Even as Chinese netizens are singing the song "Take a trip to Taiwan in 2035" which has gone viral in mainland China, humming about sightseeing in Penghu and Alishan, Taiwan’s Mainland Affairs Council (MAC) on 5 December dropped a bombshell: it is drawing up changes to the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (the “Cross-Strait Act”), to include mainland Chinese in its laws on same-sex unions.
In May 2019, Taiwan passed its first same-sex marriage law, becoming the first region in Asia to legalise same-sex marriage. However, cross-border same-sex unions only applied to citizens of countries or regions where same-sex marriages were legal, such as the US and UK.
In January this year, Taiwan’s Judicial Yuan passed amendments to the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, allowing same-sex unions in Taiwan as long as one party was Taiwanese. However, in view of the Cross-Strait Act, the amendments did not include same-sex unions involving mainland Chinese, so that same-sex partners from Taiwan and mainland China could not legally register their union.
Taiwan’s amendments to the law
In May 2020, one year after the passing of the same-sex marriage law, Taiwanese non-governmental advocacy organisation Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) revealed that most couples who approached them for legal advice were same-sex couples involving partners from Taiwan and mainland China, Hong Kong and Macau.
In an interview on BBC’s Chinese website, the TAPCPR said the Taiwanese government has already determined that there is a legal basis for cross-strait same-sex unions, namely the Cross-Strait Act, which applies to heterosexual cross-strait unions; the only thing lacking is an administrative package. However, given the current frosty cross-strait political environment, it is impossible to implement cross-strait same-sex unions. Hence, the Taiwanese government decided to clear the hurdles for implementation with all other regions before executing it in one go, leading to its delay.
In other words, mainland Chinese can get legally married to their same-sex Taiwan partners if they go to Taiwan.
Just as cross-strait same-sex partners thought legal unions were out of reach and felt that they were sacrificed in the political tussle, the MAC announced its amendments to the Cross-Strait Act; henceforth, provisions of the foreign elements law “shall apply for civil matters involving the mainland area, unless otherwise provided in this act”.
Article 46 of the foreign elements Act Governing the Choice of Law in Civil Matters Involving Foreign Elements says: “The formation of a marriage is governed by the national law of each party. However, a marriage is also effective if it satisfies the formal requisites prescribed either by the national law of one of the parties or by the law of the place of ceremony.”
In other words, mainland Chinese can get legally married to their same-sex Taiwan partners if they go to Taiwan.
In fact, as early as 21 February 2019, MAC deputy minister Chiu Chui-cheng said: “It cannot be that gay people around the world can marry their Taiwan partners, while partners in mainland China, Hong Kong, and Macau are treated differently.” He added that the authorities will respect human rights in a fair and unbiased study of measures to be taken.
In an interview on 7 December, Chiu said the amendments covered areas of gender equality, children’s welfare, intellectual property rights and emerging business models, in order to safeguard the rights and safety of people on both sides of the Taiwan Strait. The amendments are many, so that the foreign elements Act is used for all clauses relating to civil matters.
As for external concerns that legalising cross-strait same-sex unions might lead to security risks such as coming to Taiwan under the guise of fake marriages, Chiu said a comprehensive administrative process has to be in place, as well as enhanced management including mechanisms for interviews, reviews and migration control.
Mainland China netizens say on Weibo that Taiwan allowing cross-strait same-sex unions is a bargaining chip and strategic move in the reunification tussle, aimed at the gay community in mainland China.
Netizens across the Taiwan Strait take aim at each other
As for the reasons for amendments, the official explanation from Taiwan is that civil law relations and categories between the two sides of the Taiwan Strait are becoming more and more complex, and are far different from the legislative environment 30 years ago when the laws were drawn up; hence the civil affairs clauses in the Cross-Strait Act are no longer sufficient to meet the needs of the current times.
This reason sounds natural and logical. In any case, objectively it is good news for cross-strait same-sex couples. However, the response from netizens on both sides has been full of hostility and conspiracy theories.
Mainland China netizens say on Weibo that Taiwan allowing cross-strait same-sex unions is a bargaining chip and strategic move in the reunification tussle, aimed at the gay community in mainland China.
