by Brian Hioe
Photo Credit: Brian Hioe
A MARRIAGE BETWEEN a Taiwanese man and his partner from Macau have been hailed as a landmark for transnational gay marriages in Taiwan. The marriage, which took place between Ting Tse-yan and his partner Guzifer Leong, who is from Macau, took place yesterday and was registered at the Zhongzheng District Household Registration Office. The marriage could happen because of a ruling by the Taipei High Administrative Court in May.
That being said, the decision by the Taipei High Administrative Court narrowly applies to Ting and Leong. Consequently, it is not the case that the decision paves the way for transnational gay marriages to take place in Taiwan, contrary to some reports—though it is still the case that the ruling could provide momentum for the broader legalization of transnational gay marriages.
Facebook post by the Taiwan Alliance to Promote Civil Partnership Rights, which represented Chi Chia-wei in the lawsuit that legalized gay marriage in Taiwan, on the marriage
Namely, while gay marriages are legal for Taiwanese citizens as of 2019, Taiwan currently only allows for gay marriages between Taiwanese and citizens of other countries that have legalized gay marriages. Likewise, citizens of other countries that hope to be married in Taiwan, neither of which are Taiwanese, cannot do so. There is also no provision to have gay marriages that take place in another country recognized.
Ironically, part of the successful push to legalize gay marriage occurred after the suicide of French professor Jacques Picoux, a long-time resident of Taiwan. Picoux killed himself after his partner died; Picoux was unable to visit his partner on his deathbed or inherit property from him because he could not marry him.
For their part, Ting and Leong have expressed the view that the delay on legalizing transnational marriages in Taiwan is illegal and, despite their successful marriage, called for legal changes to be made to amend this.
In January, the Executive Yuan completed a draft revisions on a bill that would expanding the scope of gay marriages in Taiwan and sent this to the legislature for review. Though the draft was completed in November, it had to undergo revisions by other government stakeholders that changes to existing laws would touch upon the jurisdictions of, such as the Ministry of Foreign Affairs, Ministry of the Interior, Ministry of Justice, and the Mainland Affairs Council.
The ruling that allowed Leong and Ting to get married took place on the basis of the argument that Leong lives and works in Taiwan. Namely, Macau’s Civil Code states that “habitual residence” determines what law applies to individuals from Macau. This was used in order to argue that because Leong lives and works in Taiwan and has done so since 2017, Taiwanese law regarding gay marriage should apply to him. The ruling applies only to Leong and Ting’s case, then, though this precedent could potentially be used for other cases about individuals from Macau, depending on the circumstances of such cases—and this would still potentially require a long and complicated legal process.
Moreover, draft legislation from the Executive Yuan to widen the scope of gay marriages still requires one of the two members of a couple to be Taiwanese. The draft changes apply to foreigners, which includes individuals from Hong Kong and Macau. At the same time, Chinese are excluded from this due to the Republic of China (ROC) legal framework; individuals from China are not considered foreign nationals because Taiwan is officially and legally the ROC, and so spouses from China are not from another country.
Music video released by the SEA You Soon campaign, which was started by the Taiwan Alliance to Promote Civil Partnership Rights
As a result, the Mainland Affairs Council has stated that it will research what legal options are available to allow for same-sex marriages between Taiwanese and Chinese. Considering the number of Taiwanese-Chinese gay couples, it is probable that the issue will come up sooner or later. Legal issues have stemmed from the fact that Chinese nationals are not technically foreigners in the past, such as regarding the ability of international students to enter Taiwan after borders were shut because of the COVID-19 pandemic.
In the meantime, the question remains of how and when the scope of transnational gay marriages will be expanded in Taiwan, a key issue at a time in which border restrictions due to COVID-19 could mean long separations. If this occurs on the basis of a court ruling, this may take many years. Despite advocacy by groups instrumental in the original push to legalize gay marriage in Taiwan for the expansion of transnational gay marriages, as in the 2020 SEA You Soon campaign, it is another question whether there is adequate political will for legislators to make such changes at present. The issue may simply end up being sidelined, in the absence of public advocacy on the issue.