LGBT rights in Taiwan

LGBT rights in Taiwan Taiwan
Same-sex sexual intercourse legal status Legal
Gender identity/expression Transgender people who have received sex reassignment surgery are allowed to change legal gender
Military service Yes
Discrimination protections Sexual orientation discrimination prohibited in education and employment;
Gender identity discrimination prohibited in education
Family rights
Recognition of
relationships		 Same-sex marriage to be legal by 24 May 2019;
Partnership register implemented in 18 out of 22 cities/counties since July 2017
Adoption No

Lesbian, gay, bisexual, transgender (LGBT) rights in Taiwan, formally known as the Republic of China, have been regarded as some of the most progressive in East Asia and Asia in general. Both male and female same-sex sexual activities are legal; however, same-sex couples and households headed by same-sex couples are not yet eligible for the legal protections available to opposite-sex couples.

The Taiwanese Government (Executive Yuan) first proposed the legal recognition of same-sex marriage in 2003; however, the bill received mass opposition at that time and was not voted on. Discrimination on the basis of sexual orientation, gender identity and gender characteristics in education has been banned statewide since 2004.[1] With regards to employment, sexual orientation discrimination has also been prohibited in law since 2007.[2]

The Taiwan Pride in 2015 was attended by nearly 80,000 participants, making it the second largest LGBT pride in Asia behind the parade in Tel Aviv, Israel, which has led many to refer to Taiwan as one of the most liberal countries in Asia as well.[3]

On 24 May 2017, the Constitutional Court ruled that the current marriage laws are unconstitutional and that same-sex couples should have the right to marry. The court has given the Parliament (Legislative Yuan) a maximum of two years to amend or enact laws so that same-sex marriage is legally recognized. According to the court ruling, if the Parliament fails to do so by 24 May 2019, same-sex marriage will automatically become legal.[4][5]

Legality of same-sex sexual activity

Private, consensual and non-commercial sexual activity between adults of the same sex is legal in Taiwan. Homosexuality per se has never been a crime. The age of consent is 16 for both homosexual and heterosexual acts.[6]

Constitutional rights

The Constitution of the Republic of China (Taiwan) does not expressly mention sexual orientation or gender identity; however, the Constitutional Court ruling on same-sex marriage in 2017 (i.e. Judicial Yuan Interpretation No. 748), based on the following two articles of the Constitution, has confirmed constitutional protections of LGBT people:

Article 7 of the Constitution states that "all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law".[7] In the constitutional interpretation issued on 24 May 2017, the Constitutional Court reasons that the prohibited grounds of discrimination listed in the Article are "illustrative, rather than exhaustive", so the right to equal protection applies to other classifications "such as disability or sexual orientation".[4]

Article 22 of the Constitution stipulates that "all other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution".[8] The Grand Justices ruled on 24 May 2017 that the freedom of marriage guaranteed by the Article applies to persons of all sexual orientations.[4]

According to Judicial Yuan Interpretation No. 185, "the interpretations of the Judicial Yuan shall be binding upon every institution and person in the country".[9]

Recognition of same-sex relationships

In October 2003, the Executive Yuan proposed legislation granting the right to marry and adopt to same-sex couples under the Human Rights Basic Law, but it faced opposition from members of both the Cabinet (formed by the ruling Democratic Progressive Party, DPP) and the Legislature (controlled by Kuomintang-led Pan-blue coalition) and stalled since, and thus not voted on.[10][11]

In 2011, aiming to promote awareness about same-sex marriage, about 80 lesbian couples held Taiwan's biggest same-sex wedding party ever, attracting about 1,000 friends, relatives and curious onlookers.[12] In 2012, the first same-sex Buddhist wedding was held for Fish Huang and her partner You Ya-ting, with Buddhist master Shih Chao-hui presiding over the ritual.[13][14] In 2013, Chen Ching-hsueh and Kao Chih-Wei, the second Taiwanese same-sex couple to wed publicly, dropped the prolonged fight to have their marriage legally recognized, citing intense social pressure.[15][16] Later that year, lifelong gay activist Chi Chia-wei picked up Chen and Kao's fight to have same-sex marriage recognized, presenting his case in the Taipei High Administrative Court for the first time.[17]

