Cabinet Unveils Draft Bill and Picks a Side in Taiwan's Gay Marriage Fight

The administration of Taiwan President Tsai Ing-wen (蔡英文) has approved a draft bill which, if passed, will make Taiwan the first country in Asia to legally enact marriage equality for same-sex couples.

The draft legislation comes almost two years after Taiwan’s highest court ruled that same-sex couples have a constitutional right to marry. However, voters decided in last November’s referendums that marriage should be defined as between a man and a woman in Taiwan’s Civil Code, dealing a blow to Taiwan’s LGBT activists.

The new bill has frustrated the anti-same-sex marriage campaigners behind the November referendums, who had hoped for a watered down bill providing only for same-sex civil unions.

Credit: Michael Garber

The language of the draft bill, called “The Enforcement Act of Judicial Yuan Interpretation No. 748,” forcefully defends “equal protection and freedom of marriage for two people of the same gender” in Article 1. However, advocates reacted with cautious optimism.

The Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), who argued the case that led the high court to write Interpretation 748, ordering the legalization of same-sex marriage before May 24, 2019, released an official response to the draft bill. The group found it mostly mirrored those rights afforded to heterosexual marriages in the civil code, but said: “These few issues are the fly in the ointment.”

The legal relationship to a partner’s relatives, or in-laws, is different from heterosexual couples under the civil code. A spouse may adopt the other spouse’s biological child, but same-sex couples are still unable to adopt non-blood relatives.

In Article 26, there is a vague reference to “religious freedom” which TAPCPR fears may permit employment discrimination.

Also, foreign partners may be ineligible for same-sex marriages in Taiwan if such unions are not legal in one or both of their home countries.

Taiwan’s Ministry of Justice has already announced the draft bill will be subject to further amendments.

Minister of Justice Tsai Ching-hsiang (蔡清祥), when asked by reporters at an Executive Yuan news conference on Thursday why the law did not provide equal adoption rights for same-sex couples, said the topic of adoption was not covered under the high court’s interpretation.

“Adoption is not included in the scope of the judge’s interpretation of the constitution,” said Tsai. “But as a practical concern, one same-sex partner might have biological children, so we wrote in (conditional adoption of a partner’s children).”

Credit: Michael Garber

Under the Assisted Reproduction Act, women not in a heterosexual marriage are also not able to access in vitro fertilization treatment (IVF) in Taiwan, which is equally true for unmarried women.

But an even higher bar to accessing adoption and IVF is Constitutional Interpretation 587, which enshrines the right of offspring to know their biological parentage. In practice, this makes anonymous adoption or donation of reproductive tissue problematic, as biological parents must be identified. And, as a constitutional interpretation, 587 cannot simply be overturned without a new ruling from the high court.

But there is one area of the civil code which is likely to see a revision thanks to same-sex marriage.

In the draft bill, both parties to a same-sex marriage must be at least 18 years old, while the civil code requires that the female party in a heterosexual marriage need only be age 16. Minister Tsai indicated that specific part of the civil code would be altered to set the same legal marriage age for men and women.

In a likely response to widespread misinformation that legalized same-sex marriage would also allow polygamy, bestiality, and incest, among other already illegal deviances, Ministry of Justice Director of Legal Affairs Chung Jui-lan (鍾瑞蘭) enumerated a list of acts which are still illegal under the draft bill.

“Incestuous relationships are prohibited. Nobody within four degrees of familial removal can establish a same sex marriage,” said Chung.

“Also, polygamy, or multiple marriages, are also prohibited,” she said. “That is, if you’re already in a same-sex marriage, you can’t establish another same-sex marriage with someone else, nor can you establish a heterosexual marriage.”

Liability for criminal adultery may also be extended to same-sex marriages in a future amendment of the bill, according to Deputy Minister of Justice Chen Ming-tang (陳明堂).

Credit: Michael Garber

The officials present at Thursday’s press conference strained to frame the bill in continuity with existing legal norms. However, in a political debate which hinged on whether or not to include the word “marriage,” the administration’s draft bill is a firm declaration that it sides with the courts and marriage equality proponents.

The details of the bill, however, are sure to face stiff opposition in the legislature.

Mixed reactions from advocates

The draft bill has also received measured criticism from advocacy groups on both sides of Taiwan’s marriage equality debate.

A statement on the Facebook page of Taiwan Hotline, the country’s most prominent LGBTQ activist group, said: “It isn’t perfect. There’s room for greater equality. But, the Hotline is deeply aware of the enormous pressure last year’s referendum has put on the Executive Yuan, and understand they are strenuously holding fast to defend the gains of the high court’s decision.”

As recently as Feb. 7, the Executive Yuan floated the possibility of submitting a “Same Sex Companion Law”. But on Thursday, Cabinet spokesperson Kolas Yotaka made the case for marriage equality, reading a statement from Premier Su Tseng-chang (蘇貞昌).

“Everyone knows that society is constantly improving,” the statement read. “In the past, poor people, women, black people were each discriminated against for a long time, without even the right to vote. But now they are respected, as all people are equal.”

“Medical science has proven that homosexuality is innate, it is natural, and is not a disease. It is not contagious. A heterosexual can’t be converted to homosexuality by instruction, and it is especially impossible for a homosexual person to be converted to heterosexual.”

The announcement was received angrily by same-sex marriage opponents, the most prominent of which is the Coalition for the Happiness of the Next Generation, the lobbying group which initiated the successful anti-same-sex marriage referendum campaign.

Coalition leader Yu Hsin-yi (游信義) posted a reaction to his followers on Facebook, repeating an argument the group has used consistently since winning the November 2018 referendums: “I implore the Executive Yuan to respect the result of Referendum Proposition 10. 7,65 million voters agreed, ‘Limit the civil code definition of marriage to one man and one woman!’”

The Judicial Yuan, of which the Council of High Justices is part, stated both before and after the referendum that the court’s constitutional interpretation would hold precedence over any referendum result. Legal experts in Taiwan have debated whether referendum results are enforceable by law, but they do not usurp Taiwan's constitutional law.

However, the severe drubbing the that the ruling Democratic Progressive Party (DPP) suffered in the November 2018 local elections, concurrent with the referendums against same-sex marriage, inspired the administration’s last Premier, William Lai (賴清德), to publicly suggest backing off from the marriage equality issue.

Many rank and file DPP members blamed election losses on the party’s association with marriage equality and openly advocated for the administration to defy the court.

Credit: AP / TPG

Conscious of this still-seething tension, Premier Su’s announcement in a Wednesday evening video shared to Facebook couched the bill in procedural language.

“In accordance with the outcome of the referendum, the civil code will not be changed in any way,” said Su.

“And in accordance with the high court’s interpretation number 748, which orders equal freedom and protection under the law for same-sex couples’ right to marry… the Executive Yuan submits the draft bill for “The Enforcement Act of Judicial Yuan Interpretation No. 748.”

Update (6:30 p.m.): Liability for criminal adultery has not been included in the draft bill, although the Ministry of Justice said on Thursday it may be included in a future amendment.

Read Next: How Does Taiwan Really Feel About LGBT Issues After Its Referendums?

Editor: Nick Aspinwall (@Nick1Aspinwall)