By Szu-Yi (Julie) Lee
This blog post was submitted as a contribution to the Tabula project, an international and comparative research collaboration carried out over the summer of 2021.
It has been more than two years since Taiwan legalized same-sex marriage, but is same-sex partnership really being protected there? Furthermore, has the legislation influenced other countries with close cultural proximity? How does the legislation affect the lives of those in the LGBT community and beyond?
The legalization of same-sex marriage in Taiwan has put it in the international spotlight since it was first debated there. Through legislation, litigation, referendum, and, finally in 2017 May 24, a landmark Taiwanese Supreme Court decision, the country made same-sex marriage no longer unconstitutional. It then implemented the Same-Sex Marriage Act (formally known as the “Act for Implementation of J.Y. Interpretation No. 748”) in 2019. Regardless of the civil movement pushing for marriage equality, however, Taiwan has yet to achieve true equality for same-sex marriage, especially with respect to cross-border marriage, adoption of children, the legal relationship to in-laws, the use of artificial reproduction technology, and further dialogue within the society to eliminate de facto discrimination.
In order to fully own the right to freedom of marriage and equality based on sexual orientation, there have been many legal cases concerning cross-border partners over the past two years. The latest victory, in early 2021, involved a cross-border couple from Taiwan and Macau; many others, however, are still struggling for judicial recognition of their cross-border marriages. The same goes for those fighting for the right to adopt non-biological children, since the law has not acknowledged the right of same-sex couples to adopt non-biological children.
In the meantime, the promulgation of same-sex marriage has changed the landscape of family life in Taiwan and altered the traditional Taiwanese imagination on the meaning of “couple.” More families are stepping up to include family members’ same-sex partners and to reshape the status of same-sex partners in traditional customs. All in all, Taiwan has become more inclusive and vibrant because of the advent of families composed of same-sex couples. But Taiwan’s landscape remains clouded by the predicament of inequality in the terms of marriage.
In Japan, the Sapporo District Court recently ruled that banning same-sex marriage is unconstitutional. Though the Japanese constitution has defined marriage to be based on “mutual consent of both sexes,” it is silent about whether it is referring exclusively to marriage between a female and a male. The district court, however, saying that sexual orientation is inherent and not a choice, decided that an interpretation that bans same-sex marriage constitutes discrimination on the basis of “race, creed, sex, social status, or family origin,” which is not allowed in the constitution. Though same-sex marriage is still not fully recognized, many municipalities in Japan had been issuing “partnership certificates” for same-sex couples that grant those couples some rights, and this district court decision has acted as a substantial force for the acknowledgment of same-sex marriage.
Although Japan is not alone in the region in not fully instituting same-sex marriage, it is the only country in the G-7 that has not done so. The benefits contained in the above-mentioned “partnership certificates” are not in fact equivalent to the recognized marital benefits. The call for legalizing same-sex marriage thus arises.
In neighboring China, student-led LGBT-focused student clubs have been once more blocked on WeChat, the prevailing digital and social media platform, frequently censored by Chinese authorities. LGBT groups in China operate under heavy surveillance, so it is not strange at all to see public opinions and communication forms being erased. But since this is the first time the governmental authority is collectively deleting information about the LGBT community, there is certain to be a ripple effect from the act.
LGBT equality still has a long way to go in Asia before marital status is no longer distinguished based on sexual orientation. Given the legal aspect and societal perspectives, embracing the LGBT community and incorporating rights into policy may be difficult at the moment. But just as Taiwan could pioneer LGBT rights, even if in a limited way, it should not be long before other Asian countries step up to establish a respectful regime for an equal institution of marriage.