On 22 December 2014, a proposed amendment to the Civil Code which would have legalized same-sex marriage was due to go under review by the Judiciary Committee of Legislative Yuan. If the amendment had passed the committee stage, it would then have been voted on at the plenary session of the Legislative Yuan in 2015. The amendment included replacing the current articles regarding marriage in the Civil Code with gender-neutral terms, effectively recognizing same-sex marriage. It would have also allowed same-sex couples to adopt children. Yu Mei-nu of the Democratic Progressive Party (DPP), had expressed support for the amendment, together with more than 20 other DPP lawmakers as well as two from the Taiwan Solidarity Union and one each from the ruling party Kuomintang (KMT) and the People First Party.[18] The ROC would have become the first Asian state (and non-UN recognized entity) to legally recognize same-sex marriage if the Civil Code was amended. However, the bill was stalled, and the attempt officially failed in January 2016 as the Eighth Legislative Yuan ended.

In November 2015, around two months before the general election, presidential candidate Tsai Ing-wen announced her support of same-sex marriage.[19] In July 2016, several lawmakers of the Ninth Legislative Yuan announced that they would introduce a same-sex marriage bill in Parliament by the end of the year.[20] In October, two same-sex marriage bills were introduced in the Legislative Yuan.[21]

On 24 March 2017, the Constitutional Court heard a case brought by gay rights activist Chi Chia-wei (whose attempt at registering a marriage with his partner in 2013 was rejected) and the Taipei City Government's Department of Civil Affairs. Both petitioners had requested a constitutional interpretation on the issue. The Court decided to make a judgement on whether the current Civil Code in fact allows same-sex marriage and if not, whether that violates articles under the Constitution of the Republic of China (Taiwan) pertaining to equality rights and the freedom to marry. Those who appeared before the Court on that day included counsels of both petitioners, the Justice Minister Chiu Tai-san (who defended the existing laws on marriage) and a panel of legal scholars. This was the first time a Constitutional Court hearing was broadcast live.[22][23][24]

The Constitutional Court ruled on 24 May 2017 that the current clauses pertaining to marriage in the Civil Code, which states that marriage is between a man and a woman, are unconstitutional. The panel of judges has given the Parliament (Legislative Yuan) two years to amend or enact new laws, which could potentially make Taiwan the first country in Asia to legalize same-sex marriage. The Court further stipulated that should the Legislative Yuan fail to legalize same-sex marriage within two years, same-sex couples will be able to marry by going through the existing marriage registration procedure at any household registration office.[4][25]

Registration of same-sex couples

In May 2015, the special municipality of Kaohsiung announced a plan to allow same-sex couples to apply for a remark of their partnership on the computerized household register, largely for reference only. It would be of little use when a person wishes to grant consent to surgery on the partner's behalf at hospitals, for instance. Taiwan LGBT Rights Advocacy, an NGO, criticized the plan as merely a measure to "make fun of" the community without having any substantive effect.[26]

On 17 June 2015, the special municipality of Taipei became the second jurisdiction in Taiwan to implement a relationship register scheme for couples.[27] Taichung followed suit in October 2015.[28] Tainan and New Taipei opened registration for same-sex couples on 1 February 2016.[29][30] On 1 March, the provincial city of Chiayi became the sixth jurisdiction in Taiwan to implement a relationship register.[31] On 14 March, Taoyuan became the last special municipality of Taiwan to recognize same-sex couples.[32] Both Changhua County and Hsinchu County implemented a relationship register on 1 April.[33][34] On 20 May, Yilan County began allowing same-sex couples to register as partners.[35] Chiayi County opened registration for same-sex couples on 20 October.[36] By early July 2017, Hsinchu City, Keelung City, Kinmen County, Lienchiang County, Miaoli County, Nantou County and Pingtung County had begun offering household registration services for same-sex partnerships.[37] Starting from 3 July, 2017, residents living in the remaining counties which refuse to provide same-sex partnership registration, including Yunlin County, Hualien County, Taitung County and Penghu County, can register their partnership in other cities or counties, as the technicality of registration became standardized by the Ministry of the Interior on the national level.[38] As of June 2017, a total of 2,233 same-sex couples (i.e. 4,466 individuals) were registered, of which 1,755 were lesbian couples.[39]

