Wen-hui Anna Tang (唐文慧) and Emma J. Teng analyze the legal and international context of Taiwan’s approval of same-sex marriage.
On May 17, 2019, Taiwan broke yet another record in becoming the first to legalize same-sex marriage in Asia, leaving little doubt that the “Taiwan Miracle” has gone beyond the “economic miracle” and “political miracle” to encompass a “gender miracle.”
With a female president at the helm, and gay marriage legislation set to take effect on May 24, 2019, Taiwan is a leader in the region on gender and sexuality issues across various dimensions. In selecting the symbolic day of May 17, the “International Day against Homophobia, Transphobia, and Biphobia,” to pass the historic Enforcement Act of Judicial Yuan Interpretation №748, Taiwanese legislators followed in the wake of France, which announced its decision to legalize same-sex marriage on May 17, 2013.
This legislative action was thus not simply a major step forward for diversity and inclusion in Taiwan, but also a signal of the island’s connection to a global movement for social justice. The Enforcement Act grants same-sex married couples virtually all the same rights as heterosexual married couples under Taiwan’s Civil Code, with important exceptions with regard to international marriage and adoption.
The passage of this groundbreaking bill for marriage equality must be regarded as the culmination of decades of LGBTQ+ activism in Taiwan and the widespread support of allies across a broad spectrum. It was also more directly an outcome of a ruling by Taiwan’s Constitutional Court two years ago that the existing law defining marriage as a union between a man and woman is unconstitutional. The court gave legislators a window of two years — until May 24, 2019 — to revise the law or enact a new one.
The new law was not without its opponents, of course, chief among them the church and social conservatives. Indeed, a referendum conducted in November 2018 showed conservative forces taking the lead with 67% voting against the legalization of same-sex marriage.
The heated debates over this issue resonated with those seen elsewhere (France saw major public demonstrations against same-sex marriage bills in 2012 and 2013), but the contestation also revealed much about the complex political and social forces struggling for ascendancy in democratic Taiwan.
As Harvard-Yenching scholar Ming-sho Ho argued in his article, “Taiwan’s Road to Marriage Equality: Politics of Legalizing Same-sex Marriage” (December 2018), the success of the LGBTQ+ movement in Taiwan cannot be explained by cultural proclivity, public opinion, and linkages to world society alone. Ho adopts a “political process” explanation instead, examining how changes in Taiwan’s political context facilitated the movement for marriage equality. He demonstrated that:
“electoral system reform in 2008, the eruption of the Sunflower Movement in 2014, and the electoral victory of the Democratic Progressive Party in 2016, stimulated Taiwan’s LGBT mobilization, allowing it to eventually overcome opposition from the church-based countermovement.”
We suggest that this legislation is not only significant for being the first in Asia, but also for what we might consider certain characteristically Asian features. For example, it significantly limits the rights of same-sex couples vis-à-vis adoption, stipulating that adoption is only allowed for those cases where the child is the biological offspring of one of the partners. In this manner, the law reinforces the traditional East Asian privileging of the continuity of the lineage through bloodlines. As one DPP legislator put it; “the rationale for this article is for the integrity of family; it is also motivated by the desire to protect the best interests of the child.” This discourse is indicative of the emphasis in East Asian cultures on “the family” and “children” over individual rights.
In addition, the new law also prohibits international same-sex marriage (including marriages between a Taiwanese and a Hong Kong, Macau, or mainland Chinese spouse). This is another clearly discriminatory measure since heterosexual couples are exempt from such limitations with regard to international or transnational marriages.
Finally, counter to the demand for the decriminalization of adultery advocated by some Taiwanese feminists, the same-sex marriage legislation — as with the current laws regarding heterosexual marriage — prohibits married couples from extramarital sexual relations.
MIT’s Professor Bruno Perreau, an international expert on gay marriage and same-sex parenting and adoption, commented on the limitations of Taiwan’s same-sex marriage law:
“Under the new legal regime, same-sex married couples will only have a limited access to adoption, that of the biological child of one of the spouses. The number of children available for adoption has indeed dramatically decreased worldwide over the past fifteen years. In this context, gay adoption is often regarded as competing with adoption by heterosexual parents. Also, adoption of non-biological children raises an even broader question: isn’t the family, whether based on biology or not, always already a choice? This viewpoint has major political consequences since the sense of belonging to a nation is itself based on metaphors of the family. This is why opening adoption of non-biological children to gay married couples can appear more unsettling than gay marriage itself!”
Whereas the enactment of Taiwan’s same-sex marriage law can be regarded as a significant (if only partial) victory for the gay community and allies in Taiwan, and a key precedent for the rest of Asia, another important factor in the passage of this legislation is Taiwan’s ongoing effort to gain international status on the global stage and to distinguish its identity against that of China, which is less progressive on gay rights.
In the course of Tsai Ing-wen’s campaign for the presidency in 2016, she clearly expressed her support for the gay marriage movement. After her election, she paved the way for the current successful legislation by appointing liberal justices to the Constitutional Court, which facilitated the favorable ruling of 2017 that set out the two-year course for reform. With the 2020 presidential election impending, however, what impact Taiwan’s pioneering same-sex marriage legislation will have on the election outcome is a question that deserves continued attention.
Wen-hui Anna Tang (唐文慧) is a professor at National Sun Yat-sen University in Taiwan and currently a Visiting Scholar in Global Studies and Languages at MIT.
Emma J. Teng is the T.T. and Wei Fong Chao Professor of Asian Civilizations at MIT and Head of Global Studies and Languages.