An incomplete equality

Taiwan moves to legalise same-sex marriage

Mei-Hua Chen

Law, Social policy, Arts, culture & society | Asia, East Asia

20 June 2017

Taiwan is set to legalise same-sex marriage, yet it is too early for homosexual couples to celebrate a full realisation of equality, Mei-Hua Chen writes.

On 24 May, Taiwan’s Constitutional Court issued a landmark decision paving the way for same-sex marriage in the country. The Court struck down the provision of the Marriage Chapter of the Civil Code stipulating that the ‘marriage agreement’ was only possible between ‘a male and a female’ with an overwhelming majority of twelve to two.

The Court argued that marriage is a fundamental right protected by Article 22 (freedom of marriage) of Taiwan’s Constitution. Moreover, the equal protection guaranteed by Article 7 demands that the state provides equal protection to people of different genders and sexual orientations given that “sexual orientation is an immutable characteristic that is resistant to change”. The Civil Code was therefore deemed unconstitutional because it only protects heterosexual marriage. As far as protecting people’s rights to marriage equality is concerned, the Court gave the Legislative Yuan (Taiwan’s unicameral parliament) two years to amend the Civil Code, at which point same-sex couples will be able to directly register their marriages with local authorities.

The decision seems likely to make Taiwan the first Asian country to legalise same-sex marriage. Most importantly, it also signifies the destabilisation of gender dichotomies, heterosexual norms, and the idea of the ‘traditional Taiwanese family’. Anti-gay groups have responded by accusing the Court of expanding its judicial power by ‘fabricating’ or ‘inventing’ same-sex marriage. However, the decision in many ways simply reflects the changing gender relations, diverse non-conforming sexual practices, and increasingly varied configurations of family in Taiwan.

The traditional heterosexual marital family has been increasingly challenged over the past few decades. People in Taiwan are now more tolerant of divorce, single parenthood and late marriage; indeed, people who stay single for their whole lives are not unusual. Moreover, unlike many other Asian countries such as Singapore, Malaysia and India, Taiwan does not criminalise homosexual acts. The high visibility of vibrant gay and lesbian movements also make it possible for Taiwanese society to make sense of same-sex desires and intimacies.

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According to the Taiwan Social Change Survey, in 1991 only 11.4 per cent of respondents agreed that ‘homosexuals should have the right to get married’. However, by 2015, the share of people agreeing with this statement had grown to 54.2 per cent.

Nonetheless, the Court’s arguments for same-sex marriage were not entirely straightforward and left room for further interpretation. It could be that this was due to the Court’s desire to cool down the same-sex marriage debate in the country, rather than enrage the anti-gay-camp, which includes groups such as the ‘League for Defending Happy Families’. The anti-gay-camp is dominated by conservative Taiwanese Christians and the moral right of Taiwan.

It is worth noting that while Christians, including both Protestants and Catholics, constitute less than 6 per cent of the whole population of Taiwan, they are the most vocal and organised group opposing the legalisation of same-sex marriage. With abundant resources and well-developed religious networks, they have been able to organise numerous protests and circulate degrading material against gays and lesbians. In some of this material same-sex desire, for instance, has been characterised as the bedrock of AIDS and promiscuity. Some groups have even claimed that ‘infertile’ homosexuals will eventually bury the nation.

The anti-gay-camp rarely provide evidence-based arguments, yet they have been successful in mobilising homophobia among conservatives. Until now they have managed to ensure that the majority of legislators, from both the ruling and opposition parties, have either opposed same-sex marriage or declined to publically support it.

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Because of this failure of both the Court and politicians to embrace marriage equality whole-heartedly, this ground-breaking decision still makes the legalisation of same-sex marriage an uncertain business. Firstly, the Court wrote that the Legislative Yuan has the authority to ‘determine the formality for achieving the equal protection of the freedom of marriage’. It, therefore, gives the anti-gay-camp and reluctant legislators an opportunity to endorse ‘special legislation’ regarding same-sex relationships. The purpose of ‘special legislation’ is to differentiate same-sex marriage from so-called ‘normal’ marriage composed of ‘a male and a female’.

Some legislators of the ruling Democratic Progressive Party (DPP) and the Ministry of Justice have drafted different versions of ‘special legislation’, for instance, a Civil Union Act or the addition of a separate chapter to the Civil Code, and are planning to submit their bills to the Legislative Yuan this September. As DPP controls 60 per cent of the seats in the Legislative Yuan, it is very likely that they could pass whatever bill they put forward. This means that the attitudes of President Tsai Ing-wen and the DPP are worth watching closely.

Secondly, aside from arguing for marriage equality, the Court also defined marriage as ‘a permanent union of an intimate and exclusive nature for the committed purpose of managing a life together’. In defining marriage like this, the Court aligned itself with the conservative right who defend ‘family values’. The Court seemed to suggest that same-sex couples who love each other and are committed to an exclusive relationship should deserve equal protection to heterosexual couples. Nonetheless, the Court kept silent regarding the reproductive rights of same-sex couples and failed to mention whether same-sex couples should enjoy equal rights to adopt children or use assisted reproductive technology.

Taiwan may have moved to recognise same-sex couples’ equal rights to marriage. Yet by failing to equip same-sex couples with the instruments to materialise their rights to form an equal and proper family, the country still has some ways to go on its march towards equality.

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