Identity

Why same-sex marriage in Taiwan might end up being ‘separate but equal’

Nov 30, 2018

My friend, a gay Taiwanese man, had long feared coming out to his parents. But he made a promise to himself: he would do it when Taiwan legalized gay marriage.

So last year, when Taiwan’s top court ruled that a ban against same-sex marriage was unconstitutional—a first in Asia—he rejoiced, he cried, and he kept his word.

Supporters of same-sex marriage embrace each other in Taipei after Taiwan’s top court ruled in favor of same-sex unions on May 24, 2017.
Supporters of same-sex marriage embrace each other in Taipei after Taiwan’s top court ruled in favor of same-sex unions on May 24, 2017. / Photo: AFP

His parents struggled at first, but they eventually accepted him for who he was.

The celebration didn’t last long.

Fast-forward one year to last weekend, when 7 out of 11 million Taiwanese voted against same-sex marriage in a referendum. It was a major blow to the queer movement in Taiwan, considered to be the most LGBT-friendly place in Asia.

Here’s everything you need to know about Taiwan’s fight for marriage equality.

Opponents of same-sex marriage at a rally in Taipei on Nov. 30, 2013.
Opponents of same-sex marriage at a rally in Taipei on Nov. 30, 2013. / Photo: AFP

Shouldn’t the court decision have been the end of it?

Not quite. The court ruling in May 2017 only declared current marriage laws unconstitutional and gave the legislature two years to fix them.

What if the legislature doesn’t do anything?

Practically speaking, same-sex marriages would still go ahead. The court said that even if the laws aren’t changed, same-sex marriage registration should go into effect in May 2019.

A supporter of same-sex marriage holds a sign during the pride parade in Taipei on Oct. 28, 2017.
A supporter of same-sex marriage holds a sign during the pride parade in Taipei on Oct. 28, 2017. / Photo: AFP

So why isn't the fight over?

The court ordered legislators to either amend current marriage laws or enact new ones, and that’s where the debate gets dicey. Should they change existing laws or pass new ones?

LGBT advocates worry that if new “special laws” for gay couples are created, they would not be guaranteed the same full rights as heterosexual couples. An analogous case would be the “separate but equal” doctrine that justified racial segregation in the United States.

This is where the referendum comes in.

A man casts his ballot at a polling station in Kaohsiung, Taiwan, on Nov. 24, 2018.
A man casts his ballot at a polling station in Kaohsiung, Taiwan, on Nov. 24, 2018. / Photo: Reuters

Yeah, what was that all about?

The court ordered Taiwan’s politicians to make gay marriage legal. The referendum tried to answer the question of how, but it was quite complicated. There were five questions on the ballot related to LGBT issues, and this made things confusing.

For example, three questions asked voters for their opinion on same-sex marriage, but they were phrased differently depending on whether a conservative or LGBT group submitted them. See if you can tell the difference.

  1. “Do you agree that under the Civil Code, the definition of marriage should be restricted to the union between one man and one woman?" (70% said yes)

  2. "Do you agree that the rights of same-sex couples in permanent co-habitation should be protected in ways other than changing the Civil Code?” (58% said yes)

  3. "Do you agree that the marital rights of same-sex couples should be protected using the Civil Code?" (63% said no)

The first two questions were filed by conservative groups, while the third was from an LGBT group. They all essentially asked the same thing, and in the end, all three results were unfavorable to LGBT rights.

Opponents of same-sex marriage rally outside the parliament building in Taipei on Nov. 17, 2016.
Opponents of same-sex marriage rally outside the parliament building in Taipei on Nov. 17, 2016. / Photo: AFP

What does this mean?

The referendum is legally binding, so Taiwan’s legislature is obligated to enact a separate law for same-sex marriage, that “separate but equal” option mentioned earlier.

Taiwan’s premier said on Thursday that the government would push ahead with this legislation. LGBT groups urged the government to ensure equal protection when drafting the new law.

Passing it within six months, before the deadline set by the court, would be challenging but not impossible.

How does this affect the rest of Asia’s LGBT communities?

Since last year’s court judgment, Taiwan’s been championed as a trailblazer of LGBT rights. This referendum shows that Asia’s most LGBT-friendly society is not as liberal as it is reputed to be, and rights activists say there is still a lot more work to be done.

The region overall remains pretty conservative. Same-sex marriage is not recognized anywhere in Asia, and homosexual activity remains illegal in some countries.

(Read more: A Chinese mother’s letter to her daughter on her coming out)

Supporters of same-sex marriage wave the rainbow flag at a rally in Taipei on Dec. 10, 2016.
Supporters of same-sex marriage wave the rainbow flag at a rally in Taipei on Dec. 10, 2016. / Photo: AP

What about your friend?

I was in Taipei with him when the results came in, and he said it was one of the worst days of his life. “Seven million people just humiliated my community,” he said.

But I also saw how the political urgency of the moment made him stronger and come out to more members of his family, including his godmother, who would have voted against marriage equality.

On referendum day, she voted for same-sex marriage. So did his parents.

Adapted from a piece originally published in the Goldthread newsletter. To get this and other great content first, subscribe here.