WHICH WAY IS BETTER FOR FIGHTING GAY RIGHTS IN ASIAN COUNTRIES? FROM PERSPECTIVES ON LEGISLATIVE, ADMINISTRATIVE AND JUDICIAL APPROACHES
Maurice Hong-Cheng Chang
As you known, in October 2003, it was reported that the Taiwanese Government was preparing legislation to legitimize gay unions. If the new law is passed it would make Taiwan the first country in Asia to recognize same-sex partnerships. However, the proposal is like a stone dying into the water. In this presentation, I will show you that in Asian countries it is better for fighting gay rights with judicial or administrative approach than with legislative one. First of all, I want to introduce and criticize the proposal that intended to recognize same-sex partnership legally in Taiwan. Secondly, I will briefly describe the reasons why I suggest to access judicial or administrative approach for fighting gay rights in Asian countries. I am sorry that I could not attend the Conference and present my paper personally. I thank Mrs. Ping Wang, the Secretary General of Gender/Sexuality Rights Association, Taiwan, to announce this presentation paper for me. You are very welcome to contact me via e-mail to share your opinions of my paper.
FIRST PROPOSAL TO RECOGNIZE SAME-SEX PARTNERSHIP LEGALLY IN ASIA: A TAIWAN DREAM?
The proposal for Basic Law on Protection of Human Rights, Article 24 reads:
“The State should respect rights and interests of the homosexuals. (I)
Lesbians and Gay Men may legally organize the family and adopt the children in accordance with law. (II)” (Emphasis added)
A solemn proclamation, even a political slogan, rather than entitlement of substantial protection
This draft Act, namely “Basic Law on Protection of Human Rights”, is just a proposal by the Ministry of Justice. It does not pass the scrutiny of the Executive Yuan (Taiwan’s Cabinet), that is, not even a “bill” being submitted to the Legislative Yuan (Taiwan’s Parliament) to review. Therefore, it is impossible as the news reported that the bill would be reviewed by the Parliament on December 2003.
Besides, the characteristic of the proposal is just a “solemn proclamation,” a political slogan. Nevertheless, it is a good start for Taiwan to take the human rights of lesbians and gay men into consideration seriously. Moreover, it is indeed a testing of the public preferences. In fact, the Ministry of Justice proposed the draft Act for the first time in 2001. Since there was some opposition amongst the public opinions, the Ministry postponed the proposal. Then the Ministry of Justice failed to pass the scrutiny of the Executive Yuan and withdrew the draft Act in 2002. The Ministry comes up with the draft Act for the third time in 2003. However, the substances of the draft Act are exactly the same as the first proposal did.
The legislation would provide practical benefits to gay partners. As couples, they could pay lower tax rates. One partner's insurance could cover the other. Gay men and lesbians - who go by the Chinese nickname “tongzhi,” or “comrade”-- are flexing their muscle politically. Increasingly, politicians are courting gay rights groups. Taipei Mayor Ying-Jeou Ma attended Taiwan's first gay-pride parade in November 2003 and boasted that his city administration has provided financial support to an annual gay carnival.
No legislature agenda
As the critical analysis in my book, the articles legalizing the rights of lesbians and gay men to establish the family relationship and to adopt children are meaningless, because there is no regulation at this moment which depicts these rights to be in accordance with “law”. In other word, the so-called “Basic Law” itself does not empower the lesbians and gay men the substantial rights. It still needs to revise the relevant laws, such as Civil Law, or, as the author supposed, to legalize same-sex partnerships through interpretation by courts.
The legislative battle is really going to launch now
The push for gay unions -- a sensitive issue in the United States of America, where most states have enacted laws defining marriage as a union of a man and woman -- has stirred little political opposition here in Taiwan. The lack of controversy is surprising in a conservative Chinese society where most gay men and lesbians stay in the closet to avoid upsetting their parents. For one aspect, the legislation is designed to strengthen Taiwan's democratic and human rights credentials 17 years after the end of martial law time. It also is meant to give the island a public-relations boost by sharpening the contrast with its repressive communist rival, the Mainland China. For the new elected Government and her political party (Democratic Progressive Party, DPP), it is remarked to announce its establishment on protections of human rights.