On the other hand, Taiwanese netizens commented on YouTube: “Human rights should be protected, but I guess it is impossible for your [mainland China] government.” The commenter did not forget to add at the end: “But the most important thing is that hopefully, you have this awareness yourselves.”
Some mainland Chinese netizens cut to the chase, “Actually, I’m more concerned with how Taiwan’s same-sex marriage legalisation would be solved after reunification. After all, reunification is already where things are headed now.”
Other Taiwanese netizens mocked, “When things are good, the mainland says that we are all Chinese. When things are bad, it stays in Taiwan and is all Taiwan’s fault.”
Yet other Taiwanese netizens pitied the Tsai Ing-wen administration, saying this was “the only way she could win the support and approval of voters”.
However, there were also mainland Chinese netizens who said, “Who would have thought it would be the people across the Taiwan Strait, those that we rebuke every day, who are the first to stand up to protect sexual minority rights in our country?”
Taiwan’s approval and the mainland’s disapproval
In 2019, Taiwan became the first region in Asia to legalise same-sex marriage. Back then, it attracted a lot of attention from the mainland, and relevant topics even made it to the list of top searches on Weibo.
Unlike today, numerous mainland Chinese netizens supported the legalisation of same-sex marriage back then, even jesting that it was “as if China has already allowed same-sex marriage”. In a rare move in late December 2019, mainland Chinese officials mentioned issues related to same-sex marriage at a formal occasion. Yue Zhongming, spokesperson of the Commission for Legislative Affairs of the National People’s Congress Standing Committee, said that members of the public had asked to include the legalisation of same-sex marriage in the civil code.
While this was just a statement of fact and not an expression of official stance, the outside world believed at that time that this was the officials implying a change in attitude towards same-sex marriage. People became hopeful and there were reports speculating if the next step would be to pave the way for reproduction in same-sex marriages, that is, legalising surrogacy.
In May 2020, however, Huang Wei, an official with the Legislative Affairs Commission of China’s National People’s Congress Standing Committee, told Chinese media that opinions calling for same-sex unions were “an organised act” and the letters sent in had come in the same kind of envelope and carried similar content which was copied and pasted from the same source. She concluded that China would continue to hold up the existing marriage law, one that is “between a man and a woman”.
Following which, Chinese officials’ attitude towards LGBT groups became increasingly conservative and even harsh, to the extent that even popular effeminate male idols were not spared and were condemned as niangpao (娘炮, lit. girlie guns, meaning “effeminate, sissy”). Mainland Chinese officials’ firm stance against surrogacy also indirectly implies that same-sex marriage will not be legalised.
Chinese officials consider LGBT a “foreign product” and believe that there is a high risk of foreign forces inciting college students and infiltrating colleges through relevant clubs and organisations, which may even affect national security.
At the same time, room for discussion of LGBT issues among the masses has also shrunk, while LGBT student organisations of various tertiary institutions such as Peking, Tsinghua, and Fudan universities as well as the WeChat official accounts of relevant social organisations discussing LGBT issues have been collectively shut down in July this year.
Some analysts think that mainland Chinese officials consider LGBT a “foreign product” and believe that there is a high risk of foreign forces inciting college students and infiltrating colleges through relevant clubs and organisations, which may even affect national security.
This is a far cry from the high tolerance for LGBT issues in Taiwan. Not only can relevant topics be freely discussed among the masses, but numerous celebrities and personalities have also spearheaded such discussions. At the same time, instead of being seen as crossing the line, politicians can even garner votes for themselves if they advocate or campaign for LGBT.
Thus, the Taiwan government may have it all thought out — on the one hand, they are garnering public support through the decision to allow multinational same-sex marriages; on the other hand, they are adopting a soft approach in gaining the approval of certain mainland Chinese groups.
Indeed, amid the war of words between netizens on both sides of the Taiwan Strait, there are also some mainland Chinese netizens who agree that Taiwan has adopted a “humane approach in the aspect of equal rights”.
However, amid the bigger context that all things can be politicised, and with mainland Chinese netizens clamouring to “take the high-speed train to Taiwan” (as sung in "Take a trip to Taiwan in 2035") and Taiwan netizens mocking those on the other side of the Taiwan Strait as being “little pinks (小粉红)” and “having hearts made of glass”, just how many people really care about the humaneness that equal rights will bring?
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