Taiwanese Social and Political Complexities of Same-Sex Marriage Affordances and Obstacles: Continuing to Challenge Rights Inequalities

On 31 March 2022, 3 – 4.30 PM (Singapore Time), we hosted Professor Yu-Chieh Hsieh from the Chinese Culture University in Taipei, Taiwan to give a talk. You can watch Professor Hsieh’s lecture below (link here as well).

The following blog post written by Pavithra Menon is an account of Professor Hsieh’s talk.

In 2019 Taiwan emerged as the first and the only country in Asia to legalize same-sex marriage. This was undoubtedly a significant milestone and a dream come true for many Taiwanese same-sex couples, who never thought they would have the luxury of the choice and right to marry. However, this doesn’t imply that Taiwanese same-sex couples have obtained the same rights as their heterosexual counterparts. Many issues need to be urgently resolved to be true to the ideals of fair democracy and equality that Taiwan aspires for its citizens.

Source: Reuters

In this presentation, “Unsettled Rights: Fighting For Transnational Same-Sex Marriages in Taiwan,” Professor Yu-Chieh Hsieh opened a window into the reality of legalizing same-sex marriage rights in Taiwan while critically exploring the unresolved issues and challenges hindering the realization of the goal of marital equality, especially the ongoing campaign for legalizing transnational same-sex marriage. She also highlighted the progress made so far while chronologically mapping out some of the milestones that have led to the activation of this Act.  

Professor Hsieh began the presentation with an overview of what happened before the 2019 Same-Sex Marriage Act, explaining why and what paved the way for the legalization of same-sex marriage in Taiwan. The No. 748 ruling stated that the current civil code provisions on marriage and family did not allow same-sex couples to enter into a permanent union to start a life together like heterosexual couples. This was recognized as a violation of people’s Right to Equality and their Freedom of Marriage as guaranteed in Articles 7 and 22 of the Constitution. The No 748 Ruling stood for the urgent amendment or enactment of laws by the relevant authorities to be activated in a two-year span which ultimately led to the legitimacy of the Same-Sex Marriage Rule in Taiwan, May 2019, just right on time before the deadline. 

Professor Hsieh examined the fundamental question of how and why the No 748 ruling of 2017 came into place. She unfolded the contextual background of Taiwan across a span of the 1980s and 1990s whereby Taiwanese social attitudes were evolving with better understanding of same-sex relationships. Taiwanese gay movements were working to build upon earlier attempts to draft and submit the Same-Sex Marriage Reform Bills. 

Initially, the issue of same-sex relationships and marriage was brought into the Taiwanese public eye during the 1980s due to the AIDS pandemic. Negative perceptions of same-sex relationships dominated the psyche of Taiwanese society. In the 1990s there was some degree of positive change towards gay identities with the appearance of movies and novels that threw light on same-sex relationships, such as Farewell My Concubine and the Wedding Banquet. These works of art received international attention and opened the eyes of the Taiwanese public to gay-related issues; attitudes towards non-heterosexuals became more balanced rather than overly negative.

Source: IMDB
Source: IMDB

The lifting of Martial Law in 1987 also fueled attention towards social issues in the 1990s. Various social reform movements that emerged at the time, such as the Women’s Movement and Fighting for Equal Rights of Minorities, helped bring about a progressive attitude, especially toward minority rights in the social climate of Taiwan. Among the social reform movements, Professor Hsieh noted that the Gay Movements were closely related to the development of the Women’s Rights Movement as the latter challenged the existing, age-old gender roles and, in turn, attitudes toward sexuality in Taiwanese society.

Professor Hsieh went on to look at the 1990s when Taiwan saw a rise in the national and local emergence of gay organizations, bookshops, cafes, etc., showing how the Taiwanese public had expanded their understanding and curiosity towards same-sex relationships. However, Professor Hsieh pointed out that progress towards improving the socio-economic resources and legal rights for same-sex couples as equal citizens was still weak. 

As Professor Hsieh noted, a turning point for the Taiwanese Gay movement was in 2000 when there was a refocus on fighting for citizenship. The year 2000 witnessed the civic turn of events with the Democratic Progressive Party (DPP) coming into power for the first time, ending more than half a century of Kuomintang (KMT) rule in Taiwan. The DPP government highlighted the importance of human rights as their primary agenda, lending support to the Gay Movements to gain strength and momentum for their fight for civil rights in Taiwan. 

