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. 2: Building Tolerance and Inclusiveness: An NGO Conversation with 2018 ADHRA Laureate Gusdurian Network Indonesia

TDB Vol. 3 No. 2: Building Tolerance and Inclusiveness: An NGO Conversation with 2018 ADHRA Laureate Gusdurian Network Indonesia

Three leaders talk about the importance of building a culture of communication to counter intolerance, conservatism and radicalism. Olivia Yang reports.

“Justice will never be an accomplished state. As long as there are individuals and people on this earth, there would always be conflicts. Justice and a world equal for all will always be an elusive state. But humanity progresses. It is almost like a dance as old as time. Two steps ahead, one step back. Sometimes one step ahead and two steps back.”

Thus spoke Alissa Wahid at the 2018 Asia Democracy and Human Rights Award (ADHRA) ceremony in Taipei on Dec. 10, 2018.

Wahid is the founder and national coordinator for the Gusdurian Network Indonesia (GNI), laureate of the 13th ADHRA. The non-governmental organization is currently one of Indonesia’s leading groups combating radicalism and defending those who are discriminated against due to religious and minority suppression.

Established in 2010, the GNI is named after late Indonesian President K.H. Abdurahman Wahid, who was also known colloquially in Indonesia as “Gus Dur.” President Wahid was the first democratically elected president in Indonesia and had strived to promote interfaith dialogue and multiculturalism. His work became an inspiration for many Indonesians, also called “Gusdurians,” even after his death in 2009. The GNI was founded after his passing to encourage and consolidate interaction among Gusdurians, and further promote Gus Dur’s advocacy for minority rights, religious freedom and tolerance.

The main challenges in Indonesia today are religious populism, “hate spins,” radicalism and violent extremism, said Ms. Wahid. This is where the GNI comes in, as the arena for people from all backgrounds to work together as a democracy, especially at a time when the space for human rights activists is becoming gradually restrictive.

“‘God needs no defense,’ Gus Dur used to say. But now we see how God and religion are capitalized to gain political power, to discriminate [against] others, to do injustices. And when done in the name of God, how powerful. So this is [what] we currently focus on,” Wahid said in her acceptance speech.

Reverend Lazarus Chen (陳思豪) of the Koteng Presbyterian Church in Taiwan echoed similar concerns during a conversation with Wahid.

Chen is one of the religious leaders who have publicly supported marriage equality, especially during the lead-up to Taiwan’s referendum on the issue late last year.

Taiwan’s Constitutional Court on May 24, 2017, ruled that Taiwan’s Civil Code violates the Constitution’s guarantees of freedom of marriage and people’s equality. It gave the Taiwanese government two years to amend the law or pass new legislation to legalize same-sex unions.

In the local elections last November, a total of five referendum motions regarding LGBTQI rights were put on the ballot. Three of the motions aimed to refuse same-sex marriage under the Civil Code and ban LGBTQI education in schools. All three motions were approved in the referenda, while the other two pro-LGBTQI rights motions were not.

In the conversation with Wahid, Chen lamented the fear-mongering in Taiwan’s recent anti-same-sex-marriage campaign. According to him, most Christians in Taiwan believe that the Bible claims that homosexuality is a sin and therefore they do not support same-sex marriage. The results of the referenda, the reverend said, were “manipulated by Christians in Taiwan.”

“They use any kind of resource, including spreading disinformation, to influence and frighten the people in Taiwan to refuse same-sex marriage,” he said.

But he also pointed out that Christians only account for 6 percent of the island-nation’s population and called for non-Christian Taiwanese to “not be led by the few vicious Christians.” The reverend then stressed the importance of building a culture of debate and communication in Taiwan.

Wahid emphasized the value of dialogue, adding that although initiating theological conversations on LGBTQI issues in Indonesia is still very challenging — dangerous, even — “it has to start somewhere.”

