Relevant articles of the International Covenant on Civil and Political Rights (ICCPR): Articles 2, 7, 23, and 26
Presented by Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR)
14 October 2020
The Taiwan Alliance to Promote Civil Partnership Rights ("TAPCPR") was founded in 2009. We are a professional advocacy group promoting gender equality and human rights, and played a key role in bringing about Taiwan's legalization of same-sex marriage.
The TAPCPR devotes long-term attention and efforts to gender issues and to related rule of law education. Among the issues we are currently focusing our efforts on are: transnational same-sex marriage, anti-discrimination, trans rights /gender self-identification, and protections for unmarried families.
In 2017, the TAPCPR's lawyer team represented Chi Chia-Wei and won the marriage equality case (“Judicial Yuan Interpretation No. 748”), making Taiwan the first country in Asia to legalize same-sex marriage. We continue to strive for marriage equality, rights to diversified family formation, and LGBTI anti-discrimination in Taiwan through legislative, judicial, and social advocacy, lobbying, and policy monitoring. Our professional lawyer team also offers free legal counseling for LGBTIQ people, and provides pro bono legal representation on public interest litigation involving significant gender rights issues.
TAPCPR website｜ https://tapcpr.org
Contact TAPCPR｜[email protected] ; +886-（02）2932-1292
*This report was authored by Victoria Hsu (Co-founder of TAPCPR, Attorney-at-law) and Allison Hsieh (Legal manager of TAPCPR, Attorney-at-law) , translated by Paul Cox (Head of Translation at Winkler Partners).
TAPCPR Shadow Report
1. A legal gap in marriage equality: marriage rights for transnational same-sex couples
(1) Taiwan put into force the Act for Implementation of J.Y. Interpretation No. 748 on 24 May 2019, permitting same-sex couples to register their marriage. However, under the Judicial Yuan and Ministry of the Interior's interpretation of current Taiwan law (specifically, of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements), if one partner in a same-sex couple is from a country where same-sex marriage is not yet legal (even including a country that has a same-sex civil partnership system under a name other than "marriage," such as Switzerland and Hungary), that couple cannot register a marriage in Taiwan. Such couples are consequently also denied other rights and protections arising from marriage, such as the right to apply for residency and to adopt children of their partner. This is a clear inadequacy in legal protection for transnational same-sex couples, and constitutes overt discrimination on the basis of nationality and sexual orientation.
(2) A different issue arises in cases in which the partners of a same-sex couple are from China and Taiwan respectively. Under current Taiwan law (the Act Governing Relations between the People of the Taiwan Area and the Mainland Area), such a couple in theory should be allowed to directly register a same-sex marriage in Taiwan. But actually doing so is hindered by current administrative provisions (which require that the partners in a marriage between a Chinese and a Taiwan national first register their marriage in China, before coming to Taiwan for a marital interview at the airport). Chinese nationals are thus left without any avenue to apply for entry to Taiwan on the basis of a same-sex marriage. In practice, this precludes the possibility of a Chinese-Taiwanese same-sex couple legally marrying in Taiwan.
(3) Regarding the infringements of the legal rights of freedom and equality of marriage for transnational same-sex couples described above, the Executive Yuan and the Judicial Yuan (which is the competent authority for the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements) have so far each been looking to the other to address the matter. Although the Judicial Yuan has outsourced research on these issues, no specific proposals have yet been advanced. The TAPCPR recommends that the Independent Group of International Experts ask the Executive Yuan and the Judicial Yuan to give specific responses stating their views and the status of progress on handling the transnational same-sex marriage issues.
2. Transgender rights
(1) Taiwan's government authorities have not yet drafted a bill for a gender recognition law, so a legal basis is lacking for gender recognition and gender change. A longstanding administrative order forces any transgender person who wishes to change their legal gender to submit certificates from two psychiatric physicians and undergo surgery to remove the sex organs, seriously injuring transgender people's bodily health, integrity, and autonomy.
(a) The aforesaid administrative order effectively requires anyone who wishes to change their gender to undergo surgical sterilization, severely infringing transgender people's rights to bodily integrity and selfdetermination. This constitutes torture under Article 7 of the ICCPR. It runs counter to the International Experts' Recommendation 72 in the 2017 Review of the 2nd Reports on the Covenants, which says: "With respect to transgender persons the Committee recommends, however, that the Government provide for explicit legal recognition of their freely chosen gender identity, without unnecessary restrictions." And it contravenes the position that "gender identity is a basic human right and that it is not necessary to force or require extirpation of reproductive organs" in the Conclusions and Recommendations of the Review Committee in the 2014 Review of Taiwan’s Second Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 4
(b) Additionally, current practice in Taiwan's household registration system still compels people to register as either male or female, without any other gender options (indeterminate, intersex, or third sex). The current National Identification Card also compels the individual to disclose their gender on the face of the ID. The Ministry of the Interior in recent years is making moves toward launching new electronic chip IDs (eIDs), and intends to remove the gender field from the face of the eIDs (and instead store the gender information inside the chip, so that it can be accessed only with an electronic card reader). However, even setting aside the controversy that has arisen over privacy issues with the planned eID cards and considering only the gender issue, even if the gender field were removed from the face of the eID cards, as long as the current ID number system continues to be used, anyone will still be able to tell the gender of a person simply by looking at the ID number on the face of their eID card, because initial numerical digits of 1 and 2 in the ID number indicate "male" and "female" respectively. So the planned eID card will not in fact achieve the goal of protecting gender privacy. These issues and plans all demand further examination.
