theory living in a constitutionally governed nation, it is as if they are beyond the bounds of the law. This is because in this nation neither the legislature, the executive nor the judiciary, which forms the last line of defense of people’s rights, can ensure that a same-sex couple can walk into a household registration office and register their marriage.
It is because of the slothful Executive Yuan and the Legislative Yuan, which have failed for more than a decade to fulfill their duties on this issue. As a result, no progress has been made on a proposed amendment to the Civil Code in almost a year.
Even though the Council of the Grand Justices’ Constitutional Interpretation No. 748, which rules that the exclusion of same-sex marriage from the provisions of the Civil Code is unconstitutional, has been on the books for nearly six months, the Cabinet and the legislature are still acting as if they do not know anything about it.
This puts staff working at household registration offices in a difficult situation, and it disregards the worries and fears that people in the broad LGBT community endure when facing the problems of birth, illness, old age and death.
Their worries and fears are by no means unfounded.
For example, there is a gay man nearing 60 years of age who every day cares for his partner — a man in his 70s who has suffered a stroke. The two of them are completely dependent upon one another.
There is a lesbian mother who suffers from hereditary ankylosing spondylitis and worries every day that if something happens to her, her five-year-old child might not be placed in the care of her other mother and would become an orphan in the eyes of the law.
There is another man whose partner has been diagnosed with a rare disease and is nearing the end of his life, yet they are excluded from society’s healthcare and welfare systems, which are centered on the institution of marriage — not to mention the problems that they might face in relation to inheritance.
The system of “recording” partnerships, as mentioned by the household registration office and the administrative court, cannot provide substantial safeguards for people’s rights. Furthermore, the difference in treatment between “recording” same-sex marriages not only violates the constitutional principle of equality, but also deepens the segregation that exists between LGBT people and the rest of society.
LGBT people are a disadvantaged social group. As well as being a minority, they also have relatively few political resources.
The question of whether to “come out of the closet” is another thing that makes it hard for members of the LGBT community to attain an advantageous position under the existing laws.
Now people are calling on the government to shoulder its responsibility to bring LGBT people under the system’s protective shield, rather than leaving them to sink or swim as individuals in troubled waters.
Nobody is asking for extra privileges — all that is expected is a way to find security and care for the partners, children and family members of LGBT people, as provided for by the law, just like any other citizen of this nation.
This is the most straightforward and important expectation that anyone would have when nearing the end of their life.
The Council of Grand Justices’ Constitutional Interpretation No. 748 gives the executive and legislative authorities two years to enact or amend laws to give equal marriage rights to same-sex couples. When things are going well, two years might not be a long time, but for those who are struggling at a low point in their lives and simply trying to survive, two years is like a tunnel with no light at the end.
Monday was the first anniversary of the death of National Taiwan University lecturer Jaques Picoux, whose sorrow at the death of his long-term partner, Tseng Ching-chao (曾敬超), a year earlier worsened when he ran into legal pitfalls.
Picoux’s decision to end his own life was precisely a result of all these institutional exclusions and prejudices.
In truth, anyone could be a Jaques Picoux, because you never know what tomorrow might bring or even whether you will live to see it.
Jennifer Lu is coordinator and Teng Chu-yuan is lobbying manager of the Marriage Equality Coalition Taiwan.
Translated by Julian Clegg
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