As the curtain closed on the Nov. 24 elections, several analyses were issued offering various perspectives of what message the voters sent on election day. Politically, the gains and losses of the ruling and opposition parties differed drastically, and much attention has been given to the shifting political map and the after-effects for the Democratic Progressive Party and the Chinese Nationalist Party (KMT). As for the referendums, the results show a “Chinese Taipei” saying no to possibly nuclear-contaminated food, but yes to nuclear energy and that a majority opinion on same-sex marriage has emerged.
Meanwhile, international media outlets’ interpretation of the election results has focused on the victory of the China-friendly opposition and the setback for the legalization of same-sex marriage.
Same-sex marriage receives much attention because the issue not only concerns legal rights, but also has far-reaching implications for social, ethical, educational, economic and other issues. The issue is given great importance in Taiwan and is also a controversial issue internationally.
The Council of Grand Justices in May last year issued Interpretation No. 748, which ruled that the Civil Code’s exclusion of same-sex marriage contravenes constitutional guarantees of equality and that the failure to protect same-sex marriage is unconstitutional.
According to the ruling, “the authorities concerned shall amend or enact the laws as appropriate, in accordance with the ruling of this Interpretation, within two years from the announcement of this Interpretation.”
With the interpretation, Taiwan looked set to be the first Asian nation to legalize same-sex marriage. However, the implementation has been extremely controversial, as exemplified by the large number of referendums following the lowered threshold for initiating a referendum.
Same-sex marriage-related proposals accounted for half of the 10 referendums on Nov. 24: same-sex marriage supporters proposed two referendums — on equal marriage rights and on gender equality education — while the opposing camp proposed three — on the definition of marriage, gender equality education for suitable ages and a separate same-sex marriage act.
As it turned out, the three anti-LGBT referendums passed by a considerable margin, and the two pro-LGBT proposals were voted down by an equally considerable margin.
Anti-LGBT groups think that the large majority demonstrated by the results is a victory for family values, traditional marriage and the education of the next generation. The pro-LGBT rights camp, on the other hand, feel frustrated.
Generally observing the referendums from a pro-LGBT perspective, international media outlets have interpreted the referendum outcome as a huge blow to Taiwanese liberalism and the nation’s reputation as an Asian pioneer for same-sex marriage rights.
Same-sex marriage is also highly controversial internationally. Data show that only 25 of about 200 countries recognize same-sex marriage legally. The great majority of countries range from partial legalization of same-sex marriage to completely prohibiting it.
Ten countries, mainly Islamic, even punish homosexuality with the death penalty.
In the EU, for instance, 15 of its 28 member states have legalized same-sex marriage. Austria, as well as non-EU member Switzerland, only allow same-sex couples to register partnerships, but same-sex marriage is not yet legalized, although it is to become legal in Austria on Jan. 1.
In the US, California was the first state to legalize domestic partnerships for same-sex couples, while the legal status in other states varies. It was not until 2015 that the US Supreme Court ruled that states must allow same-sex marriage.
The same-sex marriage legalization processes in other advanced nations offer ample references for Taiwan. The UK took nearly 10 years to proceed from recognizing civil partnerships for same-sex couples in 2005 to legalizing same-sex marriage in England, Wales and Scotland in 2014. Northern Ireland continues not to recognize same-sex marriage.
France took 14 years to move from accepting same-sex civil partnerships in 1999 to officially legalizing same-sex marriage in 2013. Germany went through a similar procedure over 16 years, recognizing registered life partnerships in 2001 and officially legalizing same-sex marriage last year.
Due to these circumstances, the UN passed the “Human rights, sexual orientation and gender identity” resolution in 2011 to recognize the rights of LGBT people and draft a report “documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity.”
Nevertheless, same-sex marriage is not listed as a right to be universally protected either in the UN’s Universal Declaration of Human Rights or in the two UN Covenants on human rights.
Taiwanese society generally views same-sex relationships as a matter for the two individuals involved and most give tacit approval and show tolerance. This is evidenced by that in the workplace, academia and the military, it is forbidden to discriminate against gay people and that gender reassignment surgery is permitted. Also, most cities and counties allow gay couples to register through the household registration system.
Interpretation No. 748, which ruled that the chapter on marriage in the Civil Code contravenes the Constitution, emphasized that sexual orientation is derived from one’s individual character traits, and is therefore difficult to change and cannot be considered an illness.
It also stressed that members of the LGBTQ community should not be isolated by society nor receive differential treatment and was thus generally consistent with the tolerant attitude reflected in society.
On the other hand, the legalization of same-sex marriage and related issues, such as inheritance, adoption and fostering rights and LGBTQ education, will require amendments to existing legislation and even changes to the titles of family members.
Consequently, one grand justice held a dissenting view and did not accept that two fathers or two mothers is no different from a “complete” family with one mother and one father.
Most members of the public, drawing upon common sense and reason, worry that family ethics, social order and the next generation’s education will be unable to withstand the shock of same-sex marriage.
The public has expressed its will through the referendums on same-sex issues, with the vast majority of voters asserting that marriage must be defined as between a woman and a man, while at the same time agreeing that a special law should be passed to protect the rights of same-sex couples to marry.
The referendum results also show that the public disapproves of the implementation of gender equality education in elementary and junior-high schools. Viewed from the perspective of the international environment, this expression of the democratic will shows that while Taiwanese society is conservative, it is also quite enlightened and tolerant.
Advocates of same-sex marriage are of course disappointed by the referendum results, but about 3 million Taiwanese voted in support of same-sex marriage. As such, it should not be viewed a total loss. Same-sex marriage is a progressive issue with far-reaching implications.
The Taiwanese saying “Eat from a bowl too quickly and it will break” aptly describes the current situation. Increased communication, patient persuasion and incremental progress will eventually win the tacit approval and tolerance of the public and allow society to feel at ease.
From the government’s perspective, now that the referendums have concluded, when dealing with the same-sex marriage issue, it must carefully listen to public opinion, avoid falling into the trap of the illusion of progress and cut down on the negative attacks.
If it does this, the road toward Taiwan becoming the first nation in Asia to legalize same-sex marriage would be an altogether smoother journey.
Translated by Chang Ho-ming and Edward Jones
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