Love prevails over place of origin

A guest post from Jose Alvares, a Macau SAR lawyer, about the recent court victory in Taipei over the recognition of a same-sex marriage

Hi there, reporting for duty here from Asia! Despite the still bleak outlook of the pandemic, we are occasionally greeted with some good news. In this case, a ruling from a Taipei court ordering the denied marriage registration of a same-sex couple as one of the applicants originated from a jurisdiction in which same-sex marriage was not allowed.

That jurisdiction?

The Macau Special Administrative Region, and thus I cannot help feeling a tad proud of this achievement by a fellow Macau SAR citizen Leong Chin-Fai (with his Taiwanese partner Ting Tse-yen, husband to be).

To understand this case, one needs to go back to the momentous victory achieved when the Constitutional Court in Taiwan declared in 2017 that the marriage law was unconstitutional as it did not allow for same-sex marriage, thus issuing an order to the parliament to make the necessary amendments within two years.

Despite the support of then (and still) president Tsai Ing-wen – since at least late 2015, uncommon for a major party presidential candidate at the time, it took parliament precisely two years to comply with the ruling. The law came into force on the very last day allowed under the ruling, 24 May 2019. The approved version of the law ended up giving equal rights to marriages of the opposite sex, but imposed some limitations namely concerning adoption for same-sex married couples.

Following the approval of the law, Leong and Ting went before the registration office and were denied the marriage registration on the basis that the applicable law to the establishment of the marriage is governed by the “national law” (meaning, the same-sex marriage would have to be allowed by the jurisdiction of origin of each applicant). In reality, that interpretation had already been disavowed by a court in Taipei back in March 2021 as non compliant with the Constitutional Court decision of 2017. However, in that case, the court ended-up siding with the registration office as the plaintiffs did not overcome another issue unrelated to the fact that they were a same-sex couple.

This most recent case of Leong and Ting is therefore the first time that the court directly ordered the registration office to register the marriage of a same-sex couple where one of the applicant’s jurisdiction of origin would not allow for such marriage. In any case, it was reported that the government in Taiwan was already working on the necessary amendments to the law so as to allow same-sex marriages even when one of the applicants’ national law does not allow it.
In the end, what this entails is that same-sex individuals can marry in Taiwan and benefit from all the rights associated with such marriage, though they will likely not enjoy the same rights in jurisdictions that do not recognize same-sex marriage. In fact, it is no different from other jurisdictions, where one can marry officially, but then might not have their marriage recognized in their country of origin.

This presents a superb opportunity for Taiwan to generate wedding tourism just like Las Vegas, where couples (of the same-sex or opposite) go to make their commitment to each other official, meanwhile supporting a myriad of local businesses. Taiwan could thus further capitalize on the already significant revenue derived from LGBTQ+ tourism – for example, the pre-Covid Pride parade (in October 2019) attracted an estimated 200,000 participants (though the number of those coming from overseas is unclear).

Beyond the business realm, while Taiwan remains the only place where same-sex marriage is allowed in Asia, the echo did sweep through the region. When the Constitutional Court’s decision came out, there was significant supportive internet chatter reported from mainland China.

Also, though the Central Government in China came out to say they would not take similar action to Taiwan, if you go to the English channel of the state-owned media CGTN, there are still several pieces dated of 2017 on LGBT in China (some even critical of the status quo!). In the Hong Kong SAR, the courts have been awarding very significant victories to same-sex couples, including granting spousal dependent visa and extending civil servant benefits to married same-sex couples in another jurisdiction (as in the HKSAR it would not be allowed).

Elsewhere in Asia, the governing junta in Thailand came out publicly backing same-sex unions, though they have yet to pass a law to that end, which is a shame given their thriving LGBTQ+ community – so much so, I even dare saying, they are a sort of regional capital for annual LGBTQ+ parties. In Japan, highly conservative in this regard as well, a court recently stated it is unconstitutional not to recognize same-sex marriages – the issue was that the court cannot force lawmakers to make the necessary changes and ended up not awarding any damages to the plaintiffs, which would have applied more pressure on the government.

The commendable part of this story is the grass roots efforts that have been driving change in the region, through individual cases being brought before the courts. In fact, there is an ever-growing support among the populations of the different regions in Asia for the recognition of LGBTQ+ rights, especially among younger generations.

Awareness remains the key to bring about change, as support then leads to pressure on legislators to effect change, rather than having to rely on the courts to boldly lead such initiative. Also, awareness allows for a smooth transition by avoiding radical changes that may upset social norms (as frustrating as they may be).

Meanwhile, I believe a note of sincere appreciation is due to Leong, Ting and all those that spend time and effort (and I have been fortunate to meet many) to push through change – truly, thank you!