After lengthy rounds of negotiations, consultations and compromise, the Legislative Yuan passed the government’s version of the “Enforcement Act of Judicial Yuan Interpretation No. 748” on May 17, making Taiwan the first country in Asia to legalize same-sex marriage. (Read: Taiwan Becomes the First Asian Country to Legalize Same-Sex Marriage)

The Legislature first debated same-sex marriage in 1986, and Taiwan’s first gender equality organization was formed in 1990. The arduous journey of more than 10,000 days since then finally resulted in a milestone that would not have been possible without the courage of LGBT rights leader Chi Chia-wei.  

No Rainbow Colors

“In 1986, when I held the first international press conference to come out of the closet, I had two swords with me. One was to be used to fight AIDS, the other to improve the human rights of gays,” says Chi during an interview in a coffee shop.

Unusual for Chi when talking to the media, he did not have any rainbow-colored paraphernalia with him. Compared to 30 years ago when he first stepped on the gender rights battlefield fully armed, he is clearly mellower today.

Taiwan has two advantages that have always increased the odds of passing a same-sex marriage law: the political empowerment of women and a strong economy characterized by balanced development. But Taiwan is also part of the conservative Confucian cultural milieu of East Asia, a force that has often made it hard for the gender equality movement to gain any traction.

Unlike in Western cultures, where greater emphasis is put on human rights and individualism, Confucian societies are more apt to obey authority and stress collective order, and Taiwan is no exception.

Yet, within this context, Chi still emerged as the pioneer of Taiwan’s gender rights movement, and one of the key reasons the movement has advanced faster and further than in other countries is Chi’s personal courage in speaking out.    

Beyond Chi’s personal efforts, Taiwan experienced a dramatic explosion in democracy and social movements in the 1990s, a trend that profoundly influenced and inspired the LGBT community. The early leaders of the movement who put their souls into those reform efforts acquired knowledge and took steps that helped fuel future initiatives.  

It was during those heady days that Taiwan’s first nationwide gender rights organization was formed, a lesbian organization called “我們之間” (literally “Between Us”). In 1993, the first campus gay community was created at National Taiwan University called “男同性戀問題研究社” (Gay Issue Research Society), and in 1995 a group dedicated to the discussion of same-sex marriage called “同性戀人權促進小組” (LGBT Rights Promotion Task Force) was established.

Various forms of LGBT literature also reached new heights in the ’90s, and literature prizes awarded by major newspapers often went to works about LGBT issues. Chu T’ien-wen’s “Notes of a Desolate Man,” for example, won the first China Times Literary Award. Generally speaking, artistic and cultural events have provided important shots in the arm to the LGBT movement.

The efforts made by these civic groups over two decades eventually laid the groundwork for the movement to legalize same-sex marriage to take off around 2010.

Legislative Failure

Looking back at legislative consideration of the same-sex marriage issue, most people remember it starting with Democratic Progressive Party (DPP) lawmaker Hsiao Bi-khim in 2006 or her DPP colleague Yu Mei-nu in 2012. But in fact Taiwan’s Legislature discussed the issue as far back as 1986 because of a petition filed by Chi Chia-wei.

Chi Chia-wei (Photo by Kuo-Tai Liu)

“At the time, I had different strategies for the executive, legislative and judicial branches. Of course, I didn’t think I would succeed right away, and the Legislative Yuan wasn’t capable of achieving success but perfectly capable of making a mess of things,” Chi says, his chin in his hands, his eyes displaying a mischievous twinkle, as though recalling a particularly interesting game.

“Of the three, I thought the judiciary offered the best chance of success, but I still had to deal with the Legislature, so I filed a petition.”

It would take 33 years from the first time same-sex marriage was discussed in the Legislature for the body to legalize it. Because Chi turned most of his attention to filing motions in the judicial system starting in 1998, those doing the heavy lifting in trying to revise the law and pass the amendment have been the DPP’s Yu and civic groups such as the Taiwan Alliance to Promote Civil Partnership Rights and the Marriage Equality Platform.

