On May 17, Taiwan became the first Asian country to legalize gay marriage. This is a step forward for civil rights and equality under the law, and fully deserving of the fabulous public celebrations inspired by the law’s passage. Gay couples are now legally entitled to inherit property from their spouse, and to make critical medical decisions on behalf of their partner.
Semper ad meliora.
It is, however, incumbent upon those who support full equality to critically assess the many ways in which this victory falls short, and how tenuous it may yet turn out to be.
The final legislation (there were three competing bills) followed from a 2017 decision by Taiwan’s Constitutional Court mandating that the government extend equality under the law to homosexual partnerships. Pursuant to that ruling, had the legislature simply done nothing, homosexual couples would now enjoy, without restriction, all the same rights as heterosexual couples. Politics apparently dictated a vain attempt to please diametrically opposed factions, which produced a new, separate “marriage equality” law. As always, the devil is in the details.
Opponents of homosexual rights invoked the standard objections: protection of the family unit as the bedrock of civilized society, and faith-based arguments largely reliant on fallacious interpretations of cherry picked bits from Christian scripture.
They cannot explain how permitting people to register their chosen familial relationships could possibly affect heterosexual marriages or families. As Hitchens succinctly stated, “That which is asserted without evidence may be dismissed without evidence.” This neatly dispenses with the former objection. With respect to the latter, theological claims - acrobatic flips and twists notwithstanding - have no place in debates over civil rights in a secular democracy.
Still, the foot-stampy whinging of that angry, bigoted minority, propped up by massive spending from external Christian hate groups (to which I return below), gained the opposition a significant semantic victory: the specific word "marriage" will still exclude homosexual unions.
The legal status of gay marriage, pursuant to the new law, is segregated in the alternative nomenclatures "exclusive partnership" or "same-sex union,” and does not derive from revisions to the existing civil code regarding marriage. One law for me, another for thee.
One cannot ignore the inherent weakness in any argument that relies so heavily on stubborn claims about terminology. Since there are no substantive arguments against equal treatment for gay couples under the law, the opposition demanded that gay partnerships be calledsomething else. “Marriage,” they insisted, must be reserved for heterosexuals.
It is unclear whether cowardice or political expediency - a desire to get half a loaf rather than none at all - moved Taiwanese legislators to cede that ground. Thus, we arrive in the odd place where gay marriages may be registered pursuant to the gay marriage law but are not, in law, a marriage.
Do the terms “husband” and “wife” apply, mutatis mutandis, to same-sex partnerships?
Words do, in fact, matter a great deal.
The new legislation specifies that Taiwanese citizens may only partner with a foreign spouse if they are a citizen of a country in which same-sex marriage is also legal. If your spouse is Canadian or Kiwi, all is well...if, however, your partner is Saudi, the union will not be recognized. The result for a spouse with dual Egyptian/UK citizenship is anyone’s guess.
One should not attribute to malice that which may be explained by stupidity - presumably the government did not intend to import randomized strains of gender inequality...but they have.
In Ghana, for example, lesbian marriage is legal but male homosexual marriage is punishable by a term of incarceration. Thus, as a consequence of Ghanaian law, Taiwanese lesbians can marry their Ghanaian partner, but gay Taiwanese men may not. Such a glaring patchwork of vacillating civil rights, imposed on Taiwanese citizens by capricious foreign bigotry, cannot and should not withstand legal challenge.
It’s difficult to imagine what mean calculus made this particular cruelty seem necessary - perhaps a desire to not alienate any of the dwindling number of countries that recognize Taiwan as distinct from China. Whatever the motive, imagine fleeing a country in which homosexuals are murdered only to be told that your relationship will not be validated because your home country disapproves. There's some unflattering irony in that legal shiv being forged in “Chinese Taipei.”
Yet another article of the law, again inserted to placate faith-based opposition, provides that same-sex couples may only jointly adopt the biological child of one of the partners.
This amendment plainly follows from stubbornly ignorant and willfully blind claims that children are best served by having mixed-gender parents; that children of same-sex couples are somehow disadvantaged or harmed, and the morally repugnant and slanderous implication that homosexuals are often child predators.
Consequently, desperately needy but unrelated foster children will be denied the comfort and security of a home with loving, dedicated parents if those parents are gay. This is precisely the sort of legal inequality - rooted in slander and presumptuous bigotry - that justice must reject.
