The clock is ticking on the deadline set by the Constitutional Court of Taiwan to amend the law to allow same-sex couples to marry. On May 24, 2017, the court declared Taiwan’s existing marriage law unconstitutional on grounds of discrimination and gave parliament two years to amend it to include same-sex couples. If the government fails to act, the existing marriage provision in the civil code will be extended to same-sex couples starting May 24, 2019.

This ruling was hailed at the time as a ground-breaking step in Asia, paving the way for Taiwan to become the first place in the region to achieve marriage equality. But for activists in Taiwan, the road toward marriage equality has been strewn with obstacles.  

In November 2018, the government held a referendum on whether the civil code should restrict marriage to a man and a woman. Of the 55 percent of eligible voters who participated in the referendum, 67 percent voted against marriage equality.

Nevertheless, the Constitutional Court ruling is binding and legislators have proposed a draft law to Parliament that would legalize marriage between same-sex couples. The bill, if passed and enacted into law, would function as a separate statute that amends the relevant provisions in the civil code to allow same-sex couples to marry.

With only a couple of months left until the end of the two-year period prescribed by the Constitutional Court, uncertainty remains as to what the government will do.

Should the legislature enact the proposed bill into law? Yes.

To meet the requirements of Taiwan’s Constitution, as determined by the Constitutional Court, Taiwan’s lawmakers should pass the bill. Restricting the right to marriage between a man and a woman contradicts the right to equality and dignity and the right to marriage, in violation of Article 7, Article 22, and Article 23 of Taiwan’s Constitution. Regardless of their personal views on this matter, legislators committed to upholding the Constitution cannot neglect the court’s ruling.

Does the result of the referendum matter? Yes – the result reflects popular opinion on allowing same-sex couples to get married and the social progress on this issue in Taiwan.

But does the result of a referendum override a Constitutional Court ruling? No.

This case is not only about same-sex relations. It is fundamentally about discrimination, as the Constitutional Court rightly pronounced.

The court’s decision prohibiting discrimination is consistent with international law and human rights.  Prohibition of discrimination is a fundamental human rights doctrine in international law, reflected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Many United Nations treaty bodies and regional tribunals have authoritatively interpreted sexual orientation as a prohibited ground for discrimination.

While referendums can be an important component of democracy, the manner in which they are construed and invoked should not step beyond the boundaries of international human rights law. Article 30, the final article of the Universal Declaration of Human Rights, makes it very clear – the Declaration prohibits any state, group or person from engaging in any activity “aimed at the destruction of any of the rights and freedoms.” Here, any contention that the referendum result has the legal effect of overriding the doctrine of non-discrimination is a blunt violation of international law and human rights.

The draft law before the legislature is not without problems. The clause on adoption for homosexual couples, as it is now framed, seems to suggest that homosexual couples can only adopt biological children of one of the married parties. In the event that marriage is open to same-sex couples, the existing adultery law that provides for up to one-year in prison for violations would apply equally. A similar provision has been abolished in many jurisdictions in the world. These discrepancies and anomalies should be addressed in the current bill after the readings before the legislature.

Taiwan’s legislature should implement the ruling of the Constitutional Court and enact the same-sex marriage bill into law. This is a clear course of action under both Taiwan’s Constitution and its international legal obligations. This is not a bill seeking special treatment or additional rights, but one that seeks to provide overdue dignity and equal rights to all.

Philippe LeDoux is the International Law Fellow in the LGBT Rights Program at Human Rights Watch.

Suggested citation: Philippe LeDoux, Inclusive Marriage for Taiwan, JURIST – Academic Commentary, Mar. 22, 2019, http://jurist.org/commentary/2019/03/philippe-ledoux-inclusive-marriage/

This article was prepared for publication by Geoffrey Paschke, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org