Taiwan has always had two advantages that increased the odds of passing a same-sex marriage law: the political empowerment of women, and a strong economy characterized by balanced development. However, 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 traction — although interestingly, Confucius believed and taught that it is marriage that lies at the foundation of government.
This paper examines the history leading up to the 2017 and 2019 legalization of same-sex marriage in Taiwan, a “first in Asia,” as well as current developments, criticisms, and future complications. This paper first introduces the basics of the Taiwanese legal system, including relevant political history, the history and powers Judicial branch, and the Referendum Act. It also covers the historical development of Taiwan’s queer rights movement, beginning in the 1980’s up until 2017. It then follows how the issue of same-sex marriage finally reached the highest court in Taiwan, The Council of Grand Justices, in 2017, the two-year period following given for its implementation, and finally, the Legislative Yuan’s Enforcement Act in 2019.
The analysis delves into the legal reasoning and arguments of the Council of Grand Justice’s decision, including a brief comparative with that of United States Obergefell v. Hodges.
The overall approach is also compared, as Taiwan did not implement the more common tried-and- true incrementalist approach utilized by the United States and several other countries in its path to marriage equality. The paper also examines current developments in Taiwanese queer family law, as a response to criticism that Legislative Note No. 748 is discriminatory in its treatment of same- sex marriage involving non-Taiwanese citizens, and in adoption and parental rights. Finally, thepaper looks at barriers and complications to further progress, including a false dichotomy of East- West cultural attitudes and the institution of marital supremacy.
LEGISLATIVE INTERPRETATION NO. 748: EXAMINING THE HISTORY AND FUTURE OF TAIWAN’S SAME-SEX MARRIAGE LAW,
21 Santa Clara J. Int'l L.
Available at: https://digitalcommons.law.scu.edu/scujil/vol21/iss2/3