“I think GNI is the only group that would put a transgender speaker in front of people on a stage, said Wahid. “But it takes a lot of work.”

The GNI national coordinator also emphasized the importance of staying close to those who hold different opinions and not treating them “as enemies because we need to influence them to have different perspectives.”

While working to enhance communication between groups that hold different values, Taiwan also strives to build tolerance toward Southeast Asian migrant workers, who currently account for nearly 700,000 of the country’s population.

Chang Cheng (張正), also a speaker at the conversation with Wahid, works to resolve the discrimination between Southeast Asians and Taiwanese through his Southeast Asia-themed bookstore, Brilliant Time Bookstore.

The bookstore runs a program called, “Bring Back A Book that You Cannot Read.” It encourages Taiwanese who travel to Southeast Asian countries to return with a book which is then given to migrant workers or spouses in Taiwan. This gives Taiwanese an opportunity to show kindness towards the migrant workers, said Chang. In addition to the program, the bookstore hosts around 30 talks each year on Southeast Asia topics to help the Taiwanese people learn more about the region and its cultures.

Chang also launched the Taiwan Literature Award for Migrants in 2014 with a goal to give and facilitate the Taiwan society in learning more about them. The first prize for the literature award is NT$100,000 (US$3,200), and last year, the award also received submissions from migrant workers in Hong Kong, Macau, Malaysia and Singapore. Chang said they are expecting to expand to South Korea and Japan this year.

“If we learn more about them, discrimination will be less,” said Chang. “In the dark, it is everyone’s duty to hold the torch.”

Reverend Lazarus Chen, Chang Cheng, Alissa Wahid, and moderator Taiwan Foundation for Democracy Vice President Ketty W. Chen (left to right). Photo Credit: Taiwan Foundation for Democracy

 

Feature photo: 2018 Asia Democracy and Human Rights Award Recipient Gusdurian Network Indonesia National Coordinator Alissa Wahid. Photo Credit: 黃謙賢/Taiwan Foundation for Democracy

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

TDB Vol. 1 No. 16: Taiwan’s LGBTQ Culture Thriving Despite Conservative Challenge

TDB Vol. 1 No. 16: Taiwan’s LGBTQ Culture Thriving Despite Conservative Challenge

Various NGOs and members of the artistic community are turning Taiwan into a leader on gender equality and gay rights, using activism, workshops and visual arts to raise awareness and reach out to a region where some backsliding has been observed. Olivia Yang reports.

 

Taiwan LGBT Pride, the largest gay pride parade in Asia, was held on Oct. 28, drawing a record 110,000 participants from around the region through the streets of Taipei for a day of concerts and festivities.

In its 15th year, the annual parade started out on Ketagalan Boulevard in front of the Presidential Office in Taipei. Three groups — including one led by the representative offices of 19 countries — marched through northern, western and southern Taipei before returning to the popular plaza for an evening concert.

Thousands march down Zhongshan Road on their way to Ketagalan Boulevard. An estimated 110,000 people took part in this year’s LGBT Pride Parade in Taipei on Oct. 28 (Photo: J. Michael Cole)

Representatives from foreign diplomatic missions in Taiwan took part in the LGBT Pride Parade in Taipei on Oct. 28. Many of them distributed flags and paraphernalia celebrating their country’s embrace of gay rights (Photo: J. Michael Cole)

Everyday people, young and old, as well as extravagant floats and revellers in flamboyant costumes and rainbow accessories of all kinds paraded to this year’s theme, “Make Love, Not War — Sex Ed is the Way to Go.” The focus on gender equality education was chosen in response to anti-gay marriage groups ramping up the pressure after Taiwan’s Council of Grand Justices on May 24 ruled in favor of same-sex marriage.

