A long-awaited milestone for Asia

What does Taiwan’s ruling on same-sex marriage mean for the region?

Yen-hsin Alice Cheng

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

28 June 2017

Taiwan’s landmark ruling on same-sex marriage is a milestone for the region. But it also shows how Confucian culture might present a hurdle for gay rights activists in other Asian nations, Yen-hsin Alice Cheng writes.

As one of Asia’s most liberal democracies, the fight for civil rights for the gay community in Taiwan has nevertheless gone through a long and winding path. As early as 1986, gay rights activist Chi Chia-wei attempted to marry his partner but was turned down by the Taipei district court. He was later imprisoned for five months after handing out a petition to request legal recognition of same-sex marriage.

After decades of collective effort, however, the constitutional court of Taiwan ruled on 24 May that current marriage laws violate the principles of human dignity and equality. The court further ordered the legislature to amend relevant civil codes to grant marriage rights to homosexual couples within two years. This landmark case has attracted immense international media attention and brings Taiwan closer to becoming the first country in Asia to legalise same-sex marriage.

Although the ruling has been greeted with much enthusiasm, opposition from conservative Christians and advocates of traditional family values has only grown stronger. Such groups are now trying to pressure legislators not to alter the civil code as ordered by the constitutional court. Some even argue that such a crucial social issue should not be determined by a few judges, and instead should be put to a referendum.

Meanwhile, gay-rights activists worry that direct amendment of the civil code might be no easy task. It is feared that a separate law specifically designed for same-sex marriages might instead be enacted – something deemed by many as discriminatory against homosexual couples.

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Over the past decade, various public opinion polls and social surveys have consistently shown that more than half of the Taiwanese population support same-sex marriage, while opponents make up about a third to 45 per cent of poll respondents. Even though the conservative Christian community appears to be the main opposing force, they nevertheless only make up 5 per cent of the total population in Taiwan. What lies behind the fervent anger towards the court ruling is not just biblical teaching, but also a traditional Confucian mentality in which safeguarding the family lineage is seen as paramount.

In the eyes of many traditionalists, homosexual couples are incapable of procreation and will “destroy family values”. On the contrary, same-sex couples would be able to have children once they are allowed to marry since assisted reproductive technologies (ART) are currently only available to married couples in Taiwan. However, opponents are also reluctant to let same-sex couples use ART or adopt children since they view same-sex couples as lesser candidates for parents who might “negatively influence the development of children.”

Such arguments show how human rights are dwarfed in the face of culture and prejudice. The court decision is a long-awaited act of justice to the homosexual community and an important page in the history of human rights in Taiwan.

Since the Netherlands became the world’s first country to legalise same-sex marriage in 2000, another 20 countries have followed suit. While the scope of these 21 countries spans across five continents, Asia is absent from this legal landscape. Hence, the constitutional court decision of Taiwan has tremendous policy implications for its Asian neighbours, where same-sex marriage has provoked public discussion in South Korea, Japan, Vietnam, and Thailand in recent years. Will such a legal breakthrough in Taiwan create ripple effects in the region?

In Asia, Japan is the only other country to provide civil partnership registration in a number of cities at the sub-national level. However, marriage equality bills have never been brought to the parliament, and Japanese society as a whole lacks the momentum needed for further legal progress.

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Vietnam and Thailand both have societies which are relatively more tolerant of homosexuality. In both countries, there have been legal attempts to implement civil partnership registration and to promote marriage equality, although recent efforts have been stalled by legislative obstacles and political instability.

In the rest of Asia, including South Korea, China, the Philippines, Malaysia, India, and Singapore, same-sex couples face various barriers to civil rights and higher tolerance due to political, religious, and cultural reasons. Homosexual behaviours are even considered a crime in some of these countries. For these societies, the prospect of legalising gay marriages seems unlikely in the foreseeable future.

Research into the causes of social change in the Western world has shown that economic development, democracy, and religious freedom are conducive to greater tolerance and civil liberties for homosexuals. Cohort replacement is often key to this attitudinal shift – younger generations tend to be more accepting of sexual minorities than their older counterparts.

Although similar findings have been reported for Taiwan, there is one unique trait to be considered in parts of Asia – Confucianism. As indicated by a study comparing 47 countries, the strong desire to keep the family intact is a critical factor in understanding why Confucian countries tend to express lower acceptance of homosexuality when compared with other similarly developed countries.

As the latest legal episode in Taiwan shows, even when the socioeconomic environment may be ready for the legal recognition of same-sex unions, opposition to same-sex marriage is likely to remain strong in countries deep-rooted in Confucian heritage.

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