In the current practice, any two unmarried persons of the same sex can apply, in person, to any household registration office (except in the four counties mentioned above) to have their partnership recorded on the computerized household register. However, this information will not be displayed on either the National Identification Card or the Household Certificate (the latter shows the basic personal information of all individuals registered under the same address and the relationship between these individuals). Instead, the household registration office issues a letter to the applicants certifying the registration. Kaohsiung[40] and Taipei[41] municipalities also issue partnership cards. Citizens with a foreign partner are also eligible for registration, but the foreign partner needs to provide a Certificate of No Marriage Record, or equivalent, from the country of origin and have it authenticated by the respective embassy or representative office of Taiwan.[42]

Nevertheless, the current same-sex partnership registration, being an administrative measure, does not confer any actual legal status to a same-sex couple. The protections offered to same-sex partners are very limited, such as the right of requesting family care leave, applying for public housing as a family unit (in Taipei City only) and granting consent to surgery on the partner's behalf.[43][44] As of February 2018, other measures being formulated by the Executive Yuan include granting residence visa to foreign partners who are originated from countries where same-sex marriage is recognized by law.[45]

Discrimination protections

LGBT flag map of Taiwan

Discrimination based on sexual orientation, gender identity and other gender-related attributes in education has been banned since June 2004 when the Gender Equity Education Act was passed. Specifically, schools that discriminate against students of non-mainstream sexual orientation or gender identity, in terms of admission, instruction, assessment, etc., are subject to a fine of NT$100,000.[46] In June 2011, new clauses on sexual bullying were added to the Act. Schools are obliged to prevent and report bullying that is directed at a person's sexual orientation or gender identity.[47]

In 2007 and 2008, the Legislative Yuan passed amendments to two employment laws banning discrimination based on sexual orientation at work.[48][49][50] Any employer who breaches the anti-discrimination clauses in the Employment Service Act or Act of Gender Equality in Employment could face a fine of NT$300,000 to NT$1,500,000.[51][52]

In March 2010, the Ministry of Education announced that, starting from 2011, school curriculum and textbooks would include topics on LGBT rights and non-discrimination. According to the Ministry, the reform seeks to "root out discrimination", since "students should be able to grow up happily in an environment of tolerance and respect".[53] Due to strong opposition from anti-LGBT groups, a compromise was made. For instance, one teaching objective was changed from "understanding one's sexual orientation" to "respecting diverse sexual orientations".[54]

The Long-Term Care Services Act, enacted in January 2017 to regulate long-term care services for persons with illness or disability who cannot live fully independently, contains an anti-discrimination clause that covers sexual orientation and gender identity.[55]

Adoption and parenting

Same-sex couples are unable to legally adopt. Currently, a parent does not have any legal right over the biological child of their same-sex partner either.[56] These might change after same-sex marriage is recognized in law.

