Taiwan took a significant step toward becoming the first country in Asia to legalize same-sex marriage last week when its Cabinet introduced a draft bill that, if passed, will allow same-sex couples to marry.
The draft legislation, titled “The Enforcement Act of Judicial Yuan Interpretation No. 748,” has been crafted to abide by a May 2017 ruling by Taiwan’s highest court, which states that same-sex couples have a constitutional right to marry. The court had given Taiwanese lawmakers two years to pass legislation enforcing the ruling, in effect starting a clock that is now under three months from expiring.
The bill also complies with the results of a November 2018 slate of referendums – in which voters decided that Taiwan’s Civil Code should define marriage as being between a man and a woman – by creating a separate law governing same-sex unions rather than altering the Civil Code itself.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Taiwan’s LGBT+ advocates reacted to the draft bill with a mixture of cautious optimism and pointed criticism, saying the bill grants same-sex couples most but not all rights afforded to heterosexual couples under the Civil Code.
The bill must now make its way through Taiwan’s legislature, where is likely to face harsh criticism by lawmakers on all sides of a political debate that, after 22 months, is inching closer to a resolution.
What’s in the Bill – and What’s Missing?
The night before the draft bill was unveiled, Premier Su Tseng-chang took to Facebook to give an impassioned defense of the inalienable rights of same-sex couples to marry. “We belong to the same country regardless of whether you are heterosexual or homosexual,” the premier said in a statement published to his Facebook page.
The draft bill, in its current form, takes the crucial statement of explicitly allowing for same-sex “marriage” – an assertive step in a debate that centered around whether to use the term or a substitute, such as “civil unions.” The bill also addresses issues such as the medical and inheritance rights of same-sex partners.
Same-sex couples can adopt children but are restricted to adopting blood relatives, much to the chagrin of marriage equality advocates. The bill also fails to amend a Taiwanese law restricting in vitro fertilization (IVF) treatment to married women in heterosexual relationships.
Critics have also pointed out the draft bill’s lack of clarity on the recognition of transnational same-sex marriages. A union may be illegal in Taiwan if gay marriage is barred in the home countries of one or both partners.
Tsai Ching-hsiang, Taiwan’s justice minister, said the bill would be subject to further amendments as it does not comprehensively address adoption of non-biological children, IVF treatment, or transnational marriages. All three issues are currently governed by separate, existing Taiwanese laws, he said.
One change that can be expected is the inclusion of same-sex couples into Taiwan’s adultery laws. Deputy Minister of Justice Chen Ming-tang said the ministry is seeking to subject gay marriages to an existing section of Taiwan’s Criminal Code that makes adultery punishable by up to one year in prison.
Taiwan Hotline, a prominent LGBTQ activist group, said in a Facebook statement the bill “isn’t perfect” but acknowledged “the enormous pressure last year’s referendum put on the Executive Yuan” in abiding by the high court’s 2017 ruling.
The Coalition for the Happiness of the Next Generation, Taiwan’s most prominent opponent of same-sex marriage, said on Facebook the draft bill contradicts the results of the 2018 referendums. But Taiwan’s high court ruling supersedes the referendum result – and the draft bill, in its present form, has been carefully designed to fend off legal challenges from opponents of same-sex marriages.
What Comes Next?
However, this by no means guarantees the draft bill smooth sailing through Taiwan’s legislature.
The legislation is sure to face scrutiny from legislators opposed to the term “marriage” for same-sex couples, especially within the opposition Kuomintang (KMT), which won several key races in November’s regional elections.
The bill has attempted to insulate itself from moral objections to same-sex marriage by explicitly banning vices such as bestiality and incest – a method of addressing the concerns of opponents, possibly amplified by widespread misinformation prior to the November referendums.
The rollout of the draft bill does suggest that the ruling Democratic Progressive Party (DPP) has joined forces in supporting its passage. The DPP had long vacillated on introducing legislation to comply with the 2017 high court ruling, and pro-same sex marriage DPP legislators such as Yu Mei-nu were criticized by others within the party for their outspoken advocacy of marriage equality.
Voices within the LGBT+ community critical of the bill’s shortcomings have found an audience in the New Power Party (NPP), which introduced its own draft bill explicitly protecting rights unaddressed in the Cabinet’s bill, such as allowing for unrestricted adoption and assisted reproduction. NPP legislator Freddy Lim, who introduced the bill, pointed out that the Cabinet’s bill does not include the word “marriage” in its title – a nod to the sentiment that, despite its protections of same-sex unions, the Cabinet bill does not truly enshrine marriage equality.
There is still a wild card on the table: If the draft bill does not pass the legislature prior to May 24 – the deadline set by the high court – Taiwan’s judiciary may assert that same-sex marriages are legal in the absence of a legislative agreement.
Regardless of whether the Cabinet’s draft bill is passed – and in which final form it escapes the legislature – it appears that Taiwan’s LGBT+ community will score a victory but will have to continue its fight for full equality.