A Same-sex Marriage that is Not the Same: Taiwan’s Legal Recognition of Same-sex Unions and Affirmation of Marriage Normativity

10 Pages Posted: 21 Nov 2019

Date Written: November 21, 2019

Abstract

On 24 May 2017, Taiwan’s Constitutional Court announced its decision on the constitutionality of the same-sex marriage ban, which rendered it unconstitutional for the Civil Code to deny same-sex couples the freedom to marry and gave the legislature two years to pass the proper legislation to protect such right and equality. One week before the deadline, the legislature passed a law to legalise same-sex marriage registration and to provide certain access to the substantive legal consequences of marriage under the name ‘Article 2 Relationship’. This paper analyses the newly-passed law, seeing it as the result of the interactions among social movements, the Court and the legislature, and reveals and criticizes marriage equality proponents' and opponents’ overlapping consensus on marital supremacy, the role of Civil Code marriage as the template for recognising same-sex relationships, and the pursuit of recognising same-sex parentage through marriage. It demonstrates that the ‘Article 2 Relationship’ is a problematic and flawed mimicking of the heterosexual marriage institution. It also argues that the legalisation of same-sex ‘step-parent adoption’, while facilitating the recognition of some same-sex parentage, reinforces the norm of ‘parentage through marriage’ that disadvantages non-marital same-sex and heterosexual parents and their children.

Suggested Citation

Chen, Chao-Ju, A Same-sex Marriage that is Not the Same: Taiwan’s Legal Recognition of Same-sex Unions and Affirmation of Marriage Normativity (November 21, 2019). Australian Journal of Asian Law, Vol. 20, No. 1, Article 5, 2019. Available at SSRN: https://ssrn.com/abstract=3491032

Chao-Ju Chen (Contact Author)

National Taiwan University ( email )

1 Sec. 4, Roosevelt Road
Taipei 106, 106
Taiwan

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