Proposing and litigating reform bills for same-sex marriage has been a vital strategy to strive for Gay citizenship in Taiwan since 2000. Professor Hsieh took us through the three stages of drafting the 1st and 2nd Same-Sex Reform Bills in Taiwan, which took place in 2006, 2013, and 2016. In 2006 The DPP lawmaker Hsiao Bi-Kim proposed the 1st reform bill to legalize marriage for same-sex couples. Unfortunately, due to the opposition from the KMT lawmakers, the Bill failed to make it to the legislative agenda. The drafting and campaigning for the second reform bill began with the establishment of the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), an LGBTQ NGO, in 2009. In 2012 the TAPCPR recruited lawyers to join them in advocating multiple strategies in relation to same-sex marriage, civil partnerships, and multiple person families with an aim to liberalize the existing regulations of marriage in Taiwan. In 2012 the TAPCPR proposed 3 reform bills to challenge the existing institution of marriage and family in Taiwan.

In 2013, with sufficient endorsement from lawmakers, one of the TAPCPR reform bills (the 2nd reform bill) demanded the legalization of same-sex marriage in Taiwan and was ready for its first reading in the legislature. However, the opposing conservatives came together against this, and the debates against the bills intensified. In September 2013 Alliance of Taiwanese Religious Groups for Caring Family was formed. Through this, the Church leaders, both from Protestant and Catholic denominations, for the first time, joined hands to present a united front against the legalization of same-sex marriage. In November 2013, a large rally of around 300,000 participants organized to defend the traditional institution of marriage, defined as a union between a man and a woman. This event played a crucial role in stopping the 2nd reform bill as many people supported this movement. Due to the social controversies surrounding this, the government officials and superiors hesitated to push the Bill forwards. In 2015 some local governments began to open household registrations to same-sex couples (but) with minimal rights. These actions paved the way for the third reform bill. The opposition from the religious conservatives persisted, with them staging yet another mass rally against the Same-Sex Reform Bill but this time with just 200,000 participants.

Professor Hsieh then brought to us, Chi Chia Wei’s case which became the foundation of the 2019 Same-Sex Marriage Act in Taiwan. At the end of 2016, the 3rd reform bill had its first reading, ready to go to the next legislative session. In February 2017, the Constitutional court reviewed the same-sex marriage dispute removing it from the legislative agenda. This constitutional shift resulted from the efforts of LGBTQ activists and one of the iconic figures of the Taiwanese gay movement, Chi Chia Wei. He petitioned the legislature for the legalization of same-sex marriage in 1986 to marry his male partner. He brought in a lawsuit in 2013 and petitioned for Constitutional Interpretation in 2015. Consequently, as a result of this consistent battle, on May 24th, 2017, the No.748 Ruling came about, which demanded the relevant authorities legalize same-sex marriage within two years 

Professor Hsieh explored how a Referendum made in 2018 was instrumental in legalizing same-sex marriage in 2019 prior to going to the civil court. Three out of 10 referendum questions were related to same-sex marriage, especially with regard to defining marriage with the inclusion of same-sex civil unions as well as protection of the rights of people involved in same-sex relationships. This consequently fueled the demand for a separate law to legalize same-sex marriage and defined what rights should be included and excluded. Professor Hsieh proceeded to explain three different versions of the Same-Sex Marriage Act drafted in 2019 by the DPP government and KMT after the referendum, all of which interestingly and intentionally excluded the term “Same-Sex” in their title to minimize social dispute. The title version produced by the DPP government was the Enforcement Act of Judicial Yuan Interpretation No 748, which recognized same-sex relationships as marriage. The Same-Sex Marriage Act based on Article 2 and Article 4 of the Act indicated that Taiwan recognizes same-sex relationships as marriage. Such a union would be recognized in writing with the signature of two witnesses and marriage registration in the Household Administration Bureau. The rights also grant limited adoption rights in Article 20 wherein one party in the same-sex union can adopt the genetic child of the other party. Same-sex couples cannot jointly adopt a child or even adopt his/her child.

Following this, Professor Hsieh turned her attention to the topic of Transnational Same-Sex Marriage Rights, which was marginalized by the government while drafting the Same-Sex Marriage Act to such an extent that an Article proposed during the 3rd reading was vetoed on the same day when the Same-Sex Marriage Act was passed. With this, Professor Hsieh focused her presentation on the topic of “Unsettled Rights” issues that need to be sorted with utmost urgency with regard to same-sex marriage rights, which include the right to be eligible for Assisted Reproduction Welfare and Medical Service, Right to Adoption, and Right to Transnational Same-Sex Marriage.

Elaborating Article 2 of Assisted Reproduction Act, Professor Hsieh highlighted that the Act only refers to a husband and wife receiving assisted reproduction where the wife’s uterus can carry the fetus and give birth, thus making same-sex couples and single people non-eligible for the same options at the moment in Taiwan. While the Taiwanese government has increased subsidies for heterosexual married couples, Same-Sex couples are not even eligible for assisted reproduction. The only option for Taiwanese Gay couples is to seek surrogacy abroad, as it is illegal in Taiwan. Lesbian couples are forced to seek Assisted Reproduction abroad. These options are also financially burdensome for same-sex couples, leaving them out of Taiwanese National Health Care and Reproduction Schemes. 

