While the landmark Enforcement Act of Judicial Yuan Constitutional Interpretation No. 748 (司法院釋字第748號解釋施行法) — passed by the Legislative Yuan in May last year — made Taiwan the first Asian country to legalize same-sex marriage, a loophole in the act makes it the only country where a citizen’s right to marry a same-sex partner depends on their nationality.
“Of the 27 countries that have passed same-sex marriage, Taiwan is the only one that requires both parties to come from a country where same-sex marriage is legal,” Taiwan Alliance to Promote Civil Partnership Rights board member Victoria Hsu (許秀雯) said.
While the law was drafted to comply with the Council of Grand Justices’ Interpretation No. 748, which stipulates that the right to same-sex marriage is guaranteed by the Constitution, the loophole means that Taiwan’s marriage laws remain “unconstitutional,” she said.
Kris from Taichung and her partner, Yan, from Hong Kong are among the hundreds of transnational same-sex couples who cannot marry due to the loophole.
Since the two began a serious relationship last year, they have been flying to visit each other at least once every couple of months, despite the airfare being a constant financial burden, Kris said.
“Things like getting off work together and eating together ... which are completely normal to most people, are like a dream for many transnational same-sex couples like us,” she said.
A major legal obstacle to transnational same-sex marriage is the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法), which stipulates that whether a marriage can be established depends on the laws in the countries where the two people are from, attorney Daniel Chen (陳明彥) said.
The situation is further complicated by immigration regulations that require foreign spouses from 21 countries to be married abroad and pass an interview at a nearby Taiwan representative office before their marriage can be registered in Taiwan, he said.
The rule creates “yet another obstacle” for same-sex couples because the 21 countries, including Thailand and Vietnam, have not legalized same-sex marriage, he said.
Although the law does not apply to cross-strait marriages, a Chinese spouse must be married in China and pass an interview at an aiport in Taiwan to obtain marriage-based residency in Taiwan, he said.
“This does not work for same-sex couples at all, because they are prohibited from registering to marry in China,” he said.
The alliance has since October last year been working with several transnational same-sex couples to file administrative appeals against the government, he said.
If successful, the court cases would establish a precedent that could be applied to other transnational same-sex couples, or even push the legislature or Judicial Yuan to amend the law, he said.
If they lose, the alliance would consider seeking a constitutional interpretation to legalize all transnational same-sex marriages, he said.
Marriage Equality Coalition Taiwan deputy convener Teng Chu-yuan (鄧筑媛) said that legislators were well aware of the loophole when reviewing the same-sex marriage bill last year.
“When we were lobbying for same-sex marriage, problems like transnational marriage and joint adoption had already been noticed, but they were not dealt with because anti-LGBT camps kept stoking fear among the public by spreading false rumors,” she said.
Even today, conservative groups continue to claim that across-the-board legalization of transnational same-sex marriage would bring AIDS patients to Taiwan and cause bankruptcy for the National Health Insurance system, she said.
The Ministry of Health and Welfare has refuted the rumor, saying that AIDS is not limited to people of a certain gender or sexual orientation, and that HIV medication must be paid for out of pocket for two years before coverage is given.
“Several legislators told us that they personally agreed with us and considered the rumors to be ridiculous, but they found it difficult to persuade people to give up their fears,” Teng said.
While homophobia certainly still exists, many in the LGBT community have noticed a positive change following the implementation of the same-sex marriage law.
“The Jan. 11 elections proved many things, including that same-sex marriage will not make you lose public support,” Kris said.
In last month’s elections, 32 of the 41 legislators who had voted in favor of the same-sex marriage bill were re-elected, while the Stabilizing Force Party, founded by anti-LGBT groups, did not obtain any seats.
“When the government legally recognizes something, it makes people think that it is the right thing and part of a human’s rights,” she said.
During the legislative review of the same-sex marriage bill on May 17, even some of the legislators that supported LGBT rights the most did not express support for across-the-board transnational same-sex marriage, she said.
With the Democratic Progressive Party’s electoral victory, Kris said she believes that the time has come for the government to take the next step.
If the loophole can be closed, allowing her and Yan to marry, Kris said that she would like to travel abroad with Yan for the first time.
“Traveling abroad together is difficult for us, because it usually is just her flying from Hong Kong to visit me, or me flying from Taipei to see her,” Kris said. “Flying together would be like a dream to me.”
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