Today marks the one-year anniversary since same-sex marriage was legalized in Taiwan. Many people vividly recall the jubilant images splashed across global news outlets and social media pages when, on this day last year, the Legislative Yuan approved the legalization bill.
Countless LGBTI activists, civil society groups and allies worked tirelessly for many years to change hearts and minds, hold the government accountable, democratize intimacy, and legally transform sexual citizenship in Taiwan.
More than 3,500 same-sex couples have married since registration was opened on May 24 last year. What democracy and the rule of law has enabled Taiwanese society to achieve is truly impressive; equal citizenship for sexual minorities has always been at the center of this movement.
At the political level, apart from the support of President Tsai Ing-wen (蔡英文) — who was re-elected for a second term in January — and outspoken lawmakers, one of the unsung heroes of this legislation is the indefatigable Premier Su Tseng-chang (蘇貞昌).
As a democracy activist during the authoritarian period, Su was a founding member of the Democratic Progressive Party, Taiwan’s first opposition party formed in 1986 when the country was still under martial law.
He assumed his role as head of the Executive Yuan in January last year, a mere four months before amassing enough votes to pass the Act for Implementation of Judicial Yuan Interpretation No. 748 (司法院釋字第748號解釋施行法), the legal name of Taiwan’s special law on same-sex marriage.
One month after taking office Su released a widely circulated video message explaining the government’s draft bill for same sex marriage — a compromise after two anti-gay marriage referendums passed in November 2018 — and encouraged Taiwanese to shed prejudice and support it.
The Civil Code would not be changed, but the right to “marry” for same-sex couples would be upheld in respect of the Constitutional Court’s ruling in May 2017. Very few septuagenarian politicians in Taiwan have courageously spoken out in favor of LGBTI equality as Su has.
His public support for our community in Taiwan goes back to 2012 when Su signed a petition regarding the bill of marriage equality launched by the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR).
Despite its historic achievement, the Taiwanese same-sex marriage law passed last year does not enshrine true marriage equality. One of the pressing issues remaining is the marriage rights of transnational same-sex partners; marriage remains elusive for many such couples in Taiwan.
Same-sex couples in which one partner is Taiwanese and the other is a foreign national of a country that does not yet recognize same-sex marriage are not permitted to marry in Taiwan. Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法) is interpreted as prohibiting such marriages.
Given that the special law on same sex marriage does not include complementary regulations that would avoid such restriction of rights, the government must either amend the relevant law or adopt appropriate interpretation and administrative measures to rectify this unequal treatment.
Moreover, Article 20 of the same-sex marriage act only allows married same-sex couples to adopt the biological children of their spouse. While this does recognize and meet the needs of many same-sex families with biological children, the restriction constitutes discrimination based on sexual orientation and fails to guarantee the full rights of same-sex couples in matters of adoption. Heterosexual couples, of course, do not face similar restrictions.
Naysayers have been circulating posts on social media claiming “national security concerns” over legalizing all forms of same-sex transnational marriages. While the threat the Chinese Communist Party poses to Taiwan is very real and should be vigilantly guarded against, scapegoating the same-sex partners of Taiwanese who hold People’s Republic of China citizenship is unfair and indefensible.
Every year thousands of heterosexual Taiwanese marry partners from China.
As Sara L. Friedman says in her book Exceptional States: Chinese Immigrants and Taiwanese Sovereignty, ever since the two countries resumed relations in 1987 “regulating cross-Strait marriages has become an important means for the Taiwanese government to enact policies and engage in bureaucratic practices that assert national sovereignty.”
Yet despite what Friedman calls “growing anxieties about the changing face of the country’s population and the impact of migration from China” and the heightened scrutiny of “sham marriages” (假結婚) between Taiwanese men and Chinese women obviously this has not led to an outright ban on them.
Maintaining a legal prohibition on a verifiably smaller number of Taiwanese-Chinese or other transnational same-sex couples makes no logical sense.
Of all the countries that have passed same-sex marriage laws, Taiwan is the only one that requires both parties to come from a country where same-sex marriage is legal; if the nation truly believes in equality this must be changed.
In a democracy the role of civil society is to monitor the government and engage in constructive criticism, not to obsequiously sugarcoat or tolerate discriminatory laws or policies.
Taiwan plays an important role as a beacon of freedom and democracy amid growing authoritarianism in Asia, yet many challenges remain for full equality of sexual minorities. For example, the policy — based on administrative regulations and not a specific law — must be amended so that trans people can change their gender marker without the unfair requirement of surgery.
LGBTI-inclusive education made possible by the 2004 enactment of the Gender Equity Education Act (性別平等教育法) must also continue to be defended from its vociferous detractors. The imperfect nature of the special law for same-sex marriage registration still needs to be rectified, either wholesale or incrementally.
A multifaceted strategy to address these legal deficiencies has been initiated by the team at TAPCPR. On May 1, we released a video campaign featuring the story of a Taiwanese and Japanese same-sex couple and their struggle, in the absence of legal protections, for the freedom to marry. We aim to build a coalition of domestic and international support to pressure the government to act.
TAPCPR lawyers have also filed multiple new cases to litigate these matters, starting with transnational marriage rights. Barring any delays, the first of these hearings should begin next month in the Taipei High Administrative Court.
Taiwan has come a long way and should be commended for its progress, but it can and must do better. Thus, the struggle for truly equal citizenship must continue.
Victoria Hsu is the cofounder and executive director of the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) and the lead attorney in the case that led to the May 2017 ruling by Taiwan’s Constitutional Court in favor of same-sex marriage. Adam K. Dedman is a doctoral candidate at the University of Melbourne researching LGBT rights in Taiwan and a 2020 Taiwan Fellow.
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