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Why India Should ‘Look East’ At Taiwan For Inspiration On Upholding LGBTQI Rights

Taiwan's Constitutional Court just ruled in favour of same-sex marriage.

03/06/2017 8:52 AM IST | Updated 03/06/2017 8:54 AM IST
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October 29, 2016: Participants ride on a truck during the annual Taiwan lesbian, gay, bisexual and transgender pride parade in Taipei..

Taiwan took a definitive step towards same-sex marriage equality last week when its Constitutional Court ruled that the country's existing civil code was "in violation of both the people's freedom of marriage...and the people's right to equality."

Taiwan's Constitutional Court was hearing a petition filed by veteran gay rights activist Chi Chia-wei, backed by the Taipei city government, against the civil code's definition of marriage as a union between a man and a woman.

The country's first female president, Tsai Ing-wen, openly supports "equality in love."

The judgment has carefully reasoned arguments on rights and inclusion, especially in countering apprehensions about the effect that "gay marriage" would have on unions between members of the opposite sex. It states:

"...the freedom of marriage for two persons of the same sex, once legally recognized, will constitute the collective basis, together with opposite-sex marriage, for a stable society. The need, capability, willingness and longing, in both physical and psychological senses, for creating such permanent unions of intimate and exclusive nature are equally essential to homosexuals and heterosexuals, given the importance of the freedom of marriage to the sound development of personality and safeguarding of human dignity."

Chi has been challenging the marriage law in court for more than three decades—the first time, in 1986, he was even imprisoned under martial law after he asked the court to recognize gay marriages. His co-petitioner, the Taipei city government, has allowed same-sex partners to officially register their partnerships since 2015. However, this does not grant same-sex couples the same rights as heterosexual couples. Last year, a university professor reportedly committed suicide after he was not allowed to make medical decisions when his partner was in a critical condition or acquire his property after his passing. A legislator from the ruling Democratic Progressive Party (DPP) told the Taipei Times, "While many local governments accept household registrations from same-sex couples, it is just an executive measure that does not give them full legal rights."

Last year, I met LGBTI activist Jennifer Su at her political and LGBTQI-friendly café in Songshan district, Taipei. Su has gotten "married" to her partner three times now. She said, "My partner and I were the first to register in the Taipei city hall in June 2014 before it was even legal. And then in 2015, we participated in the united wedding of 118 heterosexual and same-sex couples conducted by the Taipei city government. After that, we had our own public wedding on the street with friends and family in November 2015, which was done in a very traditional Taiwanese way. But we are still not legal."

As high profile same-sex couples in India come forward to challenge the constitutional validity of Section 377, one can only hope that the Supreme Court delivers a similarly legally sound judgment...

Since the election of the DPP into power last year, the country has made slow but sure progress on equal marriage legislation. The country's first female president, Tsai Ing-wen, openly supports "equality in love." The protests sparked by the university professor's suicide last year spurred the government to go beyond conducting public opinion surveys on same-sex marriages—most people supported the idea—and actually push various versions of a bill to amend the civil code and recognize the right of people to love who they choose. The majority vote notwithstanding, the right to civil union (a basic human right) for members of a minority group or community should never have hinged on public opinion in the first place.

Taiwan is almost like Disneyland to queer communities and activists in Asia. For one, it hosts the largest queer pride parade in the continent, registering up to 75,000 people last year. Many hostels, hotels, restaurants and the entire "gay district" in the touristy Ximending market in Taipei are festooned with rainbow flags.

Contrast this with India where, let alone same-sex marriage equality, MPs have shown a shocking degree of opposition to even revising Section 377 of the Indian Penal Code which criminalizes same-sex relations. Our textbooks only speak in gender binaries; our adolescent sex education programmes don't even talk about sexuality; and a draft bill seeking to protect the rights of transgender persons fails to say a word about marriage and adoption.

At India's Universal Periodic Review before the UN Human Rights Council, the government refers to the pending curative petition at the Supreme Court on Section 377, but says nothing about the court's direction that the repeal of the law should come through Parliament.

As high profile same-sex couples in India come forward to challenge the constitutional validity of Section 377, one can only hope that the constitutional bench of the Supreme Court delivers a similarly legally sound judgment which upholds constitutional rights. The UN Office of the High Commissioner for Human Rights has said:

"The protection of people on the basis of sexual orientation and gender equality does not require the creation of new rights or specific rights for LGBT people. Rather, it requires enforcement of the universally applicable guarantee of non-discrimination in the enjoyment of all rights."

Is it too much to hope that India will get some inspiration from "looking east" at Taiwan?

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