TDB Vol. 3 No. 3: The Ins and Outs of Taiwan’s Landmark Vote on Same-Sex Marriage

TDB Vol. 3 No. 3: The Ins and Outs of Taiwan’s Landmark Vote on Same-Sex Marriage

After years of battling in the legislature and on the streets, a watershed ruling by the Constitutional Court and referenda victories by conservatives, a middle-ground bill was finally passed by the Legislative Yuan on May 17 giving same-sex couples most, though not all, of the same rights as heterosexual couples. But the campaign isn’t over, not for those who oppose marriage equality, and not for members of the LGBTQ community who argue that there is still room for improvement. Alison Hsiao walks us through the issue.

 

More than 500 Taiwanese same-sex couples registered their marriage on May 24, two years to the day after the Council of Grand Justices issued the historic Constitutional Interpretation No. 748, which required the country’s legislative body to make amendments to existing laws to guarantee marriage equality within two years. Since then, controversies abounded as to which laws were to be tweaked or implemented for same-sex couples. Referenda opposing any changes to the Civil Code and calling for a separate law were held, and passed, on Nov. 24, 2018. The Tsai Ing-wen administration came up with a creatively named bill that aimed for the middle ground on the issue, and used its legislative majority to secure its passage. Thus, on May 24, marriage equality was finally achieved in Taiwan…almost.

20 couples attended the collective wedding ceremony held by the Taipei City Government after registering their marriage at Xinyi Household Registration Office on May 24. (Olivia Yang/TFD)

Recognized progress

Marc and Shane were among the couples who had registered their marriage at Taipei’s Xinyi District Household Registration Office on May 24. In a relationship with his partner for the past 12 years, a highly emotional Shane said after registering that in the past he had not dared to display his rainbow flag on his way home despite waving it prominently during his first pride parade. “Today I’m here standing in front of so many people to say outright that I’m getting married, that I’m gay. I feel blessed and really proud of my country for being so progressive.”

Marc and Shane registered their marriage the first day after the same-sex marriage law went into effect.

But many had actually felt despair over the country’s conservativeness just six months ago, when the referenda proposed by anti-same-sex-marriage groups garnered overwhelming public support — with a bit of help from confusing questions.

Referendum Question No. 10 rejected the possibility of the country changing the wording of the Civil Code to include same-sex marriage. And Referendum Question No. 12 said that same-sex couples’ right to “live permanently together” should be governed by a separate law. (Note that although the referendum question deliberately avoided mentioning “marriage,” the explanatory note accompanying the question said the groups believed “marriage equality” should be upheld.)

The twist was that in order to comply with Judicial Interpretation No. 748, which demands “marriage equality,” the groups asked in the referendum questions not whether one approves of same-sex marriage (which would have been a direct challenge to the Interpretation, whose legal status is equivalent to the Constitution), but whether one agrees that the Civil Code should remain unchanged and that same-sex unions should be governed separately.

► See: TDB Volume 2 No. 8 The Anti-Same-Sex-Marriage Referendum Questions and their Implications

The referendum that called for a separate law for same-sex unions — which many in the LGBTQ community regarded as discriminatory — passed on Nov. 24. In response, the government proposed a separate bill and had parliament endorse it before the May 24 deadline.

The Tsai administration, which was not of one mind on the issue, had sought to avoid antagonizing conservatives through using the language of “same-sex marriage” while keeping its promise and the spirit of “marriage equality” enshrined in Interpretation No. 748.

The expedient but clever move, proposed by the Executive Yuan, was a bill titled “The Enforcement Act of the Judicial Yuan Interpretation No. 748.” It was ostensibly in full compliance with Interpretation No. 748, and the words “same-sex marriage” did not appear in the title. This also explains why it was considered a concession to the opposition within the ruling Democratic Progressive Party (DPP) caucus, when Premier Su Tseng-chang agreed to remove “same-sex marriage” in Article 2 of the original bill and instead insert “register marriage” in Article 4, a day before the legislative vote.

