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Explainer: Why has same-sex marriage legislation in Taiwan stalled?

Last May, Taiwan’s top court ruled that preventing same-sex marriage was unconstitutional. It gave the government two years to either amend current laws or introduce new legislation to bring about marriage equality. The landmark decision paved the way for the island to become the first country in Asia to legalise gay marriage. But a year down the line, progress has stalled. 

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File photo: Marriage Equality Platform via Facebook.

An attempt to derail the move in August by anti-gay marriage group Happiness of the Next Generation Alliance stymied efforts to push through legislation. With pressure mounting as the two-year mark draws closer, what challenges lie ahead in the campaign for marriage equality?


1. Common consensus

The government’s attempt to reach a common consensus and balance the interests of society has proven tough since a vocal anti-gay marriage campaign continues to vehemently oppose attempts to legalise same-sex marriage. With local elections set to take place next month, legislators are unlikely to take a stance on a divisive topic that could upset voters. As such, a same-sex marriage bill may not be passed until next year.

President Tsai Ing-wen previously advocated for same-sex marriage during her election campaign in 2016, but her failure to show support since has disappointed the LGBT+ community. Tsai said in an interview in June that she remained non-committal to delivering marriage equality, citing fears of creating division between generations and implying that those above the age of 40 are against same-sex marriage.

Tsai Ing-wen

Tsai Ing-wen. Photo: TaiwanGov.

LGBT+ rights in Taiwan - click to view.
Taiwan has some of the most progressive LGBT+ rights in Asia. The island-nation of 23.5 million hosts the largest annual gay pride parade in the region, attracting over 120,000 participants last year. The government has also enacted several anti-discrimination measures to protect members of LGBT+ communities. This includes a ban in 2008 on workplace discrimination based on sexual orientation and the introduction of LGBT+ topics to school curriculums in 2010.

However, same-sex couples cannot legally adopt a child and a parent has no legal rights over the biological child of their partner. The legalisation of same-sex marriage could change this.

Previous attempts to push same-sex marriage legislation through parliament, known as the Legislative Yuan, have failed – in 2005, a legislator had her bill submission blocked while, in 2016, a bill introduced by the ruling Democratic Progressive Party failed to take off after being met with fierce opposition.

2. Amend current law vs. new legislation

The top court’s ruling gives the government until May 2019 to amend existing laws or pass new legislation on same-sex marriage. According to its judgement, same-sex marriage will automatically become legal after two years, sparking fears over potential administrative problems in the event of the legalisation of same-sex marriage without comprehensive laws in place to handle the influx of marriage registrations.

How the top court made its ruling - click to view.
Veteran gay rights activist Chi Chia-wei petitioned the Council of Grand Justices to examine the constitutionality of denying same-sex marriage in 2015.

The top court used Article 7 of its Constitution, which stipulates that “all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law,” to justify its constitutional interpretation in favour of same-sex marriage last May. It also ruled that the freedom of marriage guaranteed by Article 22, which states that “all other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution,” applied to people of all sexual orientations.

Authorities have struggled to reach an agreement across party lines over whether to amend the Civil Code or introduce separate legislation. According to PrideWatch, 59 of 113 legislators are on record as supporting same-sex marriage, six support the introduction of a separate law, 29 have refused to declare, and nine oppose marriage equality altogether.

What is the Civil Code? - click to view
Enacted in 1929, the Civil Code is one of five main laws in addition to the Constitution that makes up the law of the Republic of China. It is the basic law for most civil and commercial issues involving private relations between parties, covering areas such as property and family law.

The Civil Code contains over 498 provisions that stipulate the rights of legal spouses, including adoption rights, inheritance and welfare benefits. LGBT+ rights groups believe that amending the gendered language of the Civil Code to include same-sex couples would grant them the same rights enjoyed by opposite-sex couples; anything else would contravene “the people’s right to equality” as said in the ruling last May.

Others argue that a separate law that guarantees homosexual couples the same rights and benefits as heterosexual ones would meet both sides in the middle.

3. Conservative opposition

Last Tuesday, three referendum proposals put forward by a coalition of conservative groups advocating “family values” were approved by Taiwan’s Central Election Commission (CEC). The referendums aim to push back against marriage equality and same-sex education in schools nationwide, which has been mandatory since the Gender Equity Education Act was passed in 2004. In Taiwan, the results of a referendum are bound by law.

As it stands, three out of the seven referendums scheduled for November 24 – the day of the local elections – relate to same-sex marriage. The questions include:

  • “Do you agree that Civil Code regulations should restrict marriage to being between a man and a woman?”;
  • “Do you agree to types of unions, other than those stated in the marriage regulations in the Civil Code, to protect the rights of same-sex couples who live together permanently?”; and
  • “Do you agree that the Ministry of Education and individual schools should not teach homosexual-related education, as detailed under the Enforcement Rules for the Gender Equity Education Act, in elementary and middle-level schools?”

LGBT+ rights groups, however, have said that the referendum proposals infringe upon their right to the freedom of marriage, as outlined by the court. A referendum could, in turn, result in a separate law that fails to deliver what rights group consider true equality.

Last Friday, two referendum proposals put forward by pro-marriage equality groups passed the minimum 281,745 threshold for signatures required by the CEC. They include:

  • “Do you agree that gender equity education as defined in ‘the Gender Equity Education Act’ should be taught at all stages of the national curriculum and that such education should cover courses on emotional education, sex education and gay and lesbian education?”; and
  • “Do you agree that the Civil Code marriage regulations should be used to guarantee the rights of same-sex couples to get married?”

Update: the CEC approved the two pro-LGBT+ referendum proposals on Tuesday, bringing the total number of referendums to be held on November 24 to nine.

Explainer: Why has same-sex marriage legislation in Taiwan stalled?