Happily Ever After: Taiwan Rules In Favour Of International Same-Sex Marriages

Taiwanese law made it clear that under Article 46 of Act Governing the Choice of Law in Civil Matters Involving Foreign Elements that the formation of a marriage is governed by the national law of each party. This means individuals of Taiwanese origin are free to wed each other but are not permitted to marry a foreign individual whose country does not recognise same-sex marriages – like India or Malaysia.

On International Day Against Homophobia, Transphobia and Biphobia 2019, the small island of Taiwan ushered itself into a new era of equal rights. The Taiwanese legislature voted in favour of a progressive bill that would recognise same-sex marriages – the first of its kind in Asia. The bill would also permit couples to adopt children who are biologically related to either parent.

However, Taiwanese law made it clear that under Article 46 of Act Governing the Choice of Law in Civil Matters Involving Foreign Elements that the formation of a marriage is governed by the national law of each party. This means individuals of Taiwanese origin are free to wed each other but are not permitted to marry a foreign individual whose country does not recognise same-sex marriages – like India or Malaysia. Activist Chi Chia-wei is accredited with bringing this massive loophole into the limelight. Chi has been unable to wed his partner because he is a Malaysian national.

Two years after the historic legislation, Taiwan took another step towards solidifying queer rights in the country. On 22nd January 2021, Judicial Yuan – the judiciary of Taiwan – proposed amendments to the aforementioned Article 46 to further expand the scope of marriage to include international same-sex marriages.

The Taipei High Administrative Court cited Article 8 and directed the authorities at Taipei’s Daan District Household Registration Office to issue a renouncement of their previous decision and allow Chi and his Malaysian partner to get married.

However, for Chi, his partner has been unable to provide proof of his single status. The pandemic as well as Malaysia’s repressive measures against the queer community have held him back. This means the registry cannot legally allow them to wed.

Taiwan’s progressive legal approach has been heralded as a beacon of hope for the rest of Asia to follow. However, the ground reality is sobering as always. The Diplomat reported that the overall improvement in the quotidian lives of queer people has been limited at best. Opponents of the Democratic Progressive Party (DPP) have been fuelling public sentiment with inflammatory anti-LGBT slander. Their go-to mantra is an evocation of traditional values and an emphasis on how LGBTQ+ folks are the drivers of the decline of such values.

When it comes to fundamental rights for the queer community, Asia has always been a mixed bag. Every time an Asian territory takes a step forward towards envisioning an equal future, we are met with heartbreaking headlines about how the community is treated elsewhere in the continent.

Whilst Taiwan’s legislations boast massive loopholes and their implementation leaves more to be desired, the country has been successful in expanding the definition of what family means.

On 25th February 2021, India rejected the request for the legalisation of same-sex marriages. The Centre’s affidavit dismissed the petition based on the notion that the institution of marriage is strictly limited to a biological man and a biological woman. It stated that “Same-sex individuals living together as partners and having a sexual relationship is not comparable with the Indian family unit concept of a husband, a wife and children, which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two.”

The affidavit is a painful reminder that legalities rest on majoritarian belief. In the case of India, a Brahminical, patriarchal structure with dangerously right-wing affiliations. There may come a time when India recognises same-sex unions but what good is a law that serves as very little motivation for societal acceptance? Unless there comes a sweeping change in conscience, no law can give us a queer happy ending – be it India or Taiwan.

About the author

Sara

Lover of cheese, Manto and languages.