The Same-Sex Marriage Battle in Its Historical Context

Although the proposed legislation is unlikely to pass anytime soon, activists and legislators have made some progress over the years
M. Bob Kao
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Taiwan is often seen as the most progressive country in East Asia in terms of LGBTQ rights. Same-sex sexual behavior is legal, discrimination based on sexual orientation and gender identity is banned in the workplace and in educational institutions, and changing one’s legal gender is permitted, though the requirements for doing so are quite onerous. Despite all this, the fundamental right to marriage for LGBTQ individuals has yet to be attained.

The Marriage Equality Bill currently under consideration at the Legislative Yuan would make the sections of the Civil Code related to marriage, adoption, parenthood, and inheritance gender-neutral by changing terms such as “husband and wife” to “couple” and “father and mother” to “parents.” Yu Mei-nu (尤美女), one of the opposition Democratic Progressive Party (DPP) legislators who is spearheading the efforts, placed it on the agenda of the Judiciary Committee of the Legislative Yuan earlier this week.

The hearing was predictable, with Chinese Nationalist Party (KMT) legislators rehashing tired, nonsensical arguments, making deliberate misrepresentations, and displaying willful ignorance. Committee member Lee Guei-min (李貴敏), a California lawyer, cited the U.N. Human Rights Committee decision Ms. Juliet Joslin et al. v. New Zealand to show that international human rights jurisprudence does not mandate same-sex marriage. She failed, however, to discuss subsequent international development or consider the nature of the treaty-making process that forces compromises in order to garner signatures. Had she been speaking in front of a judge, she would most likely have faced sanctions for this stunt.

Later, Lin Hung-chih (林鴻志) claimed that the 1789 United States Constitution allowed three out of every five black slaves to vote, a fundamental misunderstanding of the Three-Fifths Compromise, which concerned legislative representation and taxation, not individual voting rights.

Given the animus exhibited by the KMT and its control of the legislature and the executive, same-sex marriage will not be legalized in Taiwan anytime soon. As the legislation lingers, it is important, as DPP legislator Cheng Li-chiun (鄭麗君) asserted at the hearing, to validate and honor the work done by activists that has led to the state of marriage equality today with the bill having already advanced further than any previous legislative efforts. This examination of the progress and setbacks in the fight for marriage equality puts the current efforts in context and will hopefully help younger or newer advocates plan and strategize for future actions.

 

Executive Pathway

A noteworthy victory for same-sex marriage occurred last year when the Ministry of the Interior (MOI) upheld the marriage between two transgender women, Jiyi Ng (吳芷儀) and Abbygail Wu (吳伊婷). Both were born as male and underwent transition surgery in July 2012. However, only Ms. Wu legally changed her gender before they registered their union in October 2012, so it was a lawful marriage between a man and a woman in the eyes of the law. Subsequently, Ms. Ng also changed her gender to female, and in June 2013 the MOI revoked their marriage. The Ministry, however, reversed its decision in August 2013 when it decided that the couple’s marriage would remain valid since they met the legal requirement at the time they entered into the marriage. It cited an opinion by the Ministry of Justice (MOJ) in 1994 stating that a change in gender during a valid marriage does not affect the person’s relationship with the spouse and children.

This case occurred several months after the Hong Kong Court of Final Appeal ruled in Ms W v Registrar of Marriages that a transgender woman and a man can marry. Although it was not a judicial decision, the case in Taiwan was much more significant in expanding the meaning of marriage, as it upheld the marriage of two people who were legally women at the time of the decision. By contrast, the Hong Kong case reiterated that marriage is between a man and a woman but merely expanded the definition of women to include transgender women. Nonetheless, 2013 was a significant year for transgender marriage for both Taiwan and Hong Kong

 

Judicial Pathway

In December 2012, instead of ruling on whether Nelson Chen Ching-hsueh (陳敬學) and Kao Chih-Wei (高治瑋) can marry as two men, the Taipei High Administrative Court, in a case brought by the couple in 2011 challenging the denial by the Household Registration Office, decided to seek a constitutional interpretation by the Justices of the Constitutional Court. Though it was disappointing that the judge did not rule in their favor, this was an opportunity for the highest court in Taiwan, the only court that can interpret the constitution under the country’s civil law system, to decide on the issue. However, the Justices never had a chance to deliberate, as the couple sought a dismissal in response to death threats. Though the publicity of the case raised the profile of the issue of same-sex marriage, it unfortunately also led to threats to the personal safety of the two men involved.

This was not the first time lawsuits were filed in response to denials to register same-sex marriages by the Household Registration Office. Another couple, long-time activist Chi Chia-Wei (祁家威) and his partner has been doing so periodically since 1986. They also filed a case with the Taipei High Administrative Court, the same court that punted the issue, after Mr. Chen and Mr. Kao, but this time the court ruled against them in March 2014 by stating that the Civil Code only permits marriage for heterosexual couples.

 

Legislative Pathway

In November 2003, Taiwan had the opportunity to be one of the first countries in the world to legalize same-sex unions when the Executive Yuan under President Chen Shui-bian (陳水扁) proposed the Human Rights Basic Law. Among the provisions were the right for gay and lesbian couples to form same-sex unions and the right to adopt. This draft legislation was first proposed by the MOJ in 2001 soon after Chen began his presidency and then revised by the human rights advisory panel of the Office of the President, of which Legislator Yu, one of the initiators of a version of the current bill, was a member.

The bill was never submitted to the legislature due to opposition from the KMT-dominated Legislative Yuan and President Chen’s own Executive Yuan. Contrary to what had been widely reported, the finalized version of the bill that would have been sent to the legislature did not legalize same-sex marriage; rather, the vague language allowed people of the same sex to form families and adopt, conspicuously eschewing the term marriage, which a MOJ official earlier explained was reserved for heterosexual couples.

Though many provisions in the Human Rights Basic Law were consistent with the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, which President Ma Ying-jeou (馬英九) successfully pushed through the Legislative Yuan once he came into office, in the realm of human rights he has put the issue of marriage equality on the backburner. He has instead focused on, for the most part, reforms in the criminal justice system. That he advocated for Taiwan to adhere to these covenants despite lacking international legal status to officially sign them shows tenacity, but his determination to not support marriage equality has been equally stubborn.

There was another attempt at creating marriage equality through the legislative process when DPP Legislator Hsiao Bi-khim (蕭美琴), former adviser to President Chen, introduced a same-sex marriage bill in 2006. This was quickly shot down by a group of 21 legislators, including several from the DPP and coalition partner Taiwan Solidarity Union. Interestingly enough, KMT legislator Lu Hsueh-Chang (呂學樟), a People First Party member at the time, was a co-signer of the bill, a sharp contrast to his current position on the issue, demonstrated by his warning at the hearing that legalizing same-sex marriage would be tantamount to allowing bestiality. Unlike the current bill, Hsiao’s proposal would have enacted a separate law governing same-sex marriages and adoption instead of making the existing Civil Code gender-neutral.

 

Going Forward

Though the current legislation will likely not pass, it is important to note and remember the progress and setbacks that have characterized the battle for the legalization of same-sex marriage in Taiwan. In order to achieve marriage equality, advocates in Taiwan must continue to pursue multiple legal strategies to exert pressure on various branches of the government and not place undue hope on the legislative process.

 

M. Bob Kao is a PhD Researcher in law at Queen Mary University of London and a former non-profit attorney in California. He received his JD from the University of California, Berkeley and LLM from University College London. He blogs at Taiwan Law Blog.

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