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Anti-gay-marriage protesters rally outside the Taiwanese legislature in Taipei on May 8. Lawmakers are expected to vote this Friday on three draft bills that would implement a Constitutional Court ruling in 2017 legalising same-sex marriage. Photo: AFP
Opinion
Opinion
by Zoe Leung
Opinion
by Zoe Leung

What Taiwan’s slow march towards legalising gay marriage means for LGBT rights in Asia

  • The euphoria that greeted the landmark court ruling two years ago in favour of same-sex marriage has given way to foot-dragging in government and determined opposition by conservative groups
Zoe Leung
Zoe Leung
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To many outside the LGBT community, the May 2017 ruling of the Taiwan Constitutional Court legalising same-sex marriage settled the question. However, outside the public consciousness, there has been a continuous struggle for same-sex couples to attain equal rights, despite being promised them by the highest court on the island.
The vote against amending the Civil Code to legalise same-sex marriage in a November 2018 referendum was a setback not only for the LGBT community, but also President Tsai Ing-wen, who campaigned heavily in favour of gay marriage. Following this setback, new uncertainties have emerged to reconcile this vote with the realities required by the judiciary, as the legislature determines the final details of a gay marriage bill this week. 

The popular vote conveyed a general hostility towards recognising an equal, same-sex marriage in the Civil Code – Taiwan’s basic law governing relationships between individuals – with more than 70 per cent voting against it. Instead, the Taiwanese public voted for a legal framework to protect the rights of same-sex couples separate from the one in place for heterosexual ones, implying less than equal rights.

The referendums came at the tail end of the two years given to the legislature to amend the marriage laws, after the government failed to make any progress. This sluggish process stemmed from deep divisions within the ruling party on the issue as well as an obvious resource advantage for conservative groups over advocates for the LGBT community.

In referendums held last November, the Taiwanese public vetoed recognising an equal, same-sex marriage in the Civil Code, but instead voted for a legal framework to protect the rights of same-sex couples separate from the one in place for heterosexual couples. Photo: EPA-EFE
Now, inching closer to the May 24 deadline set by the Constitutional Court for legislative implementation, the power has shifted to the 113 lawmakers who will have a final vote on the issue on Friday. Three draft bills have been proposed – one by the government and two by lawmakers. After a breakdown in negotiation crushed hopes for reconciling the differences into a consensus-based bill, the individual clauses of each draft bill will go through a third and final reading in the legislature on Friday, incidentally the International Day Against Homophobia, Transphobia and Biphobia.

The legislators will vote on competing clauses in the three draft proposals. The proposal that offers same-sex couples the best legal coverage is “The Enforcement Act of Judicial Yuan Interpretation No 748” put forward by Tsai’s cabinet in February. It closely mirrors the provisions laid out in the Civil Code, which stipulate the rights and benefits of legalised spouses, though limiting adoption rights and only conditionally recognising the legality of some transnational marriages.

The sanitised language of the title of the draft bill, removing any reference to marriage, shows the mounting political pressure from opponents on the issue, especially on the back of the Democratic Progressive Party’s (DPP) major defeat in local elections last November.
Taiwan's gay marriage ruling raises hopes across Asia

The other two draft bills, initiated by legislators Lai Shyh-bao, of the opposition Kuomintang, and Lin Tai-hua, of the DPP, show more sympathy to those who oppose any form of legislation allowing same-sex marriage. Both proposals consider same-sex unions non-marital by restricting the use of the words “marriage” and “spouse” for same-sex couples, denying their equal rights and directly contravening the Constitutional Court’s ruling.

With Lai’s refusal to compromise and Lin’s absence during negotiations on Tuesday, little progress has been made to find a compromise that takes into account all three proposals, adding to the uncertainties around the final bill.

If the DPP fails to whip up votes to support the Cabinet’s proposal, which results in a bill that fundamentally deviates from the judiciary’s decision, the burden will again be shifted back to Tsai’s cabinet to find a legislative solution that complies.

Regardless of the final content of the same-sex marriage legislation, the fight for full equality is far from over. Taiwan’s path to marriage equality holds important implications for other Asian countries seeking the same, who can learn from Taiwan’s trailblazing, if slow, experience; this success should not be overshadowed by the remaining steps needed for full equality.

For the more than 150 same-sex couples who plan to register for marriage on the first day their union can be legalised, May 24 will be a historic moment.

Zoe Leung is a senior programme associate with the EastWest Institute. The views expressed here are solely those of the author

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