Taiwan's path to legalising same-sex marriage

Governments are elected into office to make decisions for their nations, sometimes popular, other times unpopular. That is governance, it is not just about making the popular decisions, but rather, the right ones. Perhaps this may appear as undemocratic - after all the basis of democracy is the representation of the wishes of the people. However, with every “rule” out there, there is definitely bound to be exceptions and in recent times, one of the best seemingly unpopular decision made by a democratic government came from Asia - yes - after a long 2-years wait, Taiwan has legalised same-sex marriage, making it the first in Asia!

Let’s rewind

How did this even begin? Following veteran LGBT activist Chi Chia-wei and the Taipei City government’s request for a constitutional interpretation on whether same-sex marriage should be allowed in Taiwan, the Constitutional Court ruled on 24 May 2017 that the definition of a marriage as “between one man and one woman” was unconstitutional and that the parliament had 2 years to amend the legislation accordingly such that same-sex couples will be accorded equal rights as heterosexual couples by the deadline given.

However, the process towards the deadline was anything but smooth sailing. With the ruling made, opposition from the public was felt almost immediately. Within months, 22 members from the Yunlin County Council filed a motion to impeach the President of the Judicial Yuan (the judicial branch of ROC), Hsu Tzong-li and the other judges involved in the ruling, stating that such a ruling would have a “huge impact on the society…” Other reactions from those opposing the ruling included an appeal to the Judicial Yuan and the 2018 November referendum, pushed by the Alliance for Next Generation's Happiness.

With so much opposition and inertia from the public, it was not surprising that the referendum was an utter disappointment to the LGBT community in Taiwan. The anti-same-sex marriage side won by a wide margin and it seemed as though the Taiwanese people remained strongly against the ideals of equal rights for the LGBT community. The definition of marriage seems permanent, it is between a man and a woman, nothing else. Perhaps LGBT rights are not for the East?

The ruling stays

Despite the unfavourable results, the fight for equal rights persists and following the release of the results, the Secretary-General of the Judicial Yuan stated that the results could not override the ruling made on 24 May 2017. Following that, on 20 February 2019, the Cabinet released a draft law titled “The Enforcement Act of the Judicial Yuan Interpretation No. 748” which laid out several provisions focusing on inheritance rights, medical rights, mutual support and financial obligations, adoption of biological children of one spouse and divorce. With this draft law, the right for same-sex couples to marry was slowly but surely turning into a reality. Fast forward to 17 May 2019, following debates over this draft law and 2 other bills, the Democratic Progressive Party-controlled Legislative Yuan passed the law with 66 votes to 27.

While the law may not be perfect and does not grant full equal rights to the LGBT community, this is definitely a major victory for the LGBT community in Taiwan also all those around Asia as the “Eastern values” excuse should no longer be valid. Recognising and legalising same-sex marriage should not be confined only to the West because someone’s sexual orientation has nothing to do with where they come from. If Taiwan can do it, why can’t other countries do it too? How long do we need before we hold a conversation and fight for what is right?

Is it undemocratic?

Short answer: no.

Long answer: Some may argue that this law clearly negates the referendum’s results which expressed the Taiwanese people’s desire to maintain the definition of marriage. However, this brings me back to the crux of the issue - the fear of the negative impact (if any) legalising same-sex marriage has on society. People fear that it could create disorder, lower birthrates, turn heterosexuals into homosexuals but these are irrational fears. It is absolutely normal for there to be inertia towards major changes in societal norms but it should not linger. Equal rights for all can be tough, but it is the way forward. After all, isn’t equal rights a part of democracy as well?

(Cover Photo by Remi Yuan & Cecilie Johnsen)

By Eugene Goh

Vetted by Wivian Neo