Taiwan made history on May 24, as same-sex couples were legally allowed to register their marriages for the first time in Asia.
The continent’s first legally recognized marriages come one week after Taiwan’s legislature passed Asia’s first law allowing same-sex couples to marry – the culmination of a two-year process that began in May 2017 with a historic high court ruling that barring same-sex couples from marrying violated Taiwan’s constitution.
Taiwan’s high court had given its legislature two years to enact a law legalizing gay marriage, after which the country’s laws barring same-sex unions would have been automatically removed. However, a strong current of conservative opposition – including a November 2018 referendum in which Taiwanese voters voted in favor of defining marriage in Taiwan’s Civil Code as being between a man and a woman – played a role in what became a long and messy process. The end result was what many gay rights advocates still consider a compromise bill.
The new law is titled the Enforcement Act of Judicial Yuan Interpretation No. 748 – a direct reference to the legislature’s duty to enforce the court ruling. In a crafty political maneuver, Taiwan’s cabinet, which introduced the legislation, designed the bill to comply both with the court ruling and the November 2018 referendum by regulating same-sex marriages with a separate law from Taiwan’s Civil Code.
The law, which was signed by President Tsai Ing-wen on May 22, explicitly allows same-sex couples to join “exclusive permanent unions” and apply for “marriage registration” – avoiding the term “same-sex marriage” while granting same-sex couples many of the marriage benefits enjoyed by heterosexual couples. The decision to eliminate the term “same-sex marriage” from the bill, which was announced just hours before legislators voted on its articles, has already led to speculation that the new law could further extend legal marriage rights. (Taiwan plans to offer a third gender option on national ID documents for transgender people starting in 2020, and has long mulled allowing transgender people to change their legal gender without first undergoing surgery.)
However, there are limitations to the marriage rights of same-sex couples in Taiwan, which have left gay rights advocates hesitant to call the bill a win for true marriage equality.
Same-sex partners received limited adoption and child custody rights, but a push to receive the same adoption rights as male-female couples failed to pass. Taiwan’s new law allows same-sex couples to adopt the biological child of one of the two partners, but it does not allow for the adoption of a child who is not a blood relative. One partner in a same-sex couple may adopt a child to whom they are not related, but both parents cannot share full custody of the child.
The new law also prohibits the registration of marriages in which at least one partner is from a country that does not legally permit gay marriage. Last Friday, the New Power Party (NPP), Taiwan’s most prominent “third force” party, introduced an amendment that would allow couples from anywhere in the world to register their marriages in Taiwan. The measure failed 84-6, with the only “yes” votes coming from the five NPP lawmakers and Kuomintang (KMT) legislator Jason Hsu.
This restriction on foreign couples persists due to existing Taiwanese law governing civil matters involving foreigners, which states that “the formation of a marriage is governed by the national law of each party.” This ostensibly applies to all nationals residing outside of Taiwan, but one judge has raised the intriguing question of how Taiwan will govern nationals residing within areas claimed by the Republic of China (ROC) – including the People’s Republic of China (PRC), home to its own burgeoning LGBT+ community.
On Monday, Miaoli District Court Judge Liu Yi-lang said same-sex marriages between PRC and Taiwanese nationals would be recognized under Taiwan’s new law, according to the Chinese-language Apple Daily. But Taiwan’s Ministry of the Interior has said it will not presently allow for marriages to be registered between Taiwanese and PRC nationals – in the PRC, along with Hong Kong and Macau, same-sex marriage remains illegal.
Aside from those territories, the ROC still constitutionally claims the entirety of Mongolia, Tibet, parts of Russia, most of the Tajik autonomous province of Gomo-Badakhstan, most of India’s Arunchal Pradesh, and parts of Myanmar, Pakistan, and Bhutan, among others. (Taiwan now maintains friendly relations with many of these countries and, in 2017, dissolved its Mongolian and Tibetan Affairs Commission.)
Any decision on which non-Taiwanese nationals should be treated under their own “national law” will likely come down to Taiwan’s courts. At present, Taiwan’s newlywed same-sex couples will enjoy many of the same benefits afforded to heterosexual couples – but not all of them. Gay rights campaigners are certain to continue their push for full marriage equality in Taiwan, even as today’s unions represent a historic step forward.