With respect to disputes about the legality of same-sex marriage, the views reflected in previous court decisions (e.g., the 103-Pan-521 Administrative Decision of the Supreme Administrative Court, the 102-Su-931 Administrative Decision of the Taipei High Administrative Court, and the 89-Jia-Kang-156 Civil Ruling of the Taiwan High Court) or in circulars issued by administrative agencies (e.g., the Fa-Lu-10603504630, Fa-Lu-10203506180, Fa-Lu-10103103830, (83)-Fa-Lu-Jueh-17359 and (83)-Fa-Lu-05375 circulars from the Ministry of Justice) all held that the marriage under the Marriage Chapter of the Family Part of the Civil Code should be limited to the union of “one man and one woman” for the purpose of living together forever rather than same-sex union. In other words, since same-sex marriage was not allowed by nature according to the laws, it was hard to conclude same-sex individuals could apply for marriage registration. Meanwhile, the practical views also held that relevant provisions of the Civil Code did not contravene the International Convention on Civil and Political Rights and were not unconstitutional since they fell within the remit of legislation. However, after Judicial Yuan Interpretation No. 748 (“J.Y.Interpretation No. 748”) was rendered by the Council of the Grand Justices, the above conventional views have been effectively overturned. The current status of same-sex marriage protection in Taiwan after J.Y. Interpretation No. 748is further discussed below.
1. Y.Interpretation No. 748:Unconstitutionality of the Civil Code for failure to protect same-sex marriage
The Council of Grand Justices of the Judicial Yuan rendered J.Y.Interpretation No. 748 on May 24, 2017, holding that, in contrast to past practical views, the provisions under Chapter 2 (Marriage) of Part IV (Family) of the Civil Code fail to allow two same-sex individuals to establish an intimate and exclusive relationship of permanent union for the purpose of living together and contradict the gist of protecting the people’s freedom of marriage under Article 22 of the Constitution of the Republic of China (Taiwan)(“Constitution”) and the people’s right to equality under Article 7 of the Constitution within this scope. To wit, the provision that marriage shall be limited to the union relationship between one man and one woman under the current Marriage Chapter of the Civil Code should be unconstitutional. In addition, to concurrently address the complexity and controversy of legislative deliberations on this matter and avoid legislative delay, J.Y.Interpretation No. 748 requires relevant agencies to complete the revision or formulation of relevant laws pursuant to the gist of the interpretation within two years after its promulgation date and indicates the required contents and format of relevant laws as amended or formulated.
The Reasons forJ.Y.Interpretation No. 748 state: “In case legal revision or formulation is not completed within the required period, two same-sex individuals seeking to form an intimate and exclusive relationship of permanent union for the purpose of living together may apply to a household registration office for marriage registration by presenting a written submission signed by at least two witnesses pursuant to the Marriage Chapter, and the two individuals seeking such registration shall have an effective spousal relationship between themselves under the law and may exercise rights and assume obligations as spouses.”If the legal institution for same-sex marriage is not completed within the period, two same-sex individuals may register their marriage on their own and become legally effective spouses. Therefore, when relevant laws are being amended or formulated, it appears that the “intimate and exclusive relationship of permanent union for the purpose of living together” between two same-sex individuals should be regulated as “marital/spousal relationship.”
The Reasons for J.Y. Interpretation No. 748 also indicate that the manners (such as revision of the Marriage Chapter, creation of a dedicated chapter under the Family Part of the Civil Code, the formulation of a special law or other formats) in which two same-sex individuals may form an intimate and exclusive relationship of permanent union for the purpose of living together to achieve equal protection of freedom of marriage fall within the remit of legislation. Therefore, any legislative (amendment) means such as revision of the Marriage Chapter of the Civil Code, creation of a dedicated chapter within the Family Part of the Civil Code, or the formulation of a dedicate law would be allowed.
On such basis, J.Y. Interpretation No. 748 indicates that not only the Civil Code is unconstitutional for failure to protect same-sex marriage but also legal formulation or amendments shall be completed within two years after the promulgation date of the interpretation. In addition, the legal effect in case of failure to do so within the period is also regulated. Since the position taken is very different from that taken by the court or administrative agencies in the past, this is indeed a major shift in practical opinions in Taiwan.
2. Current status of same-sex marriage protection during the two-year period after the promulgation date of Y. Interpretation No. 748
Although J.Y. Interpretation No. 748 recognizes that same-sex marriage shall be legally protected, it also requires relevant agencies to complete the formulation or revision of relevant laws in two years. This calls into question the status of same-sex marriage protection during such two-year period.
In this regard, the Taipei High Administrative Court specifically indicated in its 104-Su-83 Decision that although the household registration office had rejected the application to register a same-sex marriage by two same-sex individuals on the ground that “same-sex marriage is not an appropriate marriage under the Civil Code since a lawful marriage under the Civil Code involves the union of ‘one man and one woman’ for the purpose of living together forever,” still since the provision concerning marriage under the Civil Code which excluded theformingof the union by two same-sex individualsfor the purpose of living together forever had been declared unconstitutionalby J.Y. Interpretation No. 748, such rejection shall be reversed for illegality (unconstitutionality). The court also indicated, however, that since the law which “allows two same-sex individuals to form an intimate and exclusive relationship of permanentunion (i.e., same-sex marriage)” has not been legislated yet, not to mention that J.Y. Interpretation No. 748 has not been promulgated for two years, either, relevant marriage registration applications currently still have no legal basis.
