October is Pride Month in Taiwan — a chance to celebrate the island’s progress in equal rights. But legal inequalities remain and often disproportionately affect couples with a non-Taiwanese partner.

BY DINAH GARDNER AND CARINA ROTHER

For a high-powered lawyer who has led nearly every landmark case advancing Taiwan’s LGBT rights over the past decade — including the Constitutional Court’s 2017 decision that opened the door to same-sex marriage prior to its legalization — Victoria Hsu is anything but intimidating.

Modest in height and soft-spoken, Hsu is warm and friendly, weighing her words with a lawyer’s precision. She also laughs a lot.

We meet on a sweltering July morning at the Wenshan District offices of the non-profit she cofounded, the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR). We are here to talk about the flaws with Taiwan’s 2019 marriage equality law and how her alliance (her core legal team is made up of four lawyers, mostly working pro bono) successfully used litigation and advocacy to remedy those flaws.

“It’s been a kind of calling,” says Hsu. “I think because as a lesbian lawyer and a relatively senior one, I thought I had an obligation to do [this].”

The same-sex marriage law — indisputably a key moment for LGBT rights — made Taiwan the first country in Asia to legalize same-sex marriage, but not without leaving numerous inequalities in its wake. Disparities disproportionately affected transnational same-sex couples. Certain nationalities were restricted from marrying under Taiwanese law, while other families were denied citizenship for their children even when one parent was Taiwanese. 

Such has been the case for two-year-old Jupiter from Taipei. (The names of the family members have been changed to protect their privacy.)

We meet Jupiter and her parents on a blustery morning outside the unassuming glass facade of the Shilin District Court. Jupiter is a little unsteady on the tall steps. Her mothers, Anna and Sam, hold her hands on either side, as if reassuring themselves as much as their daughter.

They have been waiting for this day for a long time — ever since they found out that Jupiter, despite having one Taiwanese and one American mother, was not legally eligible for Taiwanese citizenship. Today, they are suing the Ministry of the Interior over what they feel is an injustice.

“Her mother is Taiwanese, how on earth is she not Taiwanese?” says Anna, the American half of the couple and the one who gave birth to Jupiter. They were married at the time of birth and, as required under Taiwanese law, went through the process of stepchild adoption for Sam after their daughter was born.

Under Taiwan’s citizenship law, an adoptive parent can’t pass down their Taiwanese citizenship unless the child rescinds their existing citizenship — in this case, American. The rule poses particular challenges for transnational same-sex couples when the foreign spouse is the biological parent. Because Anna and Sam were among the first horde of same-sex couples to get married and start a family in Taiwan, they couldn’t anticipate that this would happen.

Childhood in limbo

Being denied Taiwanese citizenship disadvantages Jupiter, from childcare subsidies and access to schools to future voting rights and higher university fees when she gets older. And then there is the emotional cost of being considered an outsider in the only country she’s ever known.

Her mothers are exhausted from years of dealing with administrative issues, legal costs, and uncertainty. “If we were in the exact same situation as a straight couple, this issue wouldn’t exist,” says Anna.

For heterosexual couples, parentage is assumed for both partners, regardless of genetic relation. They also have access to in vitro fertilization and can purchase from sperm and egg banks in Taiwan — options barred to same-sex couples under current law.

It is one of the inequalities that still weigh on gay and lesbian couples. Yet Anna and Sam hesitate to call it discrimination. They say they feel safe as a same-sex family in Taiwan and that their experience has been “wonderful.” “We have never been met with anything but friendly curiosity here,” says Anna, who is originally from Texas.

Sam, Jupiter’s Taiwanese mother, says Taiwanese society is increasingly embracing LGBT rights, despite the remaining legal blind spots. “It’s a gap that needs to be closed,” she says. “I’m hoping that by resolving our case, Taiwan’s law will change.”

As we speak, the woman who has made it her calling to push for this change — Hsu — arrives. She is wearing the stately gown of a Taiwanese lawyer, her jeans and sneakers peeking out underneath. Hsu talks the family through today’s hearing one last time. Together, they disappear into the courtroom, expecting it to be the first of many hearings.

Before Jupiter, there had been only one case in Taiwan of this exact nature. But as time goes on and more same-sex couples marry and start their families, more will also fall through the gaps in the law unless a broader fix is found.

Separate status

Back in her Wenshan office, Hsu explains why the same-sex marriage law was drawn up with so many flaws. Instead of amending the Civil Code to change the existing marriage law to include same-sex couples, the government drew up a separate and “secondary law” that “compared to the rights of heterosexual couples, [gave] same-sex couples[…] relatively limited freedom and rights.” This separate law explicitly said that same-sex marriage would be granted equal rights in some areas — such as the way spouses are treated under the Labor Insurance Act — but not in others.

At the time, the Democratic Progressive Party government was reluctant to act because it was afraid of conservative political and societal pushback, explains Hsu. In 2018, the results of a public referendum brought forth by anti-gay voices found that a majority of people did not support equal rights for LGBT couples wanting to marry.

“It was a basic question of political will,” Hsu says, adding that the government “just wanted to do the minimum to fulfill their duty to respond to the Constitutional Court’s obligations.” In practice, lawmakers intentionally differentiated “same-sex marriage from [that of] heterosexual couples to make those anti-gay groups feel better that this is not true marriage,” says Hsu, laughing sadly.

Since then, public opinion has shifted as same-sex marriage has become a fixture in society, she says. “A lot of [LGBT couples] got married and Taiwan is still Taiwan! Nothing crazy has happened!”

Still, the two separate laws remain, and having two laws means the situation “is not equal,” she says. “We should abolish this kind of segregation.”

When one partner is not Taiwanese, there are additional challenges. Hsu calls these entrