Same-Sex Marriage as Protection of Minority Rights in Taiwan

Written by Ibtisam Ahmed.

Image credit: Large mural by Joe Caslin by William Murphy/Flickr, license: CC BY-SA 2.0

Pride season in 2019 has brought some extraordinary victories for the global LGBTQ+ community. Bhutan is on the cusp of decriminalising homosexuality after an overwhelming vote in the lower house repealed its anti-sodomy law (though the bill still needs to passed in the upper house and receive royal assent before it becomes official law). The judiciary in Botswana has overturned a colonial-era penal code clause that criminalised homosexuality, continuing the recent trend of queer liberation through decolonisation. Ecuador has become the latest South American country to recognise same-sex marriage.

All of this momentum started before the official commencement of Pride season, with the culmination of a landmark decision in Taiwan. Fittingly enough, on 17 May, the International Day Against Homophobia, Biphobia and Transphobia, a bill was passed to recognise same-sex marriage on the island, making it the first nation-level jurisdiction in Asia to recognise such unions.

The implementation of this historic decision followed some unique developments. Recent major victories – and, indeed, some losses – for LGBTQ+ rights have usually been determined by one branch of the government or the electorate alone. Similar to Botswana this year, decriminalisation successes in India and Trinidad & Tobago were spearheaded by the judiciary responding favourably to cases filed by LGBTQ+ activists and groups. Kenyan activists, while unsuccessful with their case this year, have followed a similar path.

It was the judiciary which legalised same-sex marriage in Ecuador and the USA as well. By contrast, Ireland and Australia held binding referenda which resulted in their legislatures passing same-sex marriage laws. Meanwhile, in the UK, the decision was solely led by the legislature without any influence by the electorate through a referendum or the judiciary – although it is yet to be implemented in Northern Ireland. Taiwan, interestingly enough, had a combination of almost all of these paths, and not all of them were successful.

Step One: Judicial Ruling

On 24 May 2017, the Constitutional Court ruled in favour of same-sex marriage. The ruling – Judicial Yuan Interpretation No. 748 – framed marriage as a constitutionally guaranteed right. It is important to recognise that this ruling was based on a progressive egalitarian reading of constitutionality. Taiwan has never criminalised homosexuality, for example, but, unlike many other countries, that was by omission rather than correction. The Constitution of the Republic of China does not address LGBTQ+ rights and, while that theoretically implies that discrimination is not condoned, it also meant that it was not directly condemned either.

Given these circumstances, it is imperative to stress on the importance of how the Constitutional Court interpreted the questions of individual dignity, liberty and equality vis-à-vis the right to marriage. By agreeing that a constitutional right meant equal access – unless explicitly stated otherwise – the court underlined the importance of the rule of law when it comes to protecting minorities. Furthermore, by providing an ultimatum to the Legislative Yuan of implementing its ruling no later than 24 May 2019, the judiciary sought to prevent political manoeuvring that would negate the result.

Step Two: Electorate Setback

This political manoeuvring immediately took shape in the form of strong opposition from conservative and Christian groups. Government inaction was almost definitely influenced by these campaigns, which meant that, despite the judiciary’s ultimatum, the momentum of its ruling was effectively stalled. The Alliance for Next Generation’s Happiness, a conservative Christian group submitted referendum questions to try and counteract the ruling.

Their campaign took advantage of a December 2017 reform that reduced the threshold of necessary signatures for a question to appear on the ballot from 5 per cent to 1.5 per cent of the electorate. The Central Election Commission accepted the group’s proposal in April 2018, introducing questions to limit marriage to a union between one man and one woman, introduce a special law for same-sex unions (effectively creating civil partnerships but not marriage) and prevent LGBTQ+ positive education in schools.

In September 2018, advocacy and activist groups countered these questions with their own set, aimed at protecting same-sex marital rights as per the judicial ruling and implementing the Gender Equality Education Act for LGBTQ+ positive sexual education classes in school. With turnout averaging 55 per cent, the results would not necessarily indicate the will of the entire electorate, but certain trends did emerge.

Of the votes cast, more than 72 per cent supported narrowing marriage to being between only one man and one woman and over 67 per cent supported not implementing LGBTQ+ positive education, scoring wins for the conservative Christian groups. By contrast, only 32 per cent and 34 per cent of the voters supported the counter-questions in favour of same-sex marriage and LGBTQ+ positive education, respectively.

The numbers do imply that the questions did not directly cancel each other out, but the final decisions were still losses for the LGBTQ+ community. Interestingly, the same voters also supported the protection of same-sex couples outside of the Civil Code by a margin of 61 per cent in favour and 39 per cent against, indicating a willingness to consider some form of recognition for couples as long as it was not marriage.

However, there was always a danger of such recognition being largely cosmetic, as the creation of a separate category (civil unions) would not automatically guarantee the same rights under marriage, including inheritance rights, spousal privileges, adoption rights and so forth.

Step Three: Dealing with the Contradictions

At the end of the aforementioned stages, there were two differing results. The judiciary categorically defended the rights of same-sex couples to marry, but the electorate (or at least, a portion of it) rejected it. The Government had pre-emptively announced that the judicial ruling would still be in effect regardless of the referendum, but the margins were still concerning. Nonetheless, the Judicial Yuan stressed that the referendum could not overrule its decision and the Minister of Justice set a March 2019 timetable for the draft bill.

The Executive Yuan published the draft in February 2019, which included the protection of inheritance rights, medical rights and adoption of biological children of partners, and penalties for adultery and bigamy. While not perfect in the eyes of all advocacy groups, it was a significant step forward. Conservative opposition to the proposal included counter-proposals that would fall short of recognising same-sex partnerships as “marriage”, but these were rejected. On 17 May, the Legislative Yuan voted in favour of the bill, which was subsequently signed by the President on 22 May and came into effect on 24 May.

Despite the results of the referendum questions, the ultimate success of the same-sex marriage campaign highlights a strong element of democratic justice. While democratic rule does technically favour the majority, a cornerstone of human rights is the protection of minorities and marginalised groups. With the initial judicial decision framed as a protection of existing constitutional liberties, the executive support for it despite the discontent of the electorate, and the final enshrinement of the decision into law by the legislature, Taiwan has proven that civil rights can and will triumph over the tyranny of the majority.

Ibtisam Ahmed is a Doctoral Researcher at the School of Politics and IR, the University of Nottingham. A member of the Asia Research Institute, his thesis examines colonialism and decolonisation through the lens of utopia. He has written on and worked extensively on LGBTQ+ rights in Asia and the Commonwealth.

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.

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