The vote on Article 4 of “the Enforcement Act of the Judicial Yuan Interpretation No. 748” bill, which included the wording “registering marriage,” decided the nature of relationships for same-sex unions. Of the 113 lawmakers in the Legislative Yuan, 93 were present and 66 voted yes, including 54 from the DPP, seven from the Kuomintang (KMT), and five from the New Power Party. The seven KMT lawmakers, mostly of the younger generation, are reported to have had a heated exchange with the KMT caucus leadership in the caucus meeting before the vote, and some party members have called for them to be punished following the vote.

With the benefit of hindsight, we know now that the passage of the bill was not a foregone conclusion. Local reports revealed that the Tsai administration was still tallying and anxiously calling DPP legislators to talk them into casting a yes vote mere hours before the vote in the legislature. According to many DPP lawmakers, Premier Su Tseng-chang’s powerful message to the DPP caucus, in which he compared the historic moment to the Kaohsiung Incident 40 years ago, when only 15 lawyers, including Su himself, defended political activists against an authoritarian regime, was the game changer.

‘Disinformation’

When the bill was being debated on the legislative floor on May 17, anti-same-sex-marriage lawmakers urged the Legislative Yuan to “respect the referendum results,” which they contended represented the “new public will” and superseded Interpretation No. 748. Even if that were true (and it is not), the bill in no way violates the referendum results.

“Two years ago there was still discussion in the legislature over different versions of the same-sex marriage bill, which included the Civil Code-amending version and a separate-law version. So it is exactly because we respect the referendum results that we have only this bill [of a separate law] today,” the New Power Party’s Freddy Lim told the legislature before the vote.

Lim also denounced several lawmakers, who said of the bill that it “polarized society and manufacturing social conflicts.”

“You know very well that it is not the case, but you decided to go along with those distorted views and disinformation,” he added.

Lim’s denunciation did not prevent the spread of this narrative. On its front page the following day, the Chinese-language China Times headlined its top article, “Slapping the referendum [results] in the face.” Anti-same-sex-marriage groups staged a protest on May 25, in which they accused the Tsai administration of “trampling on the popular will” and declaring that “democracy is dead.”

KMT Legislator Lai Shyh-bao (left) makes remarks at the Legislative Yuan with a placard asking his colleagues to “respect the new popular will of 7.65 million votes.” Anti-gay groups including one that calls themselves “Taiwan Citizenship Solidarity Organization,” staged a protest (middle and right, photo credit: TCSO) a day after the Act went into effect, driving a hearse lamenting “the death of democracy.”

‘Not over’

For anti-same-sex-marriage groups, the fight is not over. They have called on the public to take lawmakers and parties who supported same-sex marriage “off the shelves” in the next elections. On the day the Act coming into effect, anti-same-sex-marriage groups announced they were forming a new political party containing the name “stable power” and would field candidates in the 2020 legislative elections.

For its part, the LGBTQ community is also determined to deal with the unfinished state of the country’s marriage equality. Victoria Hsu of the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) said on May 25 — the day the alliance organized a traditional Taiwanese-style wedding banquet for same-sex couples on Ketagalan Boulevard — that since the law initiated by the referendum results can be amended or rescinded two years after its implementation, they will continue to push for the inclusion of same-sex couples in the Civil Code.

The Taiwanese traditional roadside wedding banquet held on May 25, which the TAPCPR said was the realization of a promise made in 2013 when the organization held the first wedding banquet at the same location to campaign for a then-proposed marriage equality bill. Organizers said they will come back to this spot when same-sex marriage is achieved. (photo credit: TAPCPR)

“We understand there was immense pressure on the administration, and this separate law is the best we can have so far,” Hsu said. However, the inability of a same-sex spouse to adopt his or her partner’s non-biological children, the inability to register transnational same-sex marriages in cases where a partner is from a country where same-sex marriage is not legalized, and the non-applicability of in-law relationship to same-sex couples, show that there is still discrimination in how same-sex marriage is treated, she added.