Yu Mei-nu (In the middle of the photo, standing. Photo Source: CW)

Yu embarked on the journey to amend laws to legalize same-sex marriage in 2012. Her legislative aide responsible for pushing the agenda at that time, Tseng Chao-yuan, is now a senior researcher with the Awakening Foundation, a group dedicated to combating gender discrimination. Tseng admits that when an amendment was first submitted in 2012, she did not think it would succeed.

“That year we were trying to rally support for Nelson Chen and his partner Kao Chih-wei, who were not allowed to register their marriage. We were told by legislative clerks that we had to propose legislation on the subject for a public hearing to be arranged, so we decided to submit an amendment to the Civil Code,” Tseng recalls.

The public hearing focused on two topics – the legalization of same-sex marriage and enshrining into law the rights of same-sex couples. According to Legislative Yuan records, it was the first public hearing on the issue in the body’s history, which is why when members of the younger generation think about same-sex marriage legislation, “Yu Mei-nu” is the first name that comes to mind.

‘Family Diversity’ Enters the Game

At the end of 2012, family diversity proposals that had long been contemplated and prepared by gender equality groups were finally formally drafted into legislation by the Taiwan Alliance to Promote Civil Partnership Rights and later submitted by Yu and fellow DPP lawmaker Cheng Li-chiun.

In a small office in Jingmei, alliance secretary-general Chien Tsu-chieh recalls that prior to 2010, most LGBT groups were involved in gender education, hotline consultations and AIDS prevention. Few of them considered the possibility of legislation.

“Legalization requires legal professionals, something LGBT groups had lacked in the past. We finally felt at that point in time we could draft bills because of the return of ‘Hsiu-wen’ from the United States,” Chien says.

Chien is full of pride when she talks about “Hsiu-wen,” or Victoria Hsu, the alliance’s president and a lawyer with litigation experience. Within LGBT circles, Chien and Hsu are a well-known couple.

“When we studied the laws of countries around the world, we felt the most progressive laws are those that can be applied to all genders, including transgender people. So every provision in our amendment to the Civil Code was gender neutral,” Chien says.

Hoping to attain that vision, the group not only drafted amendments to Taiwan’s Civil Code but also a civil partnership bill and a family bill that at the time were described as the “three family diversity laws.” (Read: Taiwan's Diverse Families)

Of the three, however, only the “Marriage Equality Act” draft bill passed a first reading in the Legislature, in October 2013, and the alliance’s insistence on its progressive values led some LGBT groups to follow different paths in the years after that.

When the Constitutional Court issued its ruling in 2017, gay rights supporters gathered in the street hugged each other and cried in joy. (Photo by Ming-Tang Huang)

Justice from the Constitutional Court

Tsai Ing-wen voiced support for same-sex marriage when she was campaigning for the presidency in 2016, so when she was elected and took office in May that year, it was a major boost for LGBT campaigners.

But because the previous marriage equality legislation could not be carried over to the new Legislature seated in February 2016, efforts to amend existing laws had to start from scratch. Yu and the Marriage Equality Platform, a coalition of five LGBT groups, opted for a new targeted approach focused on amending five provisions of the Civil Code. The opposition New Power Party and Jason Hsu of the opposition Kuomintang decided to take up the mantle for the original bill proposed by the Taiwan Alliance to Promote Civil Partnership Rights.

At the end of 2016, the Legislature’s Judiciary and Organic Laws and Statutes Committee passed a first reading of Yu’s five revisions, triggering a protest from same-sex marriage opponent, the Coalition for the Happiness of our Next Generation, in which the coalition’s convener, Yu Hsin-yi, was injured. The ruling Democratic Progressive Party (DPP) came under unprecedented pressure, and consultations to ease the impasse made no headway. It was at that point that dissatisfaction with the DPP government among some younger same-sex marriage supporters began percolating.

