As Taiwanese-Singaporean couple Little C and Mei Ping entered the first court room of Taipei’s High Court on Tuesday, with their child in tow, Judge Chang Yu-feng 張瑜鳳 gave her condolences for their strife. Although Taiwan passed marriage equality laws over a year ago, for this family, the chance of a regular legally-settled life remains out of reach, as they—and other transnational couples—still struggle due to a particular legal obstacle that prevents them from officiating their union.
For Little C and Mei Ping the battle is not only for legal recognition of their relationship, this obstacle means that their 18-month-old daughter is only legally recognized as related to Little C. Even though the couple are married in Australia, unless they are allowed to marry in Taiwan, there is no route for Mei Ping to be legally recognized as her parent. In a press conference following the hearing on Tuesday Little C posed a simple question: if something should happen to her, what would become of her daughter?
Taiwan is currently the only country where nationality-based preclusions are in place regarding same-sex marriage law.
May 17 marked the first anniversary of a landmark vote that led Taiwan to become the first country in Asia to legalize same-sex marriage when Legislators passed a tailored act which granted many same-sex couples equal marriage rights.
The act was triggered by the ruling that preventing two people of the same gender establishing “a permanent, exclusive relationship for the purpose of pursuing a common life” was unconstitutional, as made by the Constitutional Court in 2017.
The historic judgment came despite the rejection of marriage equality in referendums toward the end of 2018. The public voted to retain the definition of marriage as a union between a man and a woman. Judicial Yuan Secretary-General Lu Tai-lang 呂太郎 nevertheless shortly after declared that the Constitutional Court holds the highest rule of law, and its verdicts cannot be overturned.
It remains, however, that marriage equality in Taiwan is not equal for all. Current laws only permit cross-national marriages if the non-Taiwanese partner is from a country where same-sex marriage is already legal.
According to the implications of Article 46 of the Law Governing the Application of Laws to Civil Matters Involving Foreign Elements, same-sex marriage must be permitted by domestic law in the foreign party’s country of origin, otherwise they do not have the right to marry a Taiwanese citizen of the same sex.
Little C and Mei Ping had attempted to register their marriage at the Taipei Songshan District Household Registration Office last year. Their application was rejected due to same-sex marriage being illegal in Singapore. They filed an administrative appeal to the Taipei High Court after they had a lawsuit on the matter rejected.
On Tuesday, the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) lawyers presented the High Court with two solutions to the current problem. The first was that judges could use Article 8 of the same law—which states that foreign law is not applicable when used in tandem if it violates goodwill and public order in Taiwan—to counteract Article 46.
The second was that although Article 46 appears to be a neutral law by way of not specifically mentioning “same-sex marriage”, its application leads to systematic discrimination against same-sex partners as a result of marriage between opposite-sex partners being legal in every country.
This therefore violates the right to equality and freedom of marriage for same-sex partners, as guaranteed in Taiwan’s constitution, and as a result should be suspended, the lawyers said.
The second solution would require a constitutional interpretation.
Activists and couples outside the Presidential Palace on May 17. (Credit: TAPCPR)
Little C and Mei Ping are not alone in their fight, and for some transnational couples the COVID-19 pandemic is exacerbating an already painful situation.
On the anniversary of same-sex marriage legalization, May 17, TAPCPR and the Taiwan Transnational Marriage Equality Alliance, among other civic groups, organized a demonstration on Ketagalan Boulevard, urging the government to fix the issue. Demonstrators constructed a “Lennon Wall,” where vestiges of long-term relationships—that included ticket stubs, photographs, and letters—were attached to show that transnational same-sex partnerships are serious and valid, if not yet legal in Taiwan.
At a press conference during the event, TAPCPR expressed that current restrictions have failed hundreds of cross-national couples, with the lack of legal foundation for their relationships forcing them apart. Taiwanese national Lai Kai-li 賴凱俐 and her Malaysian partner, Tan, are one couple trying to overcome such difficulties. At the conference, Lai said Tan, at age 35, was forced to register as a university freshman to stay in the country.