The landmark ruling has paved the way for Taiwan to become the first country in Asia to legalize same-sex unions. The Grand Justices said Taiwan’s Civil Code, which currently states that an agreement to marry can only be made between a man and a woman, “violates” the Constitution’s guarantees of freedom of marriage and people’s equality. It ordered the Taiwanese government amend the law within two years, adding that should it fail to do so, same-sex couples could get married regardless.

While Taiwan positions itself as one of the most progressive countries on LGBTQ issues in Asia, the region has hardly made any headway on the subject, with some countries even regressing in recent years. Laws and taboos that inhibit people from expressing their sexual orientation continue to exist in various Asian countries: Indonesia has imposed a nationwide crackdown on the community, and many in countries like the Philippines, Singapore and Malaysia still face discrimination, sometimes even violence.

Despite the progress, Taiwan has also experienced pushback, primarily from conservative Christian groups.

In response to this phenomenon, the Taiwan Tongzhi Hotline Association, a gay rights organization, held a workshop on Oct. 27 which brought together nearly 50 LGBTQ activists from Taiwan, Japan, and South Korea to discuss the influence of conservative groups on LGBTQ movements in those countries. The three nations have met resistance from conservative powers in implementing laws and regulations related to LGBTQ rights.

 

A number of Evangelical Christian churches and other conservative groups are behind the anti-gay rights and anti-sex ed movement in Taiwan. Their recent attempt to unseat New Power Party (NPP) Executive Chairman and legislator Huang Kuo-chang — an active supporter of same-sex marriage — is an example of the group’s efforts to pressure the government against implementing marriage equality.

Answering with art

Despite the conservative influences, Taiwan’s LGBTQ culture continues to flourish and to lead the discussions on LGBTQ rights in Asia.

Besides the annual pride parade, the Taipei Museum of Contemporary Art (MOCA) is currently featuring the first major survey of LGBTQ art in Asia. The group exhibition, “Spectrosynthesis: Asian LGBTQ Issues and Art Now,” is exhibiting 22 artists from Taiwan, Hong Kong, Singapore, and China, as well as Chinese-American artists based in North America.

The show features 51 works created over the past century. The pieces range from interactive light boxes and videos to photography and paintings. The exhibition aims to generate more discussion about the diversity of human social values and further advance human rights in Taiwan and other Asian societies.

“Man Hole,” by Hou Ching-Ming (Photo: Olivia Yang)

Jun-Jieh Wang’s “Passion” (Photo: Olivia Yang)

In the past, public museums in Taiwan have also held exhibitions exploring gender identity, such as the “Your Closed Eyes My Extinction” exhibition at the National Taiwan Museum of Fine Arts in 2015, and “SEE THROUGH, exhibition against Homophobia, Transphobia and Biphobia” at the Huashan 1914 Creative Park earlier this year.

The local film industry has also been making waves on the international LGBTQ scene. In its fourth year, the Taiwan International Queer Film Festival (TIQFF) opened on Oct. 20, offering screenings of 53 films in Taipei, Taichung, and Kaohsiung.

This year, Taiwanese film director Huang Hui-chen won Taiwan’s first Teddy Award at the Berlinale — an official award given by the Berlin-based festival for films with LGBTQ topics — for her documentary “Small Talk”; film director Wang Yu-lin just returned from the 30th Tokyo International Film Festival with his latest film “Alifu, The Prince/ss,” which explores the conflict between gender identity and local indigenous traditions; and film director Zero Chou is working on her latest project, Six Asian Cities Rainbow Project (亞洲六城彩虹計劃, unofficial English translation) — a series of six films about LGBTQ issues shot in six different cities across Asia.

TDB Vol. 1 No. 14: Illiberal Forces Push Back in Taiwan

TDB Vol. 1 No. 14: Illiberal Forces Push Back in Taiwan

Movements that are driven by a conservative ideology are joining hands to block various progressive efforts by the government in Taiwan. Using threats, violence, disinformation and even democratic instruments, these groups seek to intimidate civilians and elected officials in the pursuit of their objectives. J. Michael Cole looks into the latest developments.