Under the Artificial Reproduction Act, assisted reproductive technologies are available only to married couples.[57]

Gender identity and expression

In 2002, transgender activist Tsai Ya-Ting unsuccessfully petitioned the Presidential office to allow her to use a photo that represented her actual appearance on her National Identification Card.[58]

In 2008, the Ministry of the Interior stipulated in an executive order that transgender and intersex people must undergo sex reassignment surgery in order to change their legal gender on personal documents.[59]

In August 2013, the Taiwanese Government gave the nod to the country's first public same-sex transgender marriage, after initially questioning the couple's gender.[60]

In late 2014, the Taiwanese Government announced plans to allow transgender persons in Taiwan to no longer have to undergo surgery to change their legal gender.[59] However, as of 2018, this has not become a reality, possibly due to "disagreements within the Government".[61]

In August 2016, Audrey Tang, a top software programmer, was appointed by the Tsai Administration to the Cabinet and became the first transgender minister of Taiwan. Her role as the Minister without portfolio (i.e. heading no particular ministry) deals with helping government agencies communicate policy goals and managing government-published information, both via digital means.[62]

In January 2018, the Taiwanese Government announced plans to introduce a third gender option in identification documents such as passports and the National Identification cards.[63]

Conversion therapy

On 13 May 2016, the Health Bureau of the Taichung City Government announced that medical institutions in Taichung are prohibited from engaging in conversion therapy. According to Shader Liu, a member of Taichung’s Gender Equality Committee, any group - medical, civil or religious - that practices the 'treatment' is violating the Physicians Act and the Psychologists Act. The committee made a request to the Ministry of Health and Welfare to make the new rule applicable nationwide, so as to eliminate the practice.[64]

On 30 December 2016, the Ministry of Health and Welfare announced that it would draft an amendment to the Physicians Act to make conversion therapy prohibited. The Taiwanese Society of Psychiatry and human rights groups recommended that conversion therapy be banned. Members of the public had the opportunity to offer their opinions on the draft amendment for 60 days, after which the Ministry might issue regulations based on the draft. The regulations were expected to bypass Parliament in late January 2017 and take effect in March 2017.[65][66] According to the Physicians Act, doctors who engage in prohibited treatments are subject to fines of between NT$100,000 (US$3,095) to NT$500,000 (US$15,850) and may be suspended for one month to one year.[67] However, the proposed regulations were stalled by fierce resistance from anti-LGBT groups.[68]

Instead of pushing ahead legal amendments or new regulations, on 22 February 2018, the Ministry of Health and Welfare issued a letter to all local health authorities on the matter, which effectively banned conversion therapy.[69] In the letter, the Ministry states that sexual orientation conversion is not regarded as a legitimate healthcare practice and that any individual performing the so-called therapy is liable to prosecution under the Criminal Code or the Protection of Children and Youths Welfare and Rights Act, depending on the circumstances.[70]

Military service

Lesbian, gay and bisexual people have been able to serve openly in the military since 2002.[71]

Blood donation

In December 2016, the Center for Disease Control announced that it would lift the lifelong ban on gay and bisexual men donating blood. The Taiwan Blood Services Foundation commented that other exclusion criteria provided adequate safeguards against unsafe blood.[72]

In March 2018, the Government gazetted, for a two-month public consultation, amendments to the Standards on Assessing Donor Suitability for Blood Donation that included allowing gay and bisexual men who have not had sex with another man for five years to give blood.[73][74] A spokesperson of the Ministry of Health and Welfare said that the abstinence period would be further reduced to one year in the future, so as to bring the Taiwanese standard in line with Western countries.[75]

Since 2018, Taiwan has legally allowed LGBT people to donate blood, but only if they haven't had sex in 5 years.

LGBT life in Taiwan

Taiwan Pride 2005
The 2016 edition of Taiwan Pride

On 1 November 2003, Taiwan Pride, the first LGBT pride parade in the Chinese-speaking world, was held in Taipei, with over 1,000 people attending.[76] It has taken place annually since then. In the early years, many participants wore masks to hide their identity because homosexuality remained a social taboo in Taiwan. This has gradually changed over the years. The 2010 parade attracted 30,000 attendees and increased media and political attention, highlighting the growing acceptance of LGBT people in Taiwan. Since 2010, there has also been a pride parade in Kaohsiung; the first pride in Kaohsiung attracted over 2,000 people.[77] The city of Taichung also holds pride parades, with the 2016 one attracting a crowd of 20,000 people.[78] The 2017 Taiwan Pride parade was attended by an estimated 123,000 people.[79]

