Written by Mei-Nu Yu and Yiching Yang.
On 17 May 2019, Taiwan passed the same-sex marriage bill, becoming the first Asian country to legalise same-sex marriage. In doing this, it became the only country in the world to experience three different pathways in the fight for marriage equality: Our Grand Justices made the Interpretation in 2017, we held a referendum in 2018 and, finally, the Legislative Yuan passed the law in May.
Same-sex marriage over the past 60 years
Homosexuals have long been a part of Taiwanese society but have been excluded from family life through discrimination and ignorance. While this situation is unfair and in violation of human rights, there have been attempts to change it. In 1958 a lesbian couple inquired with the notary public office of court about the possibility of having a civil marriage. In 1986, a gay couple requested Taipei District Court for a civil marriage and filed a petition to the Legislative Yuan. In 2000, they unsuccessfully requested the Grand Justices of the Judicial Yuan for interpretation.
A bill on “the Human Rights Basic Law”, passed by the Presidential Human Rights Advisory Committee in 2003, clearly stated the protection of the rights for same-sex marriage, forming a family and adopting children. However, this bill was never passed in the Executive Yuan and thus never introduced into Legislative Yuan.
It has been 13 years since the first same-sex marriage bill was proposed by Legislator Hsiao Bi-khim in 2006. However, it was not passed in the Procedure Committee at Legislative Yuan. In 2012, Legislator Mei-Nu Yu proposed a draft to amend the Civil Code to legalize same-sex marriage. Legislator Yu proposed the bill again after she kept her position in the 2016 parliamentary election. In the past seven years, there have been eight draft bills proposed by legislators of different parties.
Legislator Yu was a human rights lawyer, advocating women’s rights for over 30 years. She argued that LGBT rights were underprivileged in Taiwan society just like women’s rights were 30 years ago and thought it time to organise actions to improve this. Discussing the matter with LGBT NGOs and legal experts over several months, legislator Yu’s office concluded that amending the Civil Code would be the best and most efficient way to give equal rights to same-sex couples and their families.
Unfortunately, the proposed bill on same-sex marriage generated strong opposition among certain religious groups. They spread rumours about marriage equality via the internet and communication apps. As a result, legislator Yu’s office received thousands of phone calls claiming that the passage of the bill would incite behaviours such as incest and polygamy. These views seriously distorted and misrepresented the content of the bills and the legislative procedure, and thus the legislation was hindered.
Grand Justices Rule that Same-sex Marriage is a Constitutional Right
During the years of equal-marriage advocacy and legislative deliberation, there was a debate as to whether same-sex marriage is a basic human right in Constitution or it is only an institution made by law. Some opponents argue marriage is not a human right so that it is unnecessary to protect same-sex marriage in law while others propose it is a Constitutional issue.
The Constitutional Court of Taiwan announced Constitutional Interpretation no.748 on 24 May 2017, ruling that it is against the constitution to bar same-sex individuals from getting married. It also set a deadline of two years to legalize marriage equality. If relevant laws were not amended or enacted within the said two years, two persons of the same sex would be allowed to have their marriage registration in accordance with the Marriage Chapter of Civil Code.
However, the Interpretation did not directly bring about a happy ending. The Grand Justices did not indicate the legislative formality to legalise same-sex marriage in the Interpretation. It was therefore difficult for the legislators and Executive Yuan to decide whether to amend Civil Code or to make a special law only for same-sex marriage.
The Devastating Referendum and the Special Law
The opposing religious groups proposed a referendum to determine the legislative formality for same-sex marriage. On 24 November 2018, a multi-question referendum was held as part of Taiwan’s local elections. As a result, about 6.4 million people choose a special law rather than Civil Code as the means to formalise same-sex marriage. Another question in the referendum revealed that about 7.6 million people think the Civil Code should not be amended to include same-sex marriage.
Unfortunately, anti-LGBT rumours, prejudice and bias tore Taiwan society apart during the referendum. We heard that some people attempted suicide because of the rumours and some, tragically, succeeded in doing so. The referendum made the same-sex marriage movement and the progressive groups supporting it very depressed.
On 21 February 2019, the Executive Yuan proposed a special law for same-sex marriage, The Enforcement Act of the Judicial Yuan Interpretation No. 748. The bill stipulated that same-sex couples can get married and set up home together and gave them the right of stepparent adoption.
Then the ball was again pushed back to Legislative Yuan for the Legislators to decide whether or not to pass the same-sex marriage bill before the deadline set by the Grand Justices. At the same time, some religious groups also influenced Legislators to propose a discriminatory anti-LGBT bill.
As the world paid attention to Taiwan, the ruling Democratic Progressive Party (DPP), in the face of staunch local opposition, finally decided to shoulder the difficult responsibility of standing for human rights. President Tsai had embraced marriage equality during her presidential campaign in 2015 and delivered on her word, leading her administration to realize her promises and the Constitutional mandate.
Finally, the bill passed with the support from different parties to cast votes for marriage equality. The Executive Yuan and the DPP, who have the majority of the parliament, proposed bills and successfully legalized same-sex marriage in the form of special laws. The opposition parties, including five legislators from the New Power Party and some LGBT-friendly KMT legislators, voted for same-sex marriage.
A New Page of Gender Equality
We passed the law on 17 May – the International Day Against Homophobia. Taiwan has proven that we are a country supporting diversity and gender equality, and we are now the first country in Asia to legalise same-sex marriage. It would be impossible to achieve this result without the volunteers who stood up together to rally and communicate with citizens in the markets, on campuses and in every corner of Taiwan. Although we had to overcome several setbacks in order to achieve the ultimate goal of equality, we were not alone. Because of the efforts of so many people, we have written a new page in Taiwan’s history of gender equality and human rights.
The passing of this bill is not an end to the marriage equality movement or even advocacy for LGBT rights. Unfortunately, we cannot fully protect the rights of all LGBT families and transnational same-sex couples this time. Same-sex spouses are still unable to adopt non-blood children. Foreign partners may be ineligible for same-sex marriages in Taiwan if the laws of the foreign national’s home country do not permit same-sex marriage.
Besides, even as the laws are now enacted, LGBT people may still face discrimination and prejudice in their daily lives, including in schools and workplaces. Maybe society needs more time, and we have to continue to work together on the basis of the new marriage bill. Considering the experience of other countries, we know that after the legalisation of same-sex marriage, there may still be some doubts or challenges. We still need to continue to fight for more equality. We will face these challenges together with love and tolerance.
Legislator Mei-Nu Yu is a Taiwanese politician. She holds a Master degree from National Taiwan University and is a PhD candidate at Johann Wolfgang Goethe University, Germany. Yu has served as part of the Legislative Yuan (Taiwan’s parliament) since 2012. As a well-known human rights lawyer, Yu was the first female President of Taipei Bar Association. She was one of the founding members of Awakening Foundation, the first organization of women’s movement in Taiwan and founding president of the National Alliance of Taiwan Women Association. Alongside her advocacy for women’s rights since the 1980s, Legislator Yu has been a long and active supporter of marriage equality in Taiwan.
Yiching Yang is the deputy director of Legislator Yu’s office and responsible for the legislation of same-sex marriage. She holds a Master degree in building and planning from National Taiwan University.
After a long battle, same sex marriage was finally legalised in Taiwan on 17 May 2019, and parliament was asked to pass the change within the following week. In this special issue, Taiwan Insight shares the experiences of those who witnessed this historical moment and looks at some of the driving forces that led to this momentous breakthrough.