Written by Annie Huang.
Image credit: 2018同志大遊行 by 孫晨哲/ Flickr, license: CC BY-NC-ND 2.0.
One historical human rights progress Taiwan made happened in 2019 when the government legalised same-sex marriage. It was a rainy morning, and hundreds of LGBTI groups and activists were standing outside the Legislative Yuan waiting for results. When the president of the Legislative Yuan announced the legalisation of same-sex marriage, the rain stopped, and a rainbow appeared in the sky. People hugged and wept with joy for this historical first in Asia. However, at the same time and in the same plaza, a group of Taiwanese same-sex people burst into tears not because of happiness but because of sadness and discrimination. Transnational same-sex couples are left out of the legalisation content in the same-sex marriage bill without much reasonable reason.
Groups Excluded from Same sex Marriage.
After almost three years of gay marriage legalisation, the transnational groups are still waiting for their marriage rights. The Ministry of Interior prohibits same-sex couples from registering when one partner is from a country or jurisdiction where same-sex marriage does not legalise. The legal basis of the prohibition is Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法), which stipulates that the formation of a marriage is governed by the laws of each partner’s home country. This means same-sex marriage is not allowed when one of the couples is not on the list of 29 countries with legal same-sex marriage.
Even more inhumane is that during the pandemic, when countries including Taiwan strictly practised the control of borders, couples without legal marriage certification could not enter Taiwan, making it very difficult for couples to see their loved ones in person. In those 2 to 3 COVID years, transnational heterosexual married couples had no difficulty flying in, gathering and staying with their family in Taiwan. Still, transnational same-sex couples have no right to do so.
Five Winning Lawsuits for Transnational Same-Sex Marriage
When the situation is recognised as the opposite of human rights protection, one of the most important LGBTI rights non-profit organisations, Taiwan Alliance to Promote Civil Partnership Rights (台灣伴侶權益推動聯盟 TAPCPR), decided to start having its attorney team take the issue to Taiwanese court. The organisation has filed transnational same-sex marriage lawsuits involving couples of various nationalities since 2019. As a result, from 2019 to 2022, there were five court rulings allowing transnational same-sex couples to register marriage. The judges’ decisions imply that taking the marriage rights from transnational same-sex couples are illegal and against constitutional principles.
The five winning suits include Taiwan and Japan couples, Taiwan and Macau couples, Taiwan and Singapore couples, Taiwan and Hong Kong couples… According to the court ruling, one of the important winning reasons is its violation of public order and good morals. According to Article 8 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements （涉外民事法律適用法第八條）,” Where this Act provides that the law of a foreign State is applicable if the result of such application leads to a violation of the public order or Boni mores of the Republic of China, that law of the foreign State is not applied.”, which the prohibition of transnational same-sex marriage situation can apply.
”I hope today’s ruling will pave the way for the inclusion of all transnational same-sex couples in Taiwanese law”, almost every winning party would tell the media the same non-extravagant wish after the court ruling. Unfortunately, the wishes have not yet come true. Winning the cases does not imply other transnational same-sex couples’ rights. Only the winning ones can bring the court decision to the local registration office for the marriage. The change of bill that can really allow all gay marriage equally happened has not yet happened. According to TAPCPR, more than 470 same-sex couples are still waiting for marriage rights.
The Government Needs to Learn from The Losing Cases and Start Changing
“The legalisation of same-sex marriage in Taiwan is the result of a constitutional interpretation, so it is against our legal system if a foreign country does not allow it and thus should not be applied,” the secretary-general of TAPCPR, Chien Tsu-Chieh, explained during one of the interviews. She expressed the fact that the court decision is just an “ad-hoc” status and does not yet mean all Taiwanese citizens have the freedom to marry whoever they love.
TAPCPR’s lead attorney, Victoria Hsu, also stressed the administrative agencies need to face the fact that the existing interpretation of governing laws has been rejected by the court five times for being illegal and inapplicable. Therefore, the government must learn from the losing cases and start to make changes soon, so equality and justice can be a real practice instead of in Taiwan.
In fact, human rights and LGBTI advocacy groups have been pushing for the government to expedite the amendment of the law so that transnational same-sex couples could have equal rights with all other Taiwanese citizens. According to International Law, all humans should be guaranteed to be protected from discrimination, despite their race, sex, political opinion, national or social origin, and birth or other status. Furthermore, the prohibition of transnational same-sex marriage is against the two United Nations Human Rights Conventions, the International Covenant on Civil and Political Rights (公民與政治權利國際公約) and the International Covenant on Economic, Social and Cultural Rights (及經濟社會文化權利國際公約) adopted by Taiwan in 2009, therefore the government should have no excuse to not speed up the amendment process.
Endless Waiting for Transnational Same-sex Couples
In January of 2021, the Taiwanese Judicial Yuan submitted a revision of the act related to transnational same-sex marriage to the Cabinet for review. But two years have passed, and the Cabinet has made little movement on a draft amendment; transnational same-sex couples are still waiting for their rights to come.
In fact, on May 24, 2017, when the Taiwanese Constitutional Court announced J.Y. Interpretation No. 748, it ruled the prohibition of same-sex marriage in the Taiwanese Civil Code violated the Constitution. And in the court ruling paper, the freedom of marriage protected by the Constitution includes the freedom to decide “whether to marry” and “whom to marry”. Therefore, it cannot be clearer that if a Taiwanese LGBTI person is in love with a foreigner, they should be allowed to get married, just like all others. Hence, the Taiwanese government should protect civil rights like marriage, not taking away the rights and ignoring despairing couples. After all, whether transnational or national, same-sex or heterosexual, everyone is the same regarding love, and marriage is a basic human right that we should not have to fight for.
Two days after the article was released, on January 29, we received the wonderful news that the Taiwanese government formally recognised transnational same-sex marriage. Other than China and Taiwan couples, whose marriage is regulated by the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (兩岸人民關係條例), all transnational same-sex couples now have the legal right to marry in Taiwan. We are more than happy for the change of law, since transnational same-sex couples who have been waiting for more than three and a half years may finally celebrate the Lunar New Year in Taiwan as real families.
Annie Huang (she/her) is an INGO senior leader who has been focusing on sustainability, human rights, and especially women and LGBTI rights. She previously worked in Amnesty International Taiwan as the acting section director for two years and had successfully worked with local LGBTI organizations to push through the legalization of same-sex marriage in the country. She is currently working in Greenpeace East Asia as a regional project leader. Which focus on climate change and environmental work. What’s more is that Annie is also an entrepreneur owning a fair trade coffee shop in Taipei, The Lightened, campaigning for fair trade, ethical consumption and laborers’ rights. With her heart on the human rights and social justice movement in the region, she believes there is so much to do and will never stop doing more.
This article was published as part of a special issue on ‘Farewell 2022 and Welcome 2023’.