“After May 24, 2021, legislators will have the right to include what is now governed by the separate law into the Civil Code. The reason we have a separate law is exactly because the referendum results are being upheld, so those spreading the rumor about the legislation flouting the referendum results should just stop,” Hsu said.

Chi Chia-wei with the pen: Chi, regarded by many as the godfather of the country’s gay rights movement, received the pen that was used by President Tsai Ing-wen to sign the same-sex marriage law into effect as a gift from the president.

 

TDB Vol. 3 No. 1: A Recap of Post-Election Analyses

Many have attributed the results of the November 2018 municipal elections, in which the ruling Democratic Progressive Party suffered a major setback, to the referenda that were held concurrently with the vote. Evidence, however, suggests otherwise. Alison Hsiao delves into recent research on the subject.

 

With the opposition Nationalist Chinese Party (KMT) bagging 15 of 22 local government mayoral positions in the Nov. 24, 2018, nine-in-one elections — an increase of nine-cities/counties from the November 2014 elections which turned “green land to blue sky,” as local media described the outcome — many have concluded that this was a victory for the pro-China groups in Taiwan. For Taiwanese voters, however, what was at stake in the past elections was much more than that. In short, it was a victory for a party that often has been referred to as “pro-China,” but certainly not a win for the (politically) pro-China ideology.

Han Kuo-yu, a marginalized character in the KMT who achieved nationwide popularity and a high online visibility in the lead-up to the elections — and who against all odds won the mayoral election in Kaohsiung — declared that he would abide by the so-called “1992 consensus” only after his election in order to, in his words, push for cross-Strait trade in Kaohsiung. Han campaigned on the slogan “economy 100% and politics 0%” while vowing to “make big money” for the city. There was a surge of searches on Google for the “1992 consensus” in Kaohsiung after Han’s announcement. Most Taiwanese have no clear idea what the “1992 consensus,” an alleged cross-Strait mutual understanding that has become the basis for cross-Strait interactions since 1992, stands for. The Tsai Ing-wen administration’s refusal to recognize the “1992 consensus” has alienated Beijing, which in retaliation has suspended all official contact with Taipei.

In Taipei and other municipalities, meanwhile, the debate was mainly about municipal affairs.

What swayed voters? A highly discussed issue on social media following the elections was whether a series of referenda, which were held concurrently with the elections, may have influenced voter decisions in their choices of parties and candidates, and if so, in what way.

Referendum effects

It is hard to say with certainty that the referenda resulted in the ruling party’s defeat, as it involves assessing a counterfactual: how voters would have voted absent the referenda. But there is no doubt that the ruling party was on the defensive on each of the referendum battlefields, and issue-framing, as some already demonstrated in the Taiwanese context, can be determining in one’s attitude toward public policies. The failure to take a stand in a debate on public policies would then affect how voters view the ruling party.

 

Voters lining up to cast ballots in the local elections and the referenda on November 24, 2018

A quick review of the outcomes of the 10 referenda questions shows that those who were more aligned (in broad terms) with the ideology of the ruling party — Question No. 13 (name change for the 2020 Tokyo Olympics), Question No. 14 (same-sex marriage) and Question No. 15 (gender education) — were all defeated, while those proposed and endorsed by, or more ideologically aligned with, the opposition party, won big.

Referendum Questions No. 7, 8 and 9 were proposed by the KMT, while No. 16 was endorsed by it. Austin Wang, an assistant professor in the department of political science at the University of Nevada, Las Vegas, found that Questions No. 7, 8, and 9 were unsurprisingly highly correlated with Question No. 16, meaning that in a township, the more people who voted yes on Questions No. 7, 8, and 9, the more did so on Question No. 16 as well.

The fact that the result of the vote on Question No. 13 — proposing a name change from “Chinese Taipei” to “Taiwan” at the 2020 Tokyo Olympics — is, according to Wang’s findings, negatively correlated with results for Questions No. 7, 8, 9, and 16, confirms the earlier statement that party identity played a major role.