Public support for the movement seemed to grow, with a concert held by the Marriage Equality Platform on Ketagalan Boulevard outside the Presidential Office in December 2016 drawing an estimated 250,000 people, a figure far higher than the LGBT movement could have imagined.

But in the end, it was not legislative action or public activism that forged the necessary breakthrough. Instead, Chi Chia-wei, who had persisted in his pursuit of a judicial strategy, finally received a response from the Constitutional Court that offered hope in breaking the legislative stalemate.

In its Interpretation 748, the court ruled that the Civil Code was unconstitutional because it did not allow people of the same gender to enter into a legal marriage, violating Article 22 (protecting freedom of marriage) and Article 7 (protecting the right to equality before the law) of the Constitution.

“The Grand Justices finally achieved fairness and justice, but the two-year sunrise provision was too long, leading to endless problems,” Chi says.

Other countries have generally only allowed six months for constitutional rulings to take effect, Chi says, but the two years afforded by Taiwan’s Constitutional Court to implement its ruling enabled people with agendas opportunities to sow social discord.

Chi cites two examples: the referendum questions initiated by the Coalition for the Happiness of our Next Generation in 2018 and concerns over the constitutionality of a special law on the same-sex marriage issue introduced following the referendums.  

(Photo source: CW) 

Major Referendum Setback

To Marriage Equality Platform convener Jennifer Lu, nothing could be more aptly described as recipes for disaster than the referendums held in November 2018.

“After the constitutional interpretation, gays and lesbians finally felt free of fear, that they could freely walk the streets feeling that the country accepted them,” she says. But that sense of acceptance was smashed by the referendum results, in which 72 percent of voters agreed with the Civil Code definition of marriage as being between a man and a woman and 61 percent agreeing that the rights of same-sex couples should be protected outside the Civil Code.

Based on figures from Lu’s group, in the week following the referendums, there were at least 10 cases of gays or lesbians committing suicide. And even before the vote, the LGBT movement endured a major internal conflict over whether it should directly respond to the Coalition for the Happiness of our Next Generation’s tactic of “putting human rights up for referendum.”

Miao Po-ya, who was elected as the first openly lesbian Taipei City councilor on the same day of the referendums, was subject at one point to harsh criticism from within LGBT circles for initiating a referendum on protecting same-sex marital rights in the Civil Code as a way to counter the anti-gay group’s tactics.

“When I was later interviewed, foreign reporters had a hard time understanding why a referendum was still held when a constitutional interpretation had already been issued,” Chien says.

She believes Taiwan’s LGBT community still faces a serious problem – that the country’s democratic system is not yet deeply rooted. “Because of the country’s identity issue, people cannot feel proud of their Constitution. Today’s controversy only exists because of a lack of respect for the Constitution.”

Yet despite that sentiment, the drafting of a separate law governing same-sex marriage was based on both the constitutional interpretation and the referendum results, and the turbulent battle over the law has come to an end, at least for now. Even if the “Enforcement Act of Judicial Yuan Interpretation No. 748” is not perfect, it still represents a historic milestone in Taiwan’s human rights history.

In the context of the early stages of the struggle in the 1990s or the Martial Law period (that ended in 1987) period when homosexuality could not even be talked about, today’s achievements are truly remarkable, though Chi feels attitudes still need to evolve.

“In 1974, the American Psychiatric Association removed homosexuality from a list of mental illnesses, but it takes two generations to change people’s mindsets,” Chi says. 

“A generation lasts 30 years. In 2004, half the people accepted that there was nothing wrong with homosexuality. By the time 2034 rolls around, if you ask people on the streets what they think about gay issues, people will simply say you’re wasting their time!” Chi says with a chuckle, the ordeal of the past 30 years no longer seeming to be such a burden.

Have you read?
♦ 'Factions Clash as Marriage Equality Law Tabled
♦ Opinion: Taiwan Voted against LGBT Equality, But All is Not Lost
♦ Taiwan's Diverse Families

Translated by Luke Sabatier
Edited by Sharon Tseng