Some Gay and lesbian groups are disappointed that the legislation doesn't specifically use the word “marriage” to describe the new right. They also are frustrated that the bill hasn't moved beyond a draft completed in Fall 2003. But political observers in Taiwan's capital attribute the slowdown to legislative gridlock and the press of a presidential election set for March 20 2004, not to serious political opposition.
Gay marriage generates far more political heat in the United States than it does in Taiwan. A Massachusetts supreme court ruling that cleared the way for gay marriage in that state in November 2003 has energized supporters of a constitutional amendment that would define marriage as the union of one man and one woman. President Bush has said he would support such an amendment, if necessary. Unlike in the United States, where Christian conservatives have a political force, Taiwan has little organized religious opposition to gay rights. There is little or no “gay-bashing” in Taiwan, where violent crime of any type is less common than in the United States.
Another reason is that gay people are relatively powerless and unorganized. In Taiwan, there are few gay rights organizations established for couple years. They do not have enough resources to lobby political departments or obtain the “attractions” of legislators. Under the political environment in Taiwan, there is little space for gay people to participate the democratic procedures. Meanwhile, issues of gay rights are not discussed in public and in election. Even with Taiwan's bitterly contested presidential election campaign in full swing, the gay-rights proposals have attracted little attention.
FIRST CONSTITUTIONAL INTERPRETATION APPLICATION FOR CONSTITUTIONALITY OF SAME-SEX MARRIAGE: SEX STORM IN COURT OR JUSTICES IN HEAVEN?
Is the Constitution nonsense for gay rights?
First of all, I must specially emphasize the relationship between “the judicial role” and “the social movement.” The gay rights movement in Taiwan has not late advocated the rights by the proceeding at law. On the one hand, the knowledge of law of homosexuals and gay rights organizations is not sufficient (this also is because legal scholars are not interested in and research on subjects of gay rights), when the homosexual right suffers violations, regardless of which are from the national authorities or the private organizations or companies, the homosexual victims under the dangerous consideration of “coming out” unavoidably stay silently. Therefore, they never become “cases in courts”. As you known, the judicature is “passive.” It takes no action as long as no one makes an accusation. When the homosexual victims are not willing to resort to the judicial way, the judicature usually not butts in the leeway. On the other hand, the gay rights activists usually do not trust the judicial department that is as part of the governmental authorities. I think this is not because the Constitution “does not matter", rather than the “constitution consciousness” never takes root in people's and political leaders’ hearts. For social movements, it needs actually some specific standards, and the courts sufficiently can decide the scopes and to provide or to change the standards. This is the reason that the gay rights activists in the United States and European countries focus on the approach continually.
Active judicialism on protection of fundamental rights in Taiwan
Article 7 of the Constitution of the Republic of China (Taiwan) clearly declaims rights of equality: “The citizens of the Republic of China, regardless of sex, religion, ethnicity, class, or party affiliation are all equal under the law.” However, differences of sexual orientation are not so proclaimed. It might be reasonable to assume that this list is only indicative, not exhaustive, and thus that “differences of sexual orientation” cannot justify differential treatment, and should receive the protection of the principle of constitutional equality.
According to the Constitution, the Justices of the Constitutional Court shall be above partisanship and shall maintain judicial independence, trying cases free from any interference. The power of the Justices consists of providing rulings on the following three categories of cases: (1) Interpretation of the Constitution; (2) Uniform Interpretation of Statutes and Regulations; and (3) Declaring the dissolution of political parties in violation of the Constitution. Regarding to the constitutional protection of gay rights, the most important contribution of the Justices is to build the standard of review on gender equality.
Discrimination on sexual orientation is discrimination on sex or gender
In interpretation No. 365 of the Constitutional Court, the Justices of the Constitutional Court clearly declared that no discrimination based on sex is to be allowed by the Constitution. However, there are two exemptions on “biological differences” and “differences in societal functions as the consequence of the biological differences.” I have argued in my book and other articles that discrimination on sexual orientation is discrimination on sex or gender. Since there are clear principle and standard of review in the interpretation of the Justices, I suggest that it is a very important and essential approach to access the Justices of the Constitutional Court for fighting gay rights. Few years ago, there was the first action brought by a celebrity before the Justices to challenge the constitutionality of marriage law but it failed in procedural issues. In my opinion, this is because that the social attitude toward gay people affects Justices to make their decisions and especially they do not have concrete and essential knowledge of homosexuality. Therefore, the litigant skills and social education are important for accessing judicial approach for fighting gay rights.