Wang didn’t find a positive correlation between the results of the KMT-initiated Questions No. 7-9, and anti-same-sex-marriage proposals No. 10-12. But in the same article, he found that how one voted on Questions No. 13, 14, and 15, and Questions 7-9, 10-12, and 16 can basically determine whether they are more liberal or conservative and whether they are more pro-“green” or pro-“blue.” Moreover, those who voted Yes on Questions No. 10-12 (proposed by anti-same-sex-marriage groups) were found to be in the same (or nearly the same) quadrant as those who voted Yes on Questions No. 7-9 and 16 (graph 4 in Wang’s article).

Analysis by Yang Kuang-shun, a PhD student studying comparative politics at Arizona State University, also stirred up some debate online. Yang’s findings echo Wang’s in that he found that the more voters supported name change (Question No. 13) in a district/township, the less they agreed with Question No. 10 (defining marriage in Civil Code as union between a man and a woman).

No significant correlation was found between support for Question No. 10 and the percentage of vote obtained by candidates from the ruling Democratic Progressive Party (DPP). However, the support rate for Question No. 10 is negatively correlated with the percentage of vote Tsai Ing-wen received in the 2016 presidential election; in other words, areas that were more supportive of Tsai in 2016 were less so of Question No. 10. But, as Yang observed, the DPP also saw a greater increase in vote percentage in areas that were more supportive of marriage being restricted to between a man and a woman.

Yang argued that the contradictory results showed that while the DPP gained support by supporting same-sex marriage (vaguely) during the 2016 presidential election, it also depends on some strongholds that are more conservative. This is a contradiction the party will have to resolve in future.

The KMT’s gain

Whereas there was no clear advantage in the DPP’s (vague) support for same-sex marriage, there definitely was a gain for the KMT by being (unofficially) anti-same-sex marriage. In their study, sociologists Wang Wei-pang, Jhang Ren-wei, and Chen Mei-hua concurred with Yang in that DPP supporters are not on the same page when it comes to same-sex marriage. However, they also found that there was a significant increase in KMT supporters’ anti-same-sex-marriage tendencies between 2012 and 2015, which solidified and mobilized KMT supporters in the November elections.

Pro-same-sex-marriage groups held a pre-referendum rally on November 18. (Photo credit: Hsiang-wei Wang)

The study shows that age is the major divide in attitudes toward same-sex marriage. Irrespective of party affiliations, in 2015, the majority of those born before 1960 were against same-sex marriage, while among those born after 1980, opposition to same-sex-marriage is no more than 18%.

However, the interesting finding (see graph 6) is that KMT supporters, who were actually less anti-same-sex marriage in every age group in 2012 than their DPP counterparts, became less tolerant in the three-year period, with each age group, except those born after 1980 (which saw a 7% increase), seeing a more than 10-percentage point increase in their anti-same-sex-marriage attitudes in 2015.

While there was no increase in DPP supporters’ anti-same-sex-marriage attitudes between 2012 and 2015, it is worth pointing out that DPP supporters born before 1970 were in 2015 even more anti-gay-marriage than their KMT counterparts, according to the poll, a fact that again corroborates the account that the DPP administration has faced a tough dilemma and apparently did not succeed in convincing its supporters between 2015 and 2018.

Not the referenda

Lin Tzung-hung, an associate research fellow at the Institute of Sociology at Academia Sinica, argued that interests, more specifically reactions to the Tsai administration’s pension reform and factional struggles in the agricultural sector, rather than the referenda, determined the outcome of the November elections.

Comparing votes in 2014 and in 2018, Lin has established that there was a statistically significant increase in the number of votes for the KMT in cities and counties with large numbers of veterans, who, like other retired public servants, were affected by recent changes — necessary but not universally popular — to the pension system (while veterans are only part of the group of “military personnel, civil servants and public-school teachers,” Lin said it is a sufficiently representative sample). In other words, disgruntled retired military personnel, and public servants in general, appear to have used the November election to punish the Tsai administration and mobilized in large numbers to do so.

Likewise, the more agriculture (fishery and husbandry included) workers a city or county has, the greater the increase in KMT support in 2018 compared with 2014.

