Taiwan’s Same-sex Marriage Law: What Happens Next?

Last week, the Executive Yuan finally introduced a marriage equality bill that will come into force on May 24, 2019 pursuant to the Constitutional Court ruling two years ago finding the Civil Code restricting marriage to between a man and a woman unconstitutional and that this needs to be corrected within two years. Many LGBTQ rights activists have pointed out the deficiencies of this bill. Although it legalizes same-sex marriage and treats same-sex couples equally as heterosexual couples in matters such as marital duties, marital property, and inheritance, it is still discriminatory in many other respects. For instance, it lacks provisions for joint adoptions by same-sex couples and it does not allow foreigners whose country of citizenship prohibits same-sex marriage to enter into one in Taiwan.

Here are some additional thoughts on the current state of the marriage equality struggle in Taiwan.

First, the vast majority of the responses by equality advocates have been on criticizing and pressuring the Executive Yuan to draft additional legislation to address the unequal treatment, but not enough attention has been on pushing the Legislative Yuan to fill in the gaps. To fix the discriminatory aspects of the law, legislators can still introduce separate legislation or make amendments to the Executive Yuan bill during the legislative process. More energy should be spent on working with allies such as DPP legislator Yu Mei-nu to persuade the Legislative Yuan to act. It’s not like the Executive Yuan was unaware of the disparate treatment created by its bill before advocates spoke up. They wrote it that way for a reason.

Second, the holding of Judicial Yuan Interpretation No. 748 states:

The [Legislative Yuan] shall amend or enact the laws as appropriate in accordance with the ruling of this Interpretation within two years…If the [Legislative Yuan] fail[s] to amend or enact the laws as appropriate within the said two years, two persons of the same sex who intent to create the said permanent union shall be allowed to have their marriage registration effectuated at the authorities in charge of household registration…in accordance with the said Marriage Chapter [of the Civil Code]. (emphasis added)

There is an argument to be made that the Executive Yuan bill is not “in accordance with the ruling” because of the disparate treatment it creates. Consequently, according to a plain reading of the opinion, same-sex couples should automatically be able to marry per the Civil Code on and after May 24 even if this bill were to pass and become law. Obviously attempting to marry using the Civil Code instead of the new law would lead to protracted litigation, but this is a line of argument advocates should consider in the court proceedings.

Third, much blame has been placed on the Legislative Yuan for not passing a same-sex marriage bill in December 2016 and on the Executive Yuan and Ministry of Justice for not introducing legislation earlier despite President Tsai Ing-wen’s purported support for marriage equality. In contrast, the Constitutional Court has generally been lauded for its ruling. The praise may be partly undeserved. If the Constitutional Court had not provided a two-year grace period or if it were specific about the legislation that had to be passed, procedurally and substantively, there would not have been debates on whether the bill should amend the Civil code or take another form, and there would not have been time for opponents to spread misinfor​​mation to garner support for their anti-equality referendum measures in November 2018. The Constitutional Court’s contribution to this debacle needs to be highlighted.

Fourth, the Ministry of Justice, which is under the Executive Yuan, seems to be quite passionate about equality. At least when it comes to criminalizing people. Instead of ensuring that same-sex couples have equal rights as heterosexual couples, it has instead already considered introducing legislation to ensure the current adultery law would apply to same-sex couples as well. This probably wasn’t what activists had in mind when they were advocating for equality.

There are three more months to go. Stay tuned.

(Feature photo by Victoria Chen)