Representations of LGBT people in literary and cinematic works are also instrumental in promoting public awareness of LGBT people and advancing LGBT rights in Taiwan. In the 1970s, some novels regarding homosexuality were published. One of the most prominent writers is Pai Hsien-yung, who introduced gay characters in his novels, the most famous being Crystal Boys. More recently, some gay TV series and movies have been produced and have gained great attention among gay communities in both Taiwan and China. Examples include the TV series Crystal Boys, adapted from Pai Hsien-yung's novel by the same title, and the movie Formula 17. In 2005, Taiwanese director, Ang Lee, directed the gay Western film Brokeback Mountain, receiving high critical acclaim and Academy Awards. Spider Lilies, a lesbian film directed by Zero Chou, was screened at the 2007 Berlin International Film Festival. It won the Teddy Award for best gay feature film.

Public opinion

A poll of 6,439 adults released in April 2006 by the National Union of Taiwan Women's Association/Constitutional Reform Alliance concluded that 75% believed "homosexual relations are acceptable", while 25% thought "they are unacceptable".[80]

A 2013 online poll showed that 53% of Taiwanese supported same-sex marriage. According to the online poll, 76% were in favor of equal rights for gays and lesbians.[81]

In May 2015, PlanetRomeo, an LGBT social network, published its first Gay Happiness Index (GHI). Gay men from over 120 countries were asked about how they feel about society’s view on homosexuality, how they experience the way they are treated by other people and how satisfied they are with their lives. Taiwan was ranked 34th with a GHI score of 54.[82]

A 2015 online poll showed that 59% of respondents approved legislation allowing same-sex couples to establish "marriage-like" relations, with 75% supporting same-sex marriage.[83]

Summary table

Same-sex sexual activity legal (Always legal)
Equal age of consent (Always equal)
Anti-discrimination laws in employment (Since 2007)
Anti-discrimination laws in education (Since 2004)
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)
Same-sex marriage / (Not yet in effect. To be legal by 24 May 2019)
Recognition of same-sex couples / (Since 2015, partnership registration performed in all municipalities except four counties; very limited protections only)
Stepchild adoption by same-sex couples (Proposed)
Joint adoption by same-sex couples (Proposed)
LGB people allowed to serve in the military (Since 2002)
Right to change legal gender (Since 2008; surgery required; removal of surgery requirement proposed)
Conversion therapy outlawed (Since 2018)
Access to IVF for lesbians
Commercial surrogacy for gay male couples (Banned for heterosexual couples as well)[84]
MSMs allowed to donate blood / (5 year deferral period)

See also

References

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  2. ↑ "Employment Service Act". Article 5, Act of 23 May 2007. Retrieved 9 April 2018.
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  65. ↑ Liao, George (20 January 2017). "Conversion therapy to be prohibited by regulation". Taiwan News. Retrieved 13 April 2018.
  66. ↑ Benedict, R.S. (30 January 2017). "Taiwan is Getting Closer to Banning Gay Conversion Therapy". Hornet. Retrieved 13 April 2018.
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  68. ↑ 黃, 驛淵 (7 December 2017). "【獨家】反同攻進國發會公共平台　衛福部「禁性傾向扭轉」2度觸礁" [[Exclusive] Anti-LGBT group attacks MoHW's proposed ban on sexual orientation conversion on National Development Council's Public Policy Online Participation Platform] (in Traditional Chinese). Retrieved 13 April 2018.
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  77. ↑ "Gay pride parade set for Kaohsiung". Central News Agency. Taipei. 20 September 2011. Retrieved 24 May 2017.
  78. ↑ Taichung City, Taiwan, Celebrates Pride with a Record-Breaking Crowd of 20,000, Focus Taiwan News Channel, 22 December 2016
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