See also: TDB Vol. 1 No. 9: Pension Reform: A Bitter but Necessary Pill

Local factions have been a perennial topic in the study of Taiwanese politics, and voters from the agriculture sector represent a formidable force. The dispute over the Taipei Agricultural Products Marketing Co and its general manager, Wu Yin-ning, was a sign of how factional politics played out. Han Kuo-yu, the newly elected Kaohsiung mayor, was the corporation’s former general manager whose wife was once a Yunlin County councilor and hails from a political family in Yunlin County that is politically aligned with former Yunlin County commissioner Chang Jung-wei. Chang is the leader of the Yunlin faction. His daughter, Chang Chia-chun, was a KMT lawmaker (2008-2012, 2012-2016) and his sister, Chang Li-shan, is an incumbent KMT lawmaker.

For Lin, what Wang and Yang have found supports his argument that the referenda were not the decisive factors in the November elections. It would therefore be dangerous and misleading to point the finger at the wrong cause, as some conservative DPP politicians who oppose same-sex marriage have done.

Feature photo: courtesy of Central Election Commission

TDB Vol. 2 No. 8: The Anti-Same-Sex-Marriage Referendum Questions and their Implications

TDB Vol. 2 No. 8: The Anti-Same-Sex-Marriage Referendum Questions and their Implications

Taiwanese voters will be asked on Nov. 24 to make a call on a series of questions pertaining to same-sex marriage in Taiwan. Convoluted language, misplaced expectations and the government’s middle-ground approach could cause problems down the road. Alison Hsiao looks into the matter.

 

On May 24, 2017, the Constitutional Court ruled that the Civil Code provisions prohibiting marriage between two people of the same sex are in violation of the Constitution that guarantees people’s freedom of marriage and right to equality. The landmark ruling also stated that the concerned authorities (i.e., the Legislative Yuan) shall amend the relevant laws within two years from the issuance of this interpretation. On Nov. 24 this year, exactly six months to the day away from the second anniversary of the court ruling, Taiwanese will vote on referendum questions asking whether they agree with the statement that marriage regulated by the Civil Code should be limited to a union between a man and a woman, and whether they agree to protect the right of same-sex couples to form a permanent union by means other than marriage as stipulated in the Civil Code.

Soon after the Central Election Commission (CEC) approved the said referendum questions in March, people began asking how they did not contradict the Interpretation and whether the result of this referendum could upend what the Constitutional Court has granted. Now with the referendum in the offing, a more pressing and determining question is: how will the result of this referendum, binding in the sense that it is “a proposal of initiative of the legislative principles for law” (Referendum Act, Article 30), affect the country’s prospects on the same-sex marriage issue?

► See: TDB Volume 1 No. 5 Constitutional Interpretation No. 748 Paves the Way for Marriage Equality in Taiwan

Taiwan’s gay pride parade is the largest in Asia. (photo credit: J. Michael Cole)

Wordplay

The CEC approved the referendum questions concerning the definition of marriage and same-sex couples’ right to form a union (along with a question about gender equality education) on April 17. This came after several hearings and criticism from pro-same-sex-marriage groups who argued that since the Judicial Interpretation was equal to the Constitution in status and effect, referendum proposals that attempt to sustain what has been ruled unconstitutional is in itself unconstitutional.

CEC Chairman Chen In-chin, in defense of the decision, said the proposals were no longer unconstitutional after the groups proposing the questions made the necessary revisions.

The questions, before revisions, were, “Do you agree that marriage should be union between a man and a woman,” and “Do you agree that the rights for two persons of the same sex to form a permanent, common life should be protected by a separate law under the premise that the definition of marriage — union between a man and a woman — is not changed?” During hearings, legal experts and officials at the Ministry of Justice deemed those unconstitutional and in contradiction of Judicial Interpretation No. 748, and for this reason they very likely would have been rejected by the CEC.