While critically analyzing the gaps in Adoption Rights, Professor Hsieh explained how Article 20 of the Same-Sex Marriage Act states that in same-sex couples, one party can adopt the genetic child of the other party. However, they cannot co adopt like heterosexual couples, nor can they adopt their partner’s foster child. Many NGOs, too, have been working to push the agenda of adoption rights for same-sex couples. A reform was proposed to amend Article 2 of the Same-Sex Marriage Act in the latter half of 2020 to allow comprehensive adoption for same-sex couples, however, the Bill is still on hold in the legislation. In 2021 same-sex couples tasted a bit of legal victory when a gay partner was given permission to adopt his partner’s foster child. 

Professor Hsieh illustrated the third issue in the list of ‘unsettled rights’, which is the issue of transnational same-sex marriage. In 2019 many NGOs and a few lawmakers campaigned for transnational same-sex marriage. However, the issue did not receive much media coverage, and eventually, it fizzled out. Even in the review of the draft of the Same-Sex Marriage Act by the DPP government, the issue of transnational same-sex marriage was left out. However, this was overlooked during the joyous moment of Taiwan emerging as the first Asian nation to legalize same-sex marriage. 

Professor Hsieh explored four scenarios that currently rule the fate of transnational same-sex couples in Taiwan under Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (FEAct). If a Taiwanese same-sex person has a partner from another country, depending on the country of the foreign same-sex partner, he/she/they will encounter a different situation under the Civil Law.

In the first scenario, couples can register their marriage in Taiwan under the Same-Sex Marriage Act if the foreign partner is from a country where same-sex marriage is legalized. In the second scenario, if the foreign same-sex partner comes from a country where same-sex marriage is not legalized (which includes almost all the Asian countries!), that marriage cannot be registered in Taiwan under the Same-Sex Marriage Act. In the third scenario, if the foreign same-sex partner comes from one of the selected 21 countries, including the Philippines, Vietnam, and Thailand, the couple will have to pass an overseas interview in the foreign partner’s country under the Overseas Interview Regulation before they can register their marriage in Taiwan under the Same-Sex Marriage Act. This regulation was primarily set up to prevent illegal migration and human trafficking between the 21 countries and Taiwan. However, this has also been criticized as a rather discriminatory regulation. The last scenario that Professor Hsieh explored concerns the Taiwanese-Chinese same-sex couples where the FEAct does not apply. Due to the history of conflicting relationships between Taiwan and China, Taiwanese-Chinese same-sex couples fall under the Act Governing Relations between People of the Taiwan area and Mainland Area (TMAct). This also includes an Airport Interview Regulation wherein Taiwanese-Chinese couples must marry in China first and pass an interview with the immigration authority as soon as they arrive at the Taiwan airport before allowing entry and permission to register their marriage in Taiwan. Without this, the Chinese partner will be made to repatriate to China. This has been considered discriminatory and requires an amendment to the Taiwanese Same-Sex Marriage Act.

Professor Hsieh introduced a fresh set of challenges that Taiwanese transnational same-sex couples face – Covid 19 and International Politics. Many same-sex couples couldn’t see each other for over two years as they were separated by the Covid crisis as well as the expiration of visas which could not be renewed due to Covid and office closures. Many Taiwanese same-sex transnational couples were also faced with uncertainties caused by conflict and political situations, both national and international including challenges faced by Taiwanese-Myanmarese couples and Taiwanese-Ukrainian couples. 

Professor Hsieh introduced us to the Taiwanese Alliance to Promote Civil Partnership Rights (TAPCPR), the leading advocacy group fighting for transnational Same-sex marriage. TAPCPR advocacy uses various strategies, such as lobbying the lawmakers of different political parties and government ministries to legalize transnational same-sex marriage. TAPCPR has used the media avidly with press conferences, letters to the editor, and social media posts to garner attention towards the issue while also liaising with international organizations like Amnesty International Taiwan. They also launched podcasts and music videos to portray the sentiments of the struggles faced by transnational same-sex couples in Taiwan to increase public awareness. 

Source: TAPCPR

As Professor Hsieh explicated, it has been almost three years since Taiwan monumentally legalized same-sex marriage. These three years have been particularly challenging for transnational same-sex couples, with Covid-19 challenging their relationships in several ways. However, while not as quick and effective as the Taiwanese transnational same-sex couples would have liked, some progress has been made with the lobbying efforts of TAPCPR with the lawmakers of the different political parties. There has been some progress made for transnational same-sex couples in Taiwan. First progress is the proposal of the five reform bills of the “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements.” However, no further progress has been made.

The Second progress that Professor Hsieh talked about is the Judicial Yuan proposing draft amendments to the “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements” in January 2021 with an aim to legalize transnational same-sex marriage. However though it was passed to the Executive Yuan, they have not yet submitted the draft to the legislature to advance the review process. 

