Thursday last week marked the first anniversary of the constitutional interpretation in favor of same-sex marriage. However, for people who support LGBT rights, they probably see the date as marking a full year of delay of an amendment to the Civil Code by the Democratic Progressive Party (DPP).
Several days ago, at an event marking the second anniversary of her inauguration, President Tsai Ing-wen (蔡英文) finally responded to the dispute over marriage equality, saying that her administration would amend the law to guarantee freedom of marriage and the right to equality according to the Council of Grand Justices’ interpretation.
Tsai added that the relevant agencies would propose a plan for the legislative review.
For marriage equality supporters, Tsai’s response was far from satisfactory and has sparked concern: It sounded like clever wordplay resulting from political calculation.
These feelings of discontent are not unfounded. Although the constitutional interpretation in support of the freedom of marriage and the right to equality for LGBT people, the required amendment to the laws has been stalled by the government.
On May 11, the New Power Party proposed passing a draft bill on marriage equality in the legislature, but the proposal was blocked by the DPP.
When asked about the bill during a radio interview, DPP caucus whip Ker Chien-ming (柯建銘) said that the party would not deal with the issue before the year-end elections.
No wonder Tsai’s answer has received far more criticism and disapproval than applause.
Upon closer scrutiny, Tsai’s response only indicates that the government will propose a plan without giving a timetable.
Making promises like this will only give the ruling party the opportunity to keep delaying the amendment, while allowing the anti-LGBT camp more time to manipulate the issue.
Moreover, Tsai did not specify what kind of “plan” it is. Did she mean the amendment to the Civil Code, the legalization of same-sex marriage, or the passage of a special law that grants marriage-like rights to same-sex couples, which is promoted by anti-LGBT groups with an implicit discriminatory attitude?
After all, amid the ongoing disputes over marriage equality, Minister of Justice Chiu Tai-san (邱太三) has taken a strong stance in support of enacting a special act, and the Executive Yuan has never clarified whether it would directly propose an amendment to the Civil Code to complete the legalization of same-sex marriage.
Constitutional Interpretation No. 748 proclaims the freedom of marriage and the right to equality for LGBT people, but it also states that the formality remains “within the discretion of the authorities concerned.”
Even though many legal experts and LGBT advocates have pointed out that a special law would not achieve “equal protection of the freedom of marriage for two persons of the same sex,” as required in the constitutional interpretation, the anti-LGBT camp clings on to the phrase “within the discretion of the authorities concerned to determine the formality” and backs the enactment of a special law instead of legalizing same-sex marriage.
One of the three anti-LGBT referendum proposals — “Do you agree that the right of same-sex couples to live together should be protected through ways that do not require amending the Civil Code” — shows the group’s idea that freedom for same-sex couples does not necessarily have to be achieved through marriage.
This is why the anti-LGBT camp proposes that same-sex marriage should be excluded from the Civil Code and a special act should be enacted instead.
Putting aside the questionable legal logic behind the anti-LGBT camp’s proposals, Tsai’s remark is even more worrying.
Instead of affirming the legalization of same-sex marriage or the realization of marriage equality, Tsai only promised that the government would guarantee freedom of marriage for LGBT people according to the grand justices’ interpretation.
It makes people wonder if her remarks are in fact cunningly contrived political rhetoric and calculation.
Perhaps Tsai’s real purpose is to sit on the fence and to wait until the results of the anti-LGBT referendums come out: If the referendum results show stronger support for amending the Civil Code, the DPP will then consider legalizing same-sex marriage.
However, if the results do not support the amendment, then the Cabinet will propose a special law and take concerted action with the anti-LGBT camp, while claiming that freedom of marriage will still be guaranteed.
It would be great if these concerns only stemmed from over-sensitive speculation rather than as a result of Tsai’s intricately and intentionally ambiguous political jargon.
With its majority in the legislature, instead of asking supporters of LGBT rights to stop meddling, the DPP should come up with more concrete actions if it wants to dispel doubts and redeem a little of its political integrity in terms of LGBT issues.
Jiang Ho-ching is a doctoral candidate in anthropology at American University in Washington.
Translated by Ho-ming Chang
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