Other issues surrounding gay parenting remain confusingly murky: questions about surrogacy (banned in Taiwan) reside in a legal grey area even for heterosexual couples. The status of children conceived via IVF to lesbian parents - who must travel abroad for the procedure - is unclear. Gay men who employ surrogacy involving donated egg and sperm would presumably be barred from legally adopting their child.
Perhaps it’s too soon to lament the distance still to be traversed when this milestone has only just been reached, for the first time ever, in Asia. Or perhaps rejoicing, while understandable and long overdue, is somewhat premature.
"This is the death of democracy. Seven million people voted against same-sex marriage in the referendum and their votes meant nothing.” - Liu Yan via Facebook.
Liu Yan is either mistaken or lying: seven million people voted that the word “marriage” be reserved for heterosexual unions (and it has been so reserved). They did NOT vote against same sex marriage.
Such fallacious claims are the stock-in-trade of those who oppose equality, and all the more insulting when premised on outright falsehood. The outrageous baseline presumption that civil rights - fundamental human dignity - shall be afforded only to those deemed worthy by majority vote renders the entire exercise a thing of deserved contempt and ridicule.
Various polls conducted over years demonstrate that tolerance, if not outright support, for legally recognized civil unions has long carried solid and growing majorities in Taiwan. Fluctuations in the numbers allegedly opposed (and what they, in fact, oppose) were plainly the result of how the question was presented. Push-polling tactics employed by the anti-equality factions - unsurprisingly - lack even a hint of subtlety.
Be that as it may, neither the consistently expressed will of the people nor the exposure of mendacious tactics and external influence will deter the homophobes.
The political opposition in Taiwan - the Kuomintang (KMT) - immediately put the island on notice: if they regain power in the coming presidential election, marriage equality will be repealed. They point to polling (designed and conducted by gay rights opponents) which shows broad support for traditional marriage, as well as a preference that homosexual partnerships not be called “marriage.”
Never content to take yes for an answer, the KMT plans to flog this issue for electoral advantage and we should take sober measure of their intentions. Whether it will be an effective issue, or whether such crowing bigotry is rejected by a citizenry disinclined to discriminate based on sexual orientation remains to be seen.
Whether the Constitutional Court’s ruling survives a new administration, or the composition of the Court is altered with the addition of partisan judges...these are serious questions for a day that may soon arrive.
Opposition to equal rights in Taiwan, as previously noted, is egregiously contaminated by the outsized influence of foreign religious groups. Christians make up a tiny sliver of the Taiwanese population, but they were plainly and loudly responsible for whipping opposition to gay marriage.
Their efforts were substantially funded by external entities motivated by homophobic doctrine, and without regard for Taiwanese opinion, civil rights on the island or anything beyond thwarting equality for homosexuals at all turns. That foreign faith-based organizations were sufficiently brazen to meddle directly in matters of Taiwanese law and civil rights is an issue that deserves meticulous review. Imagine the screeching, spittle-flecked condemnation that would obtain if Taiwanese organizations started lobbying for gun control laws in Montana. The same, “Mind your own fucking business” reply should be delivered here and with severe consequences attached.
It is troubling on its face that fundamental human rights might be subjected to the will of the people. Constitutions serve many purposes, not least to protect citizens from the tyranny of the majority (or theocratic minority) by enshrining core principles - precisely such values as equal rights - in the supreme law. The Constitutional Court did not instruct the Legislature to extend marriage equality to homosexuals only if a majority of citizens approve - that’s not how equality under and before the law works.
By way of analogy, if a solid majority of voters in Mississippi backed “Whites Only” lunch counters, and the state legislature passed such a law, the will of the people would immediately be struck down by the courts as unconstitutional.
The argument that civil and human rights shall be extended or denied according to the whims of the electorate ought to be rejected on its face. No country worthy of borders enshrines as a principle, “Whatever most people blurt out in response to a loaded poll question.”
The right to make a family and a life with the person one chooses - with the person one loves - is at the absolute core of what it means to be free; to have agency with respect to the most basic and requisite aspects of self.
It is inarguably a good thing that same-sex partnerships are now recognized under the law of Taiwan. That it excludes foreign spouses from countries that reject gay marriage; that gay couples may only adopt biologically related children...and that it may be rolled back entirely as a matter of partisan politics underscores the incomplete and insecure nature of this advance.
You may now (at least for now) kiss your same-sex exclusive partner.
Mazel Tov.