Professor Hsieh proceeded to explain the third progress in the form of three victorious lawsuits set up by three transnational same-sex couples which included a Taiwanese-Malaysian couple, Taiwanese-Macanese couple, and Taiwanese-Singaporean couple. 

The first of these Lawsuits was the Chi Chia Wei case involving a Taiwanese-Malaysian same-sex couple. The court ruled that under the FEAct, the Law of a foreign state is applicable. However, if its application leads to a violation of public order or boni mores of the Republic of China, then the law of the foreign state won’t be applicable. With this amendment, the Taiwanese-Malaysian same-sex union was made possible, thus opening possibilities for other transnational same-sex couples in Taiwan. 

The second lawsuit victory was the T&L Case involving a Taiwanese-Macanese same-sex couple in May 2021. The court ruled on them registering their marriage in Taiwan under Article 6 of FEAct, which states that though the National Law of a party is applicable, should they indicate that another Law should govern the legal relation in question, that other Law will be applied to them. Under the Macau civil code, the Macanese same-sex marriage formation comes under the Principle of Habitual Residence. Therefore since the Macanese partner’s place of habitual residence is Taiwan, the Taiwanese Law should be applied to recognize their same-sex marriage under the Same-Sex Marriage Act. 

The most recent Taiwanese same-sex transnational lawsuit victory was the C&M case in November 2021 involving a Taiwanese-Singaporean Same-sex couples, which is the only lesbian lawsuit won till now. Article 6 of FEActs and the Law of domicile under the Singapore law was applied to their case. The couple share daughter a whose biological mother is the Taiwanese partner. Under Article 54, the formation and termination of a child’s adoption are regulated both for the adoptive parent and the adopted child by their respective national Law. However, very few unique cases for Taiwanese same-sex transnational couples have been successful.

Professor Hsieh reported on the reform bill of the Taiwan Mainland Act, which made a proposal for the FEActs to be applied to Taiwanese Chinese same-sex couples with regards to marriage affairs, to unify the issue of legalizing transnational same-sex couples. As of now, this has not been submitted to the legislature for further review. The latest progress is the Control Yuan’s Report. Three members of Taiwan’s top government watchdog body called it ‘Unconstitutional’ to bar transnational same-sex marriage in Taiwan. Through a press report, they called on the government to consider allowing transnational same-sex couples who have already registered their marriage in a third country to apply for residency in Taiwan.

Though commendable progress has been made, many obstacles delay the legalizing of same-sex transnational marriage in Taiwan. One of the first obstacles is the Executive Yuan’s Political will. The FEAct and TMAct have to go through the Executive Will before being submitted to the legislature. As there is no set timetable for the process, there is ambiguity about when the Executive Will might take action. As transnational same-sex marriage is a minority issue with limited political gain, the government’s lack of political will to resolve the issue is evident. The second obstacle that Professor Hsieh described is related geo-political tensions and contexts vis-a-vis Taiwanese –Chinese same-sex couples. Some Taiwanese have turned hostile to anyone from China, calling it a “breach of national security” to allow Taiwanese Chinese same-sex couples to register for marriage in Taiwan. This overlooks the fact that Taiwanese-Chinese heterosexual couples enjoy the right to be married to each other and leaves the Taiwanese–Chinese same-sex couples in a state of constant uncertainty in terms of legal rights and equalities.

In concluding remarks, Professor Hsieh enumerated how decades of democratic social development and the No. 748 ruling of 2017 played key roles in legalizing same-sex marriage in Taiwan in 2019. Even though same-sex marriage has been legalized in Taiwan, such couples do not enjoy the same rights as heterosexual couples. Professor Hsieh showed how the challenges faced by Taiwanese same-sex couples are rather intersectionally problematic and unique to each couple. Hence, well-thought-out amendments need to be made for a brighter future for Taiwanese same-sex couples. There is also the uncertainty of ‘time’ as to when issues related to assisted reproduction, adoption, and even transnational same-sex marriage will be resolved, as each of these issues are faced with unique challenges. 

Professor Hsieh concluded her talk with her thought-provoking remarks on how progress need to come from within the society at the grassroots level through NGOs and raising public awareness. As the Taiwanese government lacks the political will and motivation to prioritize resolving the issues related to minorities and same-sex relationships, litigation has and will continue to be one of the main strategies employed to fight for the civil rights of Taiwanese same-sex couples. As an important member of International Communities and being the first Asian nation to legalize same-sex marriage in 2019, Professor Hsieh recognizes Taiwan’s cardinal role as a flagbearer in sharing the value and fruits of human rights with other countries. And here, according to Professor Hsieh, the fight for the legalization of transnational same-sex marriage takes a new meaning of paramount significance. 

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