The path to this new law was not easy — and reveals Taiwanese society’s mixed attitude toward LGBT rights. Here’s what you need to know to understand how these marriages were won and what it means for LGBT rights in Asia.
The path was bumpy
Members of Taiwan’s parliament began introducing these bills in 2003 — but strong opposition from other legislators and much of civil society meant those went nowhere. But in 2013, LGBT advocates sued for equal marriage rights, advised in part by Evan Wolfson, who led much of the marriage-equality fight in the United States.
And so, two years ago, Taiwan’s Constitutional Court ruled that the ban on same-sex marriage violated rights for equality and freedom of marriage under its constitution. The court instructed the legislature to amend the existing marriage law within two years.
In response, an anti-gay marriage group backed a 2018 referendum in which voters approved a measure defining marriage as specifically between a man and a woman, and banning revision of the existing marriage code. But the Taiwanese parliament rejected the referendum’s result as unconstitutional, and passed a special law allowing same-sex “exclusive permanent unions” that can be registered as marriages — without amending the civil code’s marriage law.
Judicial action vs. public opinion
Taiwan’s back-and-forth between legislature, court and voters is far from unusual on LGBT rights around the world. In some countries, marriage reform comes with or because of huge generational shifts in public opinion. That’s what happened in Ireland, where in a 2015 referendum, 62 percent of voters voted in favor of legal same-sex marriage. Similarly, in Australia’s nonbinding 2017 referendum, 61.6 percent of voters supported same-sex marriage; within two months, parliament passed a same-sex marriage law.
Elsewhere, courts have implemented same-sex marriage, often despite legislatures and public opinion. That’s what happened in Bermuda, a British overseas territory with local autonomy. Voters rejected both same-sex marriage and an alternative form of recognition, civil unions, in a 2016 referendum. In 2017 the Supreme Court ruled that under the Human Rights Act’s guarantee of nondiscrimination, same-sex marriage must be legal — but within seven months, after about half a dozen couples had wed, the government rolled back that law, replacing marriages with domestic partnerships instead. After another lawsuit, the Bermuda Supreme Court ruled the new law unconstitutional in 2018. Same-sex marriages are again being performed — but the government is appealing.
Given how rapidly opinion has shifted in favor of LGBT rights in general and same-sex marriage in particular in most developed countries, Bermuda’s courts are likely to prevail. Generally, the more LGBT people and gay rights causes are publicly discussed, the more accepted they are socially — and the more successful at winning equal rights.
Will there be ripple effects in Asia?
As a result, Taiwan’s new law is likely to influence communities beyond the island — perhaps by motivating activists in other countries in the region to push for similar legislation. Researchers find that pro-LGBT legislation and case law has strong spillover effects in neighboring jurisdictions, helping to motivate activists and influence public opinion and policymakers.
We can already see that in Asia. Hong Kong’s LGBT community is calling on its government to follow Taiwan. Legislators don’t appear likely to take up the issue, but judges might. In September 2018, after Hong Kong’s Court of Final Appeal ruled that other countries’ same-sex partnerships must be legally recognized, the Hong Kong government began granting dependent visas to same-sex spouses. Advocates might argue for same-sex marriage rights by appealing to Hong Kong’s Basic Law and Bill of Rights, which guarantees the right to equality. Elsewhere, constitutional provisions of equality and privacy, which many countries guarantee, can be used to argue for legal changes.
Yet gay sex remains illegal in many Asian countries
And yet LGBT rights remain severely limited in Asia, where many countries still criminalize same-sex sexual intimacy. As we show in our book, the British Empire often imposed those laws on its colonies. For example, Bangladesh, Brunei, Malaysia, Myanmar, Pakistan and Singapore all have such laws under the same section number, 377, imposed as part of a colonial-era penal code.
Brunei, a British colony until 1984, recently introduced even stricter laws, based on sharia, making gay sex punishable by stoning to death. The international backlash was considerable; celebrities like George Clooney and Elton John called for a boycott of the sultan of Brunei’s hotels. The sultan was apparently disturbed enough by the reaction that he publicly stated the death penalty would not be enforced.
Courts might undo some of this criminalization. At least, that’s what happened in India. After a long legal battle including several rulings with contradictory effects, India’s Supreme Court ruled Section 377 unconstitutional last September. While Singapore has repealed some of its criminal laws on homosexuality, its government has tried to appease conservative social groups by retaining Section 377A, which criminalizes “gross indecency”, while stating that the government will not enforce it. Activists are now challenging that stance in court.
While Taiwan has taken a significant step, it may be a long time before the rest of Asia catches up.
Enze Han is an associate professor at the department of politics and public administration, the University of Hong Kong.
Joseph O’Mahoney is a lecturer in politics and international relations at the University of Reading in the United Kingdom.
Together they are the authors of “British Colonialism and the Criminalization of Homosexuality: Queens, Crime and Empire” (Routledge, 2018).——