 

Violence-prone groups that advocate unification with China, a movement that opposes the Tsai Ing-wen government’s pension reform program and religious organizations that are dead set against the legalization of same-sex marriage (and homosexuality in general) have come together and formed a loose coalition in recent months, using tactics that go against the progressive momentum that has animated Taiwanese society in recent years.

Though more alliance of convenience than an actual structured organization, the three movements have joined ranks to push back against what many regard as progress, and have had no compunction in resorting to threats and violence to punish, intimidate and silence their ideological opponents. Left unchecked, these activities will contribute to greater social instability and undermine the nation’s democratic institutions.

Violence and threats

A handful of groups have resorted to physical violence, and the threat thereof, in recent months. Led by Chang An-le’s (aka “White Wolf”) China Unification Promotion Party (CUPP) and its ideological ally, the Concentric Patriot Association (CPA), these groups have repeatedly attacked protesters and students at various venues, most recently during the aborted “Sing! China: Shanghai-Taipei Music Festival.” The CUPP and CPA are believed to be working alongside Chinese triads, chief among them the Bamboo Union and the Four Seas Gang.

Besides their involvement in violent altercations during the Sunflower Movement in 2014, the groups have been linked to assaults targeting members of the Falun Gong and young pro-democracy activists from Hong Kong (interestingly, Philippine President Rodrigo Duterte alleged recently that the Bamboo Union  is behind the proliferation of the drug trade in his country). Moreover, the CUPP has been present at protests against pension reform and has collaborated with the Blue Sky Alliance, a violence-prone organization that is suspected of involvement in physical assaults against elected officials outside the Legislative Yuan in Taipei earlier this year. Anti-pension reform groups were also behind the disruptions during the opening ceremonies of the 2017 Summer Universiade in Taipei last month. The Blue Sky Alliance also added its own threats against students after the concert incident.

Following the controversy surrounding the “Sing! China: Shanghai-Taipei Music Festival,” which has been regarded as a United Front effort by the Chinese, numerous Taiwanese activists have reported receiving threatening messages on social media. In at least one instance, a message made a direct reference to a knife attack. The spouse of Yao Li-ming, a vocal talk show personality, has also received threats, cautioning her to be “careful” next time she visits the market. Given precedent in China and Hong Kong, such threats should not be taken lightly and require proper investigation by the authorities, which in the past week have launched a series of raids against locations associated with the Bamboo Union (although he denies it, Chang, who served a decade in U.S. prison for drug trafficking, is widely suspected of being associated with the group).

Chang An-le, aka “White Wolf,” speaks to reporters during a protest outside DPP headquarters in Taipei (Photo: J. Michael Cole)

Young activists, including former Sunflower Movement leader Chen Wei-ting (now a legislative aide), have also been threatened with lawsuits for exposing links between concert organizers and UFW groups back in China. “Lawfare,” as the tactic is sometimes referred to, has been used with greater frequency by Chinese companies and organizations in recent months to silence and intimidate investigative journalists and academics.

The atmosphere of fear that is generated by the use and threat of violence is anathema to the inherent liberties in a democratic system, where different opinions should be aired without fear of reprisal. Involvement by crime syndicates, which have access to weapons, adds a layer of apprehension among people who advocate for their country and a progressive, liberal-democratic way of life.

Although the tolerance of pro-unification parties like the CUPP is a clear manifestation of Taiwan’s political maturity and democratic openness, such permissiveness ought to have its limits. If a registered political party ceases to act like one; if it intermingles with organized crime; if it infiltrates and co-opts grassroots organizations (trade groups, temples); if its head is, as he claims, collaborating with the State Council’s Taiwan Affairs Office (or one of its subsidiaries tasked with “turning” criminals and using them to further unificationist objectives); and if, as is suspected, it receives illegal funding (possibly from a foreign and hostile government), then its rights as a party should be annulled and the CUPP should be written off as an entity that operates outside the system. In other words, unless its leaders agree to abide by the democratic rules of the game that define Taiwanese politics, the CUPP should be barred from participating in elections or engaging in other forms of activities that are the remit of law-abiding political parties.

