A historic court ruling last week did more than make Taiwan the first place in Asia to let same-sex couples wed: It also widened the political gap with China.
The decision by the Council of Grand Justices on Wednesday to legalize same-sex marriage in two years — if lawmakers do not do so first — underscored the nation’s differences with one-party China; the Chinese Communist Party (CCP) controls all branches of government and faces little public pressure to allow same-sex marriage.
“If we have the same culture and belong to the same race — what caused this difference?” said Li Yinhe (李銀河), one of China’s leading authorities on sex and family issues and a long-time gay rights advocate. “It is the system. This is a problem stemming from the system.”
The ruling, which President Tsai Ing-wen (蔡英文) quickly vowed to implement, undermines Chinese President Xi Jinping’s (習近平) appeals to shared culture when he makes his case for peaceful unification.
While the two nations share a common language and other customs, they are drifting further apart as Taiwan deepens its embrace of democracy and civil liberties.
Although China has been relatively tolerant of homosexuality over the centuries, citizens have few venues to pressure the government to change a law that says marriage “must be based upon the complete willingness of both man and woman.”
Protests are tightly restricted. Petitioning is controlled. Legislators, judges and media chiefs are appointed by the CCP and rarely challenge the leadership.
Meanwhile, efforts by gay marriage advocates to use China’s courts have been mixed.
A district court in Beijing ruled against using therapy to “correct” homosexuality in 2014, while one in Hunan Province last year rejected a same-sex couple’s attempt to wed in the nation’s first gay-marriage case.
Li, who has written more than 10 books about sexuality and lives with a transgender partner, has since 2002 submitted several proposals to China’s National People’s Congress to revise the marriage law.
She said the ruling undercuts arguments from opponents who say the change would be incompatible with Chinese culture and values.
“I believe it will encourage a minority rights movement in the mainland,” Li said of Taiwan’s decision. “But it’s a long way to go to catch up.”
Democratic Progressive Party Legislator Chung Chia-pin (鍾佳濱) said the ruling showed how Taiwan’s political system was better equipped to respect minority rights and diversity.
“We do not think people in China are seeking different values than people in Taiwan,” Chung said. “It is the result of a different political system and democratic practices over the years.”
Cross-strait relations have been strained since Tsai won a landslide election victory last year on a pledge to reduce the nation’s reliance on China.
She has refused to endorse the “one China” framework for negotiations, spoke on the telephone in December last year with then-US president-elect Donald Trump and hosted an unprecedented ministerial-level delegation from Japan.
Chinese Nationalist Party (KMT) Legislator Kung Wen-chi (孔文吉) disagreed that the marriage ruling would further widen the divide.
“We might get some respect, some applause from the international community, but that does not mean it will change cross-strait relations,” Kung said. “The bottom line of cross-strait relations is that both sides belong to one China, and that has not changed a bit.”
There is also the possibility that Taiwan’s political shift prompts change in China.
Jerome Cohen, a New York University School of Law professor who has been studying China’s legal system since the 1960s, said the “positive impact” of the gay marriage ruling “far outweighs” any damage to cross-strait relations.
“The more educated classes will appreciate not only the wisdom and fairness of the decision on the merits, but also the significance of the role of the judiciary in a genuine government-under-law country,” Cohen said. “Of course, the decision vividly highlights the sad contrast between Taiwan’s version of the rule of law, democracy and human rights and the mainland’s, which has become ever more repressive.”
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