Tan is due to graduate next month and initially wanted to apply to work as a tour guide, Lai said. Due to an injury, however, she will not be able to work. Instead, she enrolled for a Master’s program, but is worried that if her injury still remains upon finishing the program, she will have no choice but to return to Malaysia.
With the current travel restrictions, transnational couples are facing even more serious challenges to remain together.
Guzifer and his partner, Shinchi Ting. (Courtesy of Guzifer Leong)
Some have been more lucky in the short term. Guzifer Leong, who is a citizen of Macao, told Ketagalan Media that he was able to attain a H169 Visa, which allows nationals from Hong Kong and Macao to remain in Taiwan for up to two years after they graduate from a national university program.
Others have not been so lucky. One individual, who asked to be referred to as Swatchx, told Ketagalan Media that her partner of over 20 years, Kitty, has had to remain in Hong Kong due to the pandemic. Swatchx is a Taiwanese international business owner and her partner had been living in Taiwan on a tourist visa since they met. Kitty returned to Hong Kong just before Taiwan closed its borders.
“She is truly Taiwanese, in her heart,” Swatchx said. “Over the past 20 years we have spent a lot of money for her to go to Hong Kong and back every six months because we cannot get married. But our life is here, not in Hong Kong.”
(Courtesy of Lois and Cecilia)
The situation is even more complicated for Lois, a Taiwanese national who has a 3-year-old son with her Chinese wife Cecilia. The two were married in the U.S. but returned to Asia for work. In 2017, Cecilia gave up her job in China to move to Taiwan on a student visa. She is currently in China with their son, unable to return to Taiwan due to the pandemic.
“If our marriage was recognized, Cecilia still would have been able to return after January 26, as the travel restrictions did not apply to Chinese spouses,” Lois told Ketagalan Media. “I’m disappointed in the government, I thought the marriage issue would have been resolved within a year.”
Cecilia’s student visa is due to expire in 2021 and Lois said the two are extremely anxious about the situation. “We currently see our only option as to rely on a “dependents” visa, which would give Cecilia the right to stay in Taiwan for up to 183 days each year, but what kind of life would this be for our child, and how would [Cecilia] be able to maintain a stable job?”
Chinese nationals with a blood-related child holding Taiwanese nationality are entitled to reside in Taiwan for two three-month periods per year, according to immigration law.
Lois said despite her worries, she truly believes that the Tsai administration supports equality and that the obstacle will be overcome eventually.
Public support has certainly been thrown behind the cause. A fundraising campaign titled “SEA You Soon” organized by TAPCPR has exceeded its NT$4 million goal. A music video collaboration between Malaysian artist Fish Leong 梁靜茹 and Taiwanese singer Eve Ai 艾怡良 released on the same day as the campaign was initiated has racked up over 3 million views on YouTube.
Additionally, a petition put forward by TAPCPR reached 13,500 signatures on May 16, and included support from human rights organizations in Japan, South Korea, Malaysia, Thailand, Nepal, the U.S. and India. The group also issued a separate plea to multiple government departments, and said it has received correspondence from the National Immigration Agency, the Department of Household Registration, and the Mainland Affairs Council.
The group says the opinions of each government branch have been made clear, and none have directly opposed instituting an official form of recognition for cross-national marriages. They have stated it is a matter that needs to be resolved through the amendment of laws and cross-departmental communication, and since the opinions of each department are not identical, it is up to the government to reach a decision and implement relevant policies.
As for Little C and Mei Ping’s case, on Tuesday in court Judge Chang observed that matters that require constitutional interpretation take an average of three years to handle, so it would be quicker and easier for the legislature to amend relevant acts. She also wished the family well and expressed sympathy toward their situation.
Although a decision is yet to be reached, TAPCPR lawyers are now pressing for a resolution using their proposal that the current law requiring same-sex marriage to be legal in the country of origin for both parties is discriminatory. The group hopes a ruling in the couple’s favor would open the door to more successful cases in the future.
The group added that a favorable ruling would drive the force of change needed in Taiwan’s administrative and legislative organs, so transnational same-sex couples can marry as soon as possible and live their lives with necessary legal protections.
Such a ruling would bring peace of mind to all the aforementioned couples, and take Taiwan another step toward recognizing true marriage equality.