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.
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.”
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.
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.
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.
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 declared that “democracy is dead.”
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.
“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.