National Taiwan University Law Review
Same-sex Marriage in Taiwan, Marriage Equality, Incrementalism, Substantive Equality, Beyond Marriage
Taiwan’s legalization of same-sex marriage is an event of international importance concerning the rights of LGBTQ+ individuals and partners; further, it constitutes an opportunity to examine the state of LGBTQ+ equality in Taiwan and elsewhere. To this end, through theoretical and comparative lenses, this Article asks what equality for LGBTQ+ means and what comes after marriage. It offers perspectives on the past, present, and future of the intersection of same-sex marriage and equality. Looking at the path to same-sex marriage in Taiwan, the Article argues that the Taiwanese Constitutional Court’s ruling legalizing same-sex marriage maintained a line between domesticated liberty for LGBTQ+ people, on the one hand, and limits on that population’s liberty to form families, on the other. The law that implemented the ruling kept this tension; hence, it enfolds discrimination against LGBTQ+ individuals, especially in the area of family formation. But Taiwan is not exceptional in holding onto parentage discrimination after legalization of same-sex marriage. The European perspective teaches that discrimination in parentage remains after legalization but disappears over time. Experience from elsewhere also clarifies that the fight for equal parental rights can be difficult, and that much opposition to LGBTQ+ equality is embedded in biases related to LGBTQ+ parenting and in racism. Finally, moving to explore future paths to parity, the Article contends that, for various reasons including those indicated above, marriage cannot serve as the final frontier of LGBTQ+ equality. Substantive equality in Taiwan requires, at the least, the repeal of adultery as a grounds for divorce and for civil remedies. A broader view of equality and autonomy also warrants adopting a regime in which marriage is not the only mechanism to access rights and benefits that are linked to relationships of interdependency. Likewise, creating more options for legal recognition of relationships is imperative for individuals in diverse types of relationships, and for LGBTQ+ individuals in particular. Lastly, the Article suggests that discrimination that currently exists in the area of obligations toward parents-in-law has a liberating aspect. The Taiwanese experience is a teaching moment for LGBTQ+ movements and scholars around the globe. It calls on other scholars to avoid generalizations in framing paths to liberty and equality by being sensitive to local differences, and to reconsider the place of marriage as the golden standard of LGBTQ+ equality.
Erez Aloni, "First Comes Marriage, Then Comes Baby, Then Comes What Exactly?" (2020) 15:1 National Taiwan National Taiwan U L Rev 49.