(2) There is still much room for improvement in the availability of genderfriendly spaces in schools:
(a) As of 2019, Taiwan had a total of 152 higher education institutions (junior colleges, colleges, and universities). By 2018, 96 of these institutions had gender-friendly restrooms on campus. From these available statistics, we can infer that only around 63.16% of Taiwan's higher education institutions currently have made gender-friendly restrooms available. This quantity is insufficient. The Ministry of Education should also further specify what is meant by its statistic that "96 higher education institutions have gender-friendly restrooms." How many genderfriendly restrooms are there on each campus, and where are they located? (For example, is there a gender-friendly restroom in each building? On each floor? Is there in fact an adequate number of gender-friendly restrooms?)
(b) In addition to addressing the facilities in higher education institutions, it would be helpful to ask the Ministry of Education to clear up the question of the availability of genderfriendly restrooms in primary and secondary schools, especially for the compulsory education grades. Do these schools have sufficient gender-friendly restrooms for use by transgender students?
(c) Beyond gender-friendly restrooms, the issue of dormitory accommodations for transgender students also deserves examination. At present, all of Taiwan's higher education institutions continue to use the gender binary classification of either male or female. In the minority of schools that have "coed" or "gender-friendly" dorms, those dorms usually are merely male and female dorms on separate floors of the same building. Consequently, transgender students who have not changed their registered gender are inevitably compelled to live in a dormitory of a gender with which they do not identify, causing heavy physical and emotional stress. Or, they are forced to pay an extra cost in time, money, and effort to find and move to their own accommodations off-campus. On the issue of dormitory accommodations for transgender students, the Ministry of Education should draw up specific guidelines, and allocate necessary resources and assistance, to enable schools to make appropriate arrangements to meet the needs of their transgender students.
3. Rights of Intersex People The government authorities have not yet enacted adequate legislation to protect intersex minors' right to self-determine their gender identity:
(1) Taiwan today still uses a household registration system to manage citizens' identities, and compels people to be registered under the binary classification of either male or female, with no other available gender options (e.g., unspecified, third sex, or intersex). The result is invariably that before intersex minors are able to express and selfdetermine their gender identity, their parents or legal guardian will have determined and registered their gender for them, undermining intersex minors' rights and interests.
(2) We strongly believe that medically unnecessary surgeries on intersex children are human rights violations. The Recommended Principles regarding medical corrective surgery of intersex minors issued by Taiwan's Ministry of Health and Welfare in 2018 state that medical corrective surgery in principle is not suitable for intersex minors under the age of 12, and that evaluation by a professional team should precede any decision on whether to implement surgery for an intersex minor aged 12 or above. However, those Recommended Principles lack legal enforceability and they fail to define specifically what is meant by a key phrase, "the best interests of the patients from a health perspective." The Ministry of Health and Welfare furthermore does not appear to have set up any mechanism for tracking or auditing the implementation of the Recommended Principles. To ensure the Principles are implemented, it is recommended that the Ministry of Health and Welfare specifically describe the status of implementation of the Principles in medical practice, and publish relevant statistics such as the rates of medical corrective surgeries, and the substance of the surgeries, undergone by intersex minors before and after the issuance of the Principles.
4. Continued Need for Enactment of an Anti-Discrimination Act (Equality Act) The government has not yet enacted a comprehensive anti-discrimination act. Anti-discrimination provisions remain scattered among various laws, giving rise to the following issues:
(1) Relegating anti-discrimination provisions to scattered articles of various laws inevitably limits the regulatory scope of such provisions to specific domains, missing the forest for the trees. For example, provisions against gender discrimination are found primarily in labor and education laws, while sexual harassment in general is addressed in the Sexual Harassment Prevention Act. There remains a lack, however, of binding positive provisions to cover discriminatory treatment by sex/gender in diverse realms such as rental, commerce, and services. 7
(2) While hate speech involving sexual harassment is covered by the Sexual Harassment Prevention Act, and hate speech involving insult or intimidation of an individual is punishable under the Criminal Code, Taiwan's laws currently fail to provide any mechanism for controlling discriminatory speech that incites discrimination, hate, or violence against groups on the basis of gender, sexual orientation, gender identity, nationality, ethnicity, or religion.
(3) Taiwan today still lacks legislation specifically addressing hate crime (which in practice is just treated as ordinary crime), and there is also a total lack of official statistics on hate crime. Consequently, it is difficult to get a clear picture of the extent and ways in which hate crime may be manifesting in society and how to strive for improvement. It is recommended that the government take a serious look at this issue and come up with a concrete policy to address it.