The Taipei High Administrative Court also found in its 104-Su-81 Decision that the current marriage provisions under the Civil Codeare based on the union relationship forged between “one man and one woman” to live together forever and do not regulate the relationship of same-sex marriage. Therefore, an administrative agency has no legal basis for handling the registration of same-sex marriage prior to legislation or legal revision. In addition, J.Y. Interpretation No. 748 provides that the legislature shall complete the legislation (legal revision) within two years after the promulgation date of the interpretation. A state of unconstitutionality and inadequate regulation exists before the legislature completes its obligation. Under the principle of separation of government powers, such a state requires the legislature to fill the legal void by exercising its legislative power. In the absence of legal basis, it is certainly difficult for administrative agencies to elect to register marriage.
Therefore, although the relevant provisions in the Marriage Chapter of the Civil Code have been declared unconstitutional during the two-year period after the promulgation of theJ.Y. Interpretation No. 748, still there is no legal basis for handling the registration of the marriage between two same-sex individuals since the legislation or legal revision has not been completed. This is the current status concerning the protection of same-sex marriage in Taiwan. Two same-sex individuals may not register their marriage, create a legal spousal relationship in Taiwan and exercise the rights and obligations as spouses until relevant legislation (legal revision) has been completed by the legislature or such a two-year period has elapsed when the legal revision is still not completed.
3. Annotation of same-sex couples
If the same-sex marriage system is not yet institutionalized within two years after the promulgation date of J.Y. Interpretation No. 748 where a household registration office still has no legal basis for registration, two same-sex individuals may, according to the Ministry of the Interior, apply for the annotation of same-sex couples first in order to carry out the gist of protecting same-sex marriage. Although cross-district same-sex couplesannotation has been deregulated and the Household and Conscription Information System has been added with the item of “same-sex couples,” which may be added, amended and deleted in different places and will not be deleted due to household migration, and the system can further verify if there is any repetitive annotation (the Tai-Nei-Hu-1060420398 Circular of June 7, 2017 from the Ministry of the Interior), still such annotation is currently only for the reference of household registration personnel in handling relevant services, is not shown in household certificate transcripts or household certificates and has no legal effect (the Tai-Nei-Hu-1050404714 Circular of March 11, 2016 from the Ministry of the Interior).
Although same-sex couples annotation currently has no legal effect, still a same-sex couple may use such annotation as proof to obtain the identity as a family member pursuant to Article 1123, Paragraph 3 of the Civil Code (the Fa-Lu-10503510300 Circular of June 29, 2016 from the Ministry of Justice) and thus falls within the scope of the “family members” defined under Article 20 of the Act of Gender Equality in Employment and are governed by the “family care leave” (the Lao-Dong-Tiao-4-1050131862 Circular of August 23, 2016 from the Ministry of Labor). In addition, if same-sex couples meet the requirements under the Guidelines for Communicating Surgery and Anesthesia and Obtaining Patients’ Consent by Medical Institutions (e.g., related persons to the patients, i.e., related persons who are specially close to the patients such as cohabitants and bosom friends), already they can sign a letter of consent for surgery on behalf of the patent who cannot do so (the Wei-Bu-Yi-1030132873 Circular of November 17, 2014 from the Ministry of Health and Wealth). If same-sex couples annotation documentation issued by a local government is presented to sign the letter of consent on behalf of the patient who cannot do so in person, the medical institution should not differentiate the handling of such matter by considering if such documentation is issued by the local county (city) government for the place where the institution is located (the Wei-Bu-Yi-1051667240 Circular of October 18, 2016from the Ministry of Health and Wealth). To wit, such annotation may serve as a proof of the “related person” within the meaning of Articles 63 through 65 of the Medical Care Act (the 104-Su-81 Decision of the Taipei High Administrative Court).
Therefore, before same-sex marriage is institutionalized, two same-sex individuals may apply to annotate same-sex couples. Although such annotation has no legal effect, still it may serve as supporting documentation for family care leave and related persons under the Medical Care Act.
4. Agreement between employer and employee on terms of labor more favorable to those stipulated under laws and regulations
If same-sex marriage is not institutionalized in two years after the promulgation date of J.Y. Interpretation No. 748, two same-sex individuals still cannot register their marriage and establish a legal spousal relationship. However, if an employer is willing to apply a standard more favorable to that under laws and regulations to the terms of labor and apply the provisions concerning spouses under relevant laws and regulations to employees with same-sex couples, such agreement should be valid since the labor laws and regulations in Taiwan regulate the minimum terms of labor. For example, Taipei City Government has granted funeral leave, marriage leave and paternity leave on terms more favorable to those under laws and regulations to employees to whom the Regulations of Leave-Taking of Workers apply and who have annotated their same-sex couples in the Household Registration Information System (the Lao-Dong-Tiao-4-1040132431 Circular of November 19, 2015 and the Lao-Dong-Tiao-4-1060131416 Circular of July 11, 2017 from the Ministry of Labor; and the Fu-Shou-Ren-Kao-10530208400 Circular of April 7, 2016 and the Fu-Shou-Ren-Kao-10607378600 Circular of July 28, 2017 from Taipei City Government).
In conclusion, although J.Y. Interpretation No. 748 has changed the practical views of same-sex marriage in Taiwan and specifically indicated that the current Civil Code is unconstitutional for failure to safeguard same-sex marriage, still same-sex marriage is not institutionalized. Two same-sex individuals cannot register their marriage in Taiwan until relevant laws are formulated or amended by the legislature in two years after the promulgation date of the J.Y. Interpretation No. 748 or the two-year period has expired when the legislature has not completed such legal amendment. Therefore, currently two same-sex individuals can only apply for same-sex couple annotation first. Although such annotation has no legal effect, still it may serve as supporting documentation for family care leave and the related persons under the Medical Care Act. In addition, an employer may also agree with an employee on terms of labor more favorable than those under laws and regulations and apply the provisions concerning spouses under relevant laws and regulations to employees with same-sex couples.