Written by JhuCin Rita Jhang
Image credit: Guy of taipei, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons
As of May 2022, more than 8,000 same-sex couples have gotten “married” in Taiwan under “The Act for Implementation of Judicial Yuan Interpretation No. 748”, commonly referred to as “same-sex marriage law”. However, the perspicuous absence of the word “marriage” in an act meant to provide marriage rights is made nebulous by the celebration inside the country and the acclaim from other nations in the world.
A History Recap
When the Taiwan High Court ruled the Civil Code’s unrecognition of same-sex marriage unconstitutional on May 24, 2017 – and gave the authorities two years to either amend existing legislation or enact new laws to same-sex marriage – many did not foresee the two-year-long turmoil that ensued.
In the next two years, both the proponents and opponents of same-sex marriage (and the broader tongzhi/LGBTQ+ rights) mobilised support through massive demonstrations, rallies, and TV commercials. The Christian Church-based opposition was extremely effective in their moral conservatism. Indeed, their campaigns focused on fear appeals that converged with the traditional Confucian family values dearly held by many Taiwanese above the age of 50. They took the “family protection” discourse and painted same-sex marriage as a door to a total degeneration of society, and it turned the general public’s nonchalance into disagreement (while some were urged into staunch support). Especially telling was the results of the 2018 referendum in which three anti-tongzhi/LGBTQ+ motions passed the threshold for legal consideration with 35% of all votes, while the two pro-tongzhi/LGBTQ+ motions failed with just 18%.
With the deadline set by the High Court approaching (24 May, 2019), the pressure on the Legislative Yuan was running high. On the one hand, the Democratic Progressive Party (PDD)-led Legislative Yuan had to keep the campaign promise made by DPP president Tsai Ying Wen. Since same-sex marriage was one of the major platforms that contributed to her success, the ideal approach for the Legislative Yuan would be to amend the Civil Code to accommodate same-sex marriage, which would appeal to the younger generation and would align Taiwan with international human rights standards. On the other hand, the Legislative Yuan had to honour the majority opinion shown in the 2018 referendum and appease angry older supporters by creating a special law instead of amending the Covil Code. There seems to be a no-win for anyone involved.
Eventually, the Legislative Yuan passed the Act for Implementation of Judicial Yuan Interpretation No. 748, which served three purposes: to honour the wish of enacting a “separate but equal” special law for non-heterosexuals, to avoid using the controversial word “marriage,” but to still provide same-sex couples legal rights akin to those in Civil Code.
The Problem with “Almost as Good.”
Some praised this clever manoeuvre of the Legislative Yuan while others criticised it for compromising. Eventually, however, the general public went back to indifference. Since then, it has been difficult to garner support from the public that falsely believes that there are no more issues to fight for now that same-sex marriage is legalised, with some even asking, “tongzhi can get married, what more do they want?”.
And yet, there are major legal rights not covered by the Act for Implementation of J. Y. Interpretation No. 748. First, it does not allow same-sex couples to co-adopt a child unrelated to either parent by blood. Once a same-sex couple gets married, they lose the right to adopt whatsoever, and they would have to obtain a divorce to be able to adopt as a single person. Even if someone adopts a child first as a single and then gets married to a same-sex person, the spouse still cannot cross-adopt this child. This bizarre and counterintuitive legal conundrum sends many same-sex couples wishing to co-adopt on a long, winding legal fight. Even though in January 2022, one married same-sex couple had won the lawsuit and became the first-ever same-sex couple to co-adopt a genetically unrelated child, this was ruled on a case-by-case basis. Consequently, it did not constitute a legal precedent for legal reforms.
Second, The Act for Implementation of J. Y. Interpretation No. 748 does not protect the rights to access assisted reproductive technology (ART) in Taiwan. The Assisted Reproduction Act (ARA) 2007 only allows reproductive medical assistance to infertile couples defined as husbands and wives (where a wife has a functional uterus) while excluding singles and same-sex couples. Unfortunately, the Act for Implementation of J. Y. Interpretation No. 748 did not change ARA’s legal scope of application. Even though Taiwan has advanced assisted reproductive technology and the national sperm bank that provides the necessary infrastructure for female same-sex couples to conceive, the legal barriers make this medical technology inaccessible to them. It is even harder for male same-sex couples to have genetically related offspring. Those who wish to have genetically related children have to go overseas for ART procedures or do home insemination, which adds an undue physical, mental, and financial burden.
Finally, transnational marriage rights are also denied to same-sex couples if the foreign partner is from a country that does not recognise same-sex marriage. Certain legal cases have been won, but like the case with co-adoption rights, the ruling form no legal precedent for legal reforms. As a result, these transnational same-sex couples usually have to go to great lengths to stay in Taiwan, living in precarious conditions, in order to be with their loved ones.
Another battleground is gender equality education in compulsory education (elementary school, middle school, and high school). In the 2018 referendum, one motion that passed the threshold for legal consideration was to exclude issues about tongzhi/LGBTQ+ from gender equality education. Even though the Ministry of Education restated its stance supporting the inclusion of diverse sexual orientations, gender expressions, and gender identifications in the curriculum, the church-based organisations continue to protest and have been successful in providing anti-Tongzhi/LGBTQ+ and abstinence-only sexual education by operating as “parents organisations” that offer “character education” or “life education.” These classes are usually arranged outside official school hours (before the first period), so they can circumvent the curriculum committee course content review. However, the Ministry of Education and the local Department of Education have not been keen to address this problem.
Ever since the passing of The Act for Implementation of J. Y. Interpretation No. 748, the spotlight, donations and funding have moved elsewhere. However, Tongzhi/LGBTQ+ rights groups, such as Taiwan Tongzhi Hotline Association, Equal Love Taiwan, Taiwan LGBT Family Rights Advocacy, and Taiwan Alliance to Promote Civil Partnership Rights, are still doing their best to attend to various needs of the community and many researchers are also trying to increase scholarly understanding of various tongzhi/LGBTQ+ issues. However, the government’s efforts are markedly lacking and desperately needed. As the pressure from the constituents could usually incentivise politicians, this article aims to join the ongoing fight for equal rights for all by raising awareness and calling for action.
While this piece is a reminder that there is still much left to do, the author deeply appreciates the tremendous and tireless efforts made by all tongzhi/LGBTQ+ and gender equality groups and individuals, and she understands the difficult decisions the Legislative Yuan had to make.
JhuCin Rita Jhang, Ph.D. is a Project Assistant Professor in the College of Public Health, Global Health Program at National Taiwan University. She is also president of the North American Taiwan Studies Association (NATSA).
This article was published as part of a special issue on “Queer Taiwan”, find all the articles here.