To avoid such an outcome, anti-same-sex-marriage groups replaced “marriage” in the referendum questions with “marriage as regulated by the Civil Code,” which for the CEC meant that the proposers of the two referenda “clearly recognize that their referendum proposals do not preclude same-sex couples from exercising the ‘freedom of marriage’ cited in Judicial Interpretation No. 748 in the form of other laws” and “recognize the equal protection of same-sex couples’ freedom of marriage.”

In other words, the underlying statement was that, even if the two referenda passed, it by no means entails that same-sex couples would be deprived of the right to marriage as guaranteed by Judicial Interpretation No. 748.

In the Referendum Bulletin (emitted on Oct. 24 and again on Nov. 2), the Executive Yuan also explicitly stated that the right of same-sex couples to get married is protected by the Constitution, as stipulated in Judicial Interpretation No. 748, and would therefore not be affected in any way by the results of the two referendums. The Executive Yuan added that if the two referenda passed, the government would “propose to amend the same-sex-marriage-related regulations on the basis of both the referendum results and Judicial Interpretation No. 748 and submit the amendment proposals to the Legislative Yuan for review” (emphasis added).

 

On November 18th, a week ahead of the referendum, a rally of more than 100,000 people gathered on Ketagalan Boulevard in Taipei in support of same-sex marriage, calling on voters to vote yes to pro-same-sex-marriage groups’ proposals. (Photo credit: Li Sihwei)

Questionable Intent

Anti-same-sex-marriage groups railed against the Executive Yuan’s opinions as stated in the Referendum Bulletin, accusing the government of distorting the meaning of their referendum questions, which they maintain do not advocate for same-sex marriage but rather aim to propose same-sex civil partnership. The groups again emphasized their stance during a TV debate held earlier this month, arguing that Judicial Interpretation No. 748 had not granted unions by same-sex couples marriage status.

The anti-same-sex-marriage groups never imagined, as the CEC said they had, that replacing “marriage” with “marriage as regulated by the Civil Code” in their referendum questions would in any way make them recognize same-sex couples’ freedom of marriage. Notwithstanding what they told the CEC, they believe that if there is to be a separate law, it can only be a same-sex civil partnership law, not a same-sex marriage law.

Weighing in, National Taipei University Law professor Kuan Hsiao-wei has argued that the content of the proposals by the anti-same-sex-marriage groups makes their intentions “not understandable,” which under the Referendum Act would have given the CEC sufficient grounds to reject their proposals in the first place. Kuan called on the CEC to investigate whether the clarifications given by the groups for the controversial referendum proposals during the review process may have been insufficient — and if so, whether approval of their questions by the CEC may have been inappropriate.

The implications of unclear referendum proposals could be serious. If they pass on Nov. 24, for those who falsely believed they were voting against same-sex marriage of any kind, legislation permitting a separate same-sex marriage law could stoke up radical responses and political outrage. A same-sex-civil-partnership law, on the other hand, would betray the spirit of Judicial Interpretation No. 748 and the expectations of liberal groups. And if pro-same-sex-marriage groups want to challenge the constitutionality of the (possible) same-sex-civil-partnership law, the process would take years before the Constitutional Court makes a final ruling.

Political Will

Earlier this month, the New Power Party said that based on an opinion poll it conducted on the referenda, 26.7 percent of respondents said they would vote “yes” to the questions proposed by the anti-same-sex-marriage groups, which was the highest among all referendum questions, save for the 56.5 percent of those who either had no clue or had no comment (the pro-same-sex-marriage proposals received only 13.1 percent). The numbers appeared to reflect social conservatism. Many respondents may have been won over by the “traditional family values” trumpeted by the anti-same-sex-marriage groups, and by the power of religious mobilization.

There is however a possibility that none of the questions will pass the threshold. Still, the number of ballots each camp garners could serve as an indicator of public sentiment, which politicians could not ignore without incurring political costs. The results of the referendums will therefore pose a great challenge to the government.

After the Constitutional Court ruling in May last year, the administration deferred final decision to a popular vote, which will likely boomerang. A political decision will have to be made after all, and it is very likely that neither camp will be able to reconcile their expectations with the government’s middle-ground approach.

 

Feature Photo Credit: Hsiang-wei Wang

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