For Taiwan and much of East Asia, homosexuality has long been a taboo subject. In the influential 1988 novel Crystal Boys, directly translated from Mandarin as “sons of sin,” Pai Hsien-yung tells the story of growing up gay in 1970s Taipei: “As soon as the sun comes up, our kingdom goes into hiding, for it is an unlawful nation; we have no government and no constitution, we are neither recognized nor respected by anyone, our citizenry is little more than rabble.” Simply put, Taiwanese society has long refused to recognize gay identities.
Yet today, the long fought for right to equal marriage, has finally materialized on the horizon. On May 24, 2017, Taiwan’s constitutional court, the Judicial Yuan, ruled that same-sex couples have the constitutional right to marry. Without further legislative action to codify the judicial ruling into law, however, the promise of marriage equality and of official recognition of lesbian, gay, bisexual, transgender and queer rights merely remains a mirage.
With the court’s ruling, many in Taiwan, especially those living in its liberal capital Taipei, believed their country had proven itself as the standard-bearer for the LGBTQ movement in Asia. The court’s May ruling gave the Legislative Yuan, Taiwan’s equivalent of a parliament, two years to amend marriage laws to align with its ruling. That same evening, much of Taiwan’s population rejoiced, expecting same-sex marriage to be legalized in a matter of days. Yet equality has never been simple to achieve. Over six months after the court mandated equal marriage, the legislature has yet to actually legalize its decree; today, same-sex marriage remains illegal, as it was for the ‘crystal boys’ 40 years ago.
Increasingly, it appears as if the Legislative Yuan may reject marriage equality by failing to acknowledge its court-mandated responsibility to address the issue. As of November, legislative discussion on the topic has yet to open. Rather than make Taiwan the first country in Asia to legalize same-sex marriage, the legislature appears willing to openly question the role and power of the judiciary. This inaction represents a drastic side-step from legislators’ widespread positive comments in affirmation of the Court’s ruling a few months ago.
While this inaction is discouraging, it is not altogether unexpected. Same-sex marriage has always been controversial in East Asia, and Taiwan is no exception. Although Taiwan does not have the history of violent oppression or criminalization of LGBTQ citizens shared by the majority of Asian nations, the country’s police once frequently ran late-night crackdowns in underground bars and known LGBTQ gathering spots.
Before 1996, the year Taiwan established full, liberal democracy, ignorance regarding LGTBQ issues was rampant. With the establishment of two-party democracy in 1996, however, Taiwan underwent a period of rapid social and political liberalization with the support of a now booming civil society. The small island nation quickly became the most LGBTQ-friendly nation in Asia and the de facto leader of the East Asian gay rights movement. As LGBTQ Taiwanese no longer needed to worry about government crackdown, they came out in full force. Their larger presence in society, combined with general social liberalization and low levels of religiosity, meant that even if non-heteronormative identities were not greeted with wide acceptance, they were at least granted social indifference.
This attitude of indifference continued until the early 2010s, during which time many European nations began to legalize same-sex marriage in rapid succession. In response, Taiwanese jurisdictions began to allow same-sex couples to register as couples, though not officially in marriage. Currently, 94% of Taiwan’s population lives in an area that allows for this registration process. Registration, however, lacks the 498 exclusive rights afforded under marriage, including rights regarding property ownership, economic assistance, and medical care. Although the ability to register as a couple is more than most Asian countries offer, it still falls short of true equality under the law.
The Judicial Yuan’s ruling on May 24 was made to grant this sort of equality. As the court wrote in its decision, current marriage laws are “in violation of both the people’s freedom of marriage … and the people’s right to equality,” and “sexual orientation is an immutable characteristic that is resistant to change.” The ruling was not just revolutionary in Taiwan, but across traditionally socially-conservative Asia as well, where many countries prosecute same-sex relations as a crime. Taiwanese civil rights activists claimed the judicial victory to not just be a beacon of hope for the Asian LGBTQ community, but as further evidence that Taiwan stands as an independent state, free to make its own future distinct from mainland China.
The legislature’s inaction, however, means that the clock is ticking. With nearly a fourth of the court’s allotted time expired, Taiwan is no closer to same-sex marriage legalization. Taiwan’s traditional “honeymoon” period, where legislation may be passed without much opposition after a court ruling, has long passed. Politics appears to be blocking progress.
Although 52% of the Taiwanese population, including over 80% of young people, support legalization, President Tsai Ing-wen appears unwilling to urge her party to debate legislation before the 2018 Taiwanese elections next November. Furthermore, Tsai’s governing Democratic Progressive Party, which has historically been in favor of marriage equality, has publicly questioned the Judicial Yuan’s interpretation of the rights afforded to the children and families of same-sex couples. Such slow movement and public hesitance regarding the court’s ruling suggest that the DPP may attempt to roll-back the court’s extensive ruling. Seemingly, the biggest concern of President Tsai and others in the DPP are the 2018 elections, and until then, they will continue to maintain that “consensus” is needed before marriage in Taiwan can truly be equal.
Still, most LGBTQ Taiwanese citizens are not particularly worried, at least not yet. On October 28, an estimated 123,000 people gathered in Taipei for the city’s annual LGBTQ pride parade, the largest-ever in Asia. Although the parade started in front of the Presidential Office, politics remained in the background. Almost six months after the court’s ruling, Taiwan’s LGBTQ community remains defiant and celebratory. Even if Taiwan’s legislature refuses to cooperate, Taiwan’s “crystal” children will no longer be thought of as the “sons [and daughters] of sin.” Rather, they are seen as equals.
Image credit: JeanHavoc/Wikimedia Commons