Using democracy against itself

Meanwhile, the Greater Taipei Stability Power Alliance, an alliance created to oppose the legalization of same-sex marriage in Taiwan, is reportedly within a hair’s breadth of collecting enough signatures — 25,119 — to launch a recall vote against Huang Kuo-chang, the executive chairman of the New Power Party (NPP). Huang, whose NPP emerged from the Sunflower Movement and is well regarded by young progressive Taiwanese, has openly supported same-sex marriage and pension reform. A count on Oct. 6 will determine whether all the signatures gathered are valid. Should the attempt succeed, Huang could be removed despite not having committed a crime or been involved in irregularities; his removal would be the result of conservative/religious groups who cannot countenance a society that operates outside the confines of a literal and often self-serving interpretation of a religious text that guides no more than 5% of the total population of Taiwan.

The Greater Taipei Stability Power Alliance, which has initiated the attempted recall campaign against Huang, is a close ally of the Faith and Hope League party, which itself serves as an umbrella for various highly conservative Evangelical churches across Taiwan that have actively opposed same-sex marriage and which are generally anti-gay and against sex ed in school. The groups are also known to have been collaborating with MassResistance, a U.S.-based organization that promotes conservative values and that has been described as a “hate group.” Using disinformation and a fear campaign on social media to win over adherents to their cause, other religious groups (including Presbyterians) have threatened similar punitive action against politicians who support same-sex marriage, including the Democratic Progressive Party’s Wang Ting-yu in Tainan.

Opponents of same-sex marriage in Taiwan predict doom and gloom during a rally outside the Legislative Yuan in Taipei on Nov. 17, 2016 (Photo: J. Michael Cole)

National Civil Servant Association president Harry Lee, who has spearheaded opposition to pension reform, has also thrown his support for the Greater Taipei Stability Power Alliance, thus merging opposition to same-sex marriage and pension reform, two issues that enjoy majority support with the Taiwanese public (more than 80% of young Taiwanese support the legalization of same-sex marriage). The CUPP’s Chang An-le is also known to have taken part in activities (including a panel) organized by anti-gay groups in Taiwan.

United in their opposition to progressive ideas, the alliance of convenience that has recently emerged in Taiwan threatens to serve as a force multiplier whereby the anti-liberal-democratic tactics used by one group exacerbate the efforts of other groups, however unrelated their causes. The involvement of pro-Chinese Communist Party, violence-prone and ostensibly triad-related groups in those movements adds a worrying variable to the mix and compounds the resulting instability.

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

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

Although the ruling by the Council of Grand Justices fails to resolve the dilemma between amending the Civil Code or enacting of a special act, many of the reasons listed by the judges to support their ruling indicate that the judicial system is on the side of progressive social values. Stacy Hsu reports.

 

A large crowd of gay marriage supporters standing anxiously outside the Legislative Yuan on May 24 cheered after Taiwan’s Council of Grand Justices ruled in an unprecedented move that the Civil Code’s prohibition of same-sex marriage is unconstitutional and demanded the law be amended within two years.

The ruling, titled Interpretation No. 748, states that the Civil Code, which currently prevents two individuals of the same gender from creating a permanent union for the committed purpose of managing a life together, is in violation of people’s constitutionally protected freedom of marriage and right to equality.

Article 972 of the Civil Code stipulates that an agreement to marry shall be made by “the male and the female parties” in their own concord.

The ruling accordingly urges concerned authorities to amend or enact laws within two years in accordance with the Interpretation, but allows them to decide in what manner they intend to achieve the equal protection of the freedom of marriage.