Affecting the Legislation of “Equality on Sex Education Act” and others
Another affect of the interpretations of the Justices is the legislation of the “Equality on Sex Education Act.” This is the first legislation to prohibit discrimination on sexual orientation in schools in Taiwan. This is probably the first legislation in Asian countries to prohibit discrimination on sexual orientation legally. I think the serial interpretations of the Justices on sex or gender discrimination have affected the public opinions and established the consciousness of sex equality in society.
MARITAL REQUIREMENTS IN CIVIL CODE AND OTHER SOCIAL DISCRIMINATIONS: HOW FAR THE ADMINISTRATIVE INTERPRETATIONAL DISCRETION CAN GO?
Unlike the United States and some European Countries, there is no legislation that is criminalized the homosexual sex activity or homosexuals themselves. There is also no tradition of discrimination “legally” on sexual orientation (there is a different situation in Hong Kong). Therefore, the administrative authorities in Taiwan actually can exercise their discretions within the scope which is without mentions in legislations. For instances, there are positive interpretations from administrative authorities on issues of family violence and labor rights. However, the major violations of gay rights are ironical from the administrative authorities. Therefore, how to declare violations of the constitutional rights from administrative authorities before the Constitutional Court is very essential and unavoidable.
LESSONS FROM TAIWAN: CONCLUDING REMARKS
I am sorry that I can not present more details about what I think of the approaches to protect gay rights in Taiwan and other Asian countries because of my illness. According to my observations on lessons from Taiwan, I hereby propose a dual-approach for different concerns.
I do not suggest to access legislative approach for fighting gay rights in Asian countries because there is no history of parliamentary politics to comprise issues of civil rights including gay rights. Most Asian countries are so-called “newly-born Western political and legal bodies.” The issues of civil rights are usually non-mainstream in national politics and they can not catch attentions of national politicians. They can be beautiful slogans in elections but never become political agendas. In other hand, most of Asian countries have the system of “judicial review,” no matter under German model or American model. The system of judicial review usually plays an important role in developments on democracy and protection of civil rights in Asian countries. There is also no legal tradition and history on discrimination of homosexuals. Therefore, I would like to suggest that gay rights activists in Asian countries fight for equality on social rights through the administrative approach, which are what I call “non-core gay rights.” For instance, rights on work places or other rights under the principle of non-discrimination. As regard to the central issues, like same-sex marriage, I suggest to access the judicial approach to control the arguments and areas of fighting.
About Maurice Hong-Cheng Chang
Mr. Chang obtained his first degree of Master of Laws at National Cheng-Chi University in Taiwan. After the obligatory military service, he worked as a law clerk for Justices of the Judicial Yuan, the Constitutional Court in Taiwan (2001-2003). In 2002, he revised and enlarged the master thesis in Chinese, thereafter it was published formally. The publication is the first book in Taiwan to discuss all the global major gay rights issues from a legal perspective, and describes the concrete approaches and agendas for the Taiwanese society. Due to comparative studies on opinions of the Supreme Court of the United States, European Court of Human Rights and the Human Rights Committee of the United Nations, Mr. Chang has resumed his studies in order to complete the research. On September 2004, he obtained the second degree of LL.M. at Leiden University in the Netherlands by submitting his thesis about gay rights in the military under EC law structure. He is doing researches now as a Ph.D. student on sociology of law at University of Milan since October 2004. His academic interests are to explore the relationship between law and contemporary social theory, particularly between law and culture, and to clarify the potential of law and legal thought for realizing or inhibiting “progressive” social changes. Among the issues that he will examine in his proceeding researches are the history and current state of legal recognition of same-sex partnership in Europe, the difference of legal culture in member states of European Union and its role in deciding which pattern to recognize same-sex partnerships, the portability of legal recognition of same-sex partnership under European legal system, the relevance to “non-western” or “developing” countries and predicting future developments in Europe and solutions for recognition of gay rights and same-sex partnerships in Chinese societies. He can be reached by E-mail: email@example.com.