On Oct. 7, 1998, Matthew Shepard was brutally assaulted and left to die in the cold in Wyoming, mainly because he was gay. Fifteen years later, Matthew’s parents, Judy and Dennis, traveled all the way to Taipei to share with Taiwanese what happened to their son, their ideas about gender and sexuality equality and how to prevent hate crimes, in the hopes no other children will ever die or be hurt because of who they are.
I remember I was shocked and devastated when I first learned of the incident on the news a couple of days after I had moved to the US, when I was loving my feminist jurisprudence doctoral project so much. Later in a constitutional law class, I was even more shocked when I read the Bowers versus Hardwick (1986) case. The US Supreme Court actually sustained the constitutionality of the then Georgia sodomy law criminalizing oral and anal sex in private between consenting adults.
Though the law could apply both to heterosexual and homosexual actors, the majority opinion argued the US constitution does not confer “a fundamental right to engage in homosexual sodomy.”
I remembered I looked at a close gay friend of mine sitting next to me: The law says you are a criminal? He was relatively calm, but I became very angry.
In Taiwan, there are two common attitudes toward the law and legal system. One is that in the eyes of the law, people are equal regardless of gender, race, class, nationality, religious affiliation, etc. The law rules by applying equally to all. Through a systematic, institutional separation of its power, rule of law can work. It is just that Taiwan has not reached that point yet. The other view is that the law only serves a certain class of people, the dominant class, and the supposed neutrality of the law, its rhetoric of equality, only disguises and reinforces the existing power structures. I believed in the former when I chose law to be my major, but now I think there is some truth to each of the views, if I have not totally swung to the latter view.
Regardless of whether we like it, or how we understand it, the law does rule. It sends messages to people in society, at work, at school and in the family through the constitution, legislation and judicial cases, government practices and sometimes news coverage on legal cases. I was shocked twice 15 years ago because a gay man was murdered because of his sexual orientation and a law (though not used often) that criminalized distinct types of human sexual practices was declared constitutional.
A young man was killed because of who he was and the law even criminalized his being gay when he was alive (Later Bowers versus Hardwick was overruled in Lawrence versus Texas in 2003). A society lost three lives at the same time, two killers (two consecutive life sentences) and one victim. What went wrong?
The law sends out the wrong messages to society when it puts people into different categories, and favors one over the others or when it singles out some behaviors or practices and discriminates against them without legitimate reasons. When examining all areas of law and legal practices in Taiwan, one can easily conclude that lesbian, gay, bisexual and transgender (LGBT) people, unlike heterosexual citizens, cannot choose who they love or with whom they want to have a family; they cannot define themselves in their own terms and interact with others and the world on their own terms.
Taiwan does not have a sodomy law in its Criminal Code, the criminal system discriminates against LGBT people in a more subtle way through law enforcement practices or in the judicial process. The Civil Code does not explicitly stipulate only men and women can marry each other, but because of administrative orders and practices, not a single gay couple is registered married here.
Not all LGBT people will run into police in their lives, not all the LGBT people want to get married and the institution of marriage in Taiwan is far from equal, never mind perfect. However, laws and the legal system continue to send out messages: Some can and are encouraged to get married and some can not; some are systematically given more trouble than others. That communicates a message implying that LGBT people are socially inferior.
That implies that some of us are less deserving of legal protection, and that some of us are not deserving of it at all. It is not a question of public referendum as some religious groups and legislators have suggested. The fundamental right to the personal development (which includes gender self-determination) of any marginalized group of people cannot be voted out by majority. Imagine if today the majority of Taiwanese wanted to vote for a ban on all religions except Buddhism or Taoism.
No matter which viewpoint one holds about the law and the legal system, the legal system should at least pretend it applies equally to all, even if it does not truly embrace this ideal.
I listened to the Shepards’ talks in Taiwan twice. One time was at my university with my students, and one was at the American Institute in Taiwan to mostly gender-friendly non-governmental organization activists and teachers. I was deeply moved by their devotion to the LGBT community. Most people run away from pain, but Judy and Dennis embrace their pain and by speaking of their great loss and hopes to advance the acceptance of LGBT people in family and society in general, they demonstrate to us their extraordinary will, their endless love for their son and the power of words, of stories.
Taiwan is at a crossroads where we will decide if we want to be a country under the rule of law. Let us re-examine the current law and legal system that mistreats LGBT people and try to prevent all the potential tragic stories from happening and go back to the ideal of rule of law, the constitutional protection of basic rights, and maybe in the future, we can create more stories with happy endings.
Chen Yi-chien is an associate professor and director of the Graduate Institute for Gender Studies at Shih Hsin University.