As the Interpretation enables homosexual couples to register their marriage should the authorities fail to complete relevant law amendments within the given timeframe, it could pave the way for Taiwan to become the first Asian country to legalize same-sex marriage.

The constitutional interpretation was issued in response to separate requests filed by the Taipei City Government and gay rights advocate Chi Chia-wei (祁家威) in 2015. Chi has sought legal recognition of his union with his partner in the past three decades. His latest attempt, in 2013, was dismissed by the Supreme Administrative Court in September 2014, prompting his request for an interpretation.

Gay rights advocate Chi Chia-wei, who initiated the appeal to the Council of Grand Justices, waves the rainbow flag during the 2016 LGBT Pride parade in Taipei (photo: J. Michael Cole)

The case has attracted tremendous attention both at home and overseas since the Council of Grand Justices held a closely watched hearing on same-sex marriage on March 24 this year.

Supporters of homosexual unions staked their hopes on the Interpretation after the Democratic Progressive Party (DPP) administration gave signs it was stalling efforts to legalize same-sex marriage in the Legislative Yuan due to pressure from religious and conservative groups.

Several amendments to the Civil Code to recognize same-sex marriage cleared a legislative committee in late December 2016, but they have yet to be put on the agenda for a plenary review.

The Grand Justices stated that allowing same-sex marriage would not only not affect the rights afforded to heterosexual couples by the Civil Code or alter the existing “social order,” but could also constitute the collective basis for a stable society, as the need and longing to create a permanent, committed union are equally essential to both homosexual and heterosexual individuals.

The delays were also partly due to divided opinions among lawmakers, even within the DPP, on whether to recognize homosexual marriage by amending the Civil Code — which is deemed by conservative opponents as detrimental to the traditional family structure — or enacting a special law, which has been criticized by lesbian, gay, bisexual and transgender (LGBT) groups as discriminatory.

Although Interpretation No. 748 fails to solve the dilemma between amendment of the Civil Code and enactment of a special act, many of the reasons listed by the Grand Justices to support their ruling today indicate that the judicial system is on the side of progressive social values.

The Grand Justices stated that allowing same-sex marriage would not only not affect the rights afforded to heterosexual couples by the Civil Code or alter the existing “social order,” but could also constitute the collective basis for a stable society, as the need and longing to create a permanent, committed union are equally essential to both homosexual and heterosexual individuals.

The ruling also refutes the myth that homosexuality is reversible, arguing that sexual orientation is an immutable characteristic decided by many contributing factors and that homosexuality is not a disease.

Another argument frequently cited by opponents to same-sex marriage was also dismissed by the Interpretation. It stipulates that since the Civil Code does not make the ability to procreate a prerequisite for a heterosexual marriage, reproduction should not be seen as an essential element of marriage nor used as an excuse to deny homosexual couples their right to marry.

So far the ruling has met with vastly different reactions. Opponents of same-sex marriage have threatened to request another constitutional interpretation or to take the case to the Control Yuan for an investigation, while supporters have expressed their pride in “being Taiwanese.”

Both the Presidential Office and Legislative Yuan Speaker Su Jia-chyuan (蘇嘉全) said they respected the Interpretation, pledging to handle future legislative efforts with a tolerant and understanding attitude. However, as lawmakers from different parties remain divided on how to legalize same-sex marriage following the ruling, the road to achieving marriage equality in Taiwan may still be bumpy.

 

Top photo: J. Michael Cole

TDB Vol. 1 No. 4: Trends in physical violence and assaults on the press

TDB Vol. 1 No. 4: Trends in physical violence and assaults on the press

Physical violence and denial of access to members of the press are two tactics that have been used with alarming frequency in recent months by civic groups bent on blocking legislation proposed by the ruling Democratic Progressive Party. J. Michael Cole reports.

 

Same-sex marriage and pension reform are two pieces of legislation that have resulted in escalatory action since late 2016 by civic organizations. In the former case, conservative Christian organizations have spearheaded efforts to block a marriage equality bill; in the latter, retired personnel, as well as organizations such as the Blue Sky Alliance, have led the movement. While marginal, the Alliance has a track record of disruptive behavior and physical violence against officials.

As a result of the spiralling unrest, rather than be debated rationally the complex issues have become politicized, giving rise to a spectacle of emotions, crass party politics, divisiveness and disruptiveness. While passing off as normal civil society and purportedly emulating the student-led Sunflower Movement of 2014, the opposition groups are discrediting Taiwan’s democracy and undermine government institutions in the pursuit of goals that do not enjoy majority support across society and which tend to be diametrically opposed to the aspirations of younger generations.

More than 80% of young people in Taiwan support same-sex marriage; a majority of young people, meanwhile, support measures that will ensure the viability and sustainability of the pension system, which under current rules and after decades of abuse threaten to break the state coffers in the not-too-distant future.

Furthermore, the two groups mentioned above have taken actions that would have been inconceivable to the young members of the Sunflower Movement and groups associated with it, primarily violence against individuals and the systematic targeting of members of the press. Alarmingly, both trends have accelerated in recent months.

On several occasions since late last year, members of the LGBTQ community have been physically assaulted by groups opposed to same-sex marriage; in a few cases the assaults resulted in minor injuries. The use of violence against elected officials from the Tsai administration, as well as DPP legislators, has also become more frequent, with several incidents occurring outside the Legislative Yuan in Taipei this morning (April 19). Despite a police presence at the scene — clearly insufficient and often disorganized — a number of officials were grabbed at, pushed, or body-slammed; Deputy Taipei Mayor Charles Lin was pushed against a police fence, injuring his hand; another (Tainan City Councilor Wang Ding-yu) was repeatedly pushed and had a water bottle thrown at his face. New Power Party (NPP) Legislator Hsu Yung-ming was also pushed and splashed with water.

On an evening talk show on SET-TV, a convener of the Changhua Military Civil Servants and Teachers Association argued that “DPP rhetoric” had made them “very emotional” and that they could not be held responsible if they “killed someone.” Worryingly, this was not the first time that a member of groups opposed to pension reform referred to “killing.” In an earlier protest, someone argued (arguably in the heat of the moment) that President Tsai herself should be killed.

According to Wang, the protest groups may have been infiltrated by Chinese trouble makers. There is also a possibility that members of crime syndicates, many of them pro-China, are also playing a role in the protests, not so much out of interest in the policies but simply to undermine democracy and destabilize the Tsai administration. With more radical elements highjacking the movement, the grievances of the more moderate members of society who stand to be affected by pension reforms, and who understandably will seek to lose as little as possible in the bargain, risk being lost in the noise.

During the April 19 protest, which also spilled to the DPP headquarters, several members of the press reported being denied access to the venue. Protesters routinely asked journalists to see their press pass; media that were deemed to be too closely associated with the green camp (DPP and NPP) were surrounded by protesters and ordered to leave the scene; pro-China media, meanwhile, were left alone. The windshield of a SET-TV news vehicle was also smashed with a hammer. (During the Sunflower occupation, a journalist from the China Times Group was heckled by protesters but was never prevented from doing her work; criticism of the incident ensured this did not happen again.)

Photo: Yahoo News

Similar disruptive actions against members of the press (also mainly pro-green camp media) have occurred during protests organized by opponents of same-sex marriage legislation since 2016.

Both controversies have undermined democratic mechanisms and tarnished Taiwan’s image, which for some protesters appears to be the intended outcome. Shortcomings in personal protection for elected officials by law enforcement agencies, as well as failure to arrest and prosecute protesters for physical assault, have also contributed to repetition and escalation. Police’s unwillingness to ensure that members of the press have full access to protest sites and can carry out their work without interference has also created a hostile environment for journalists.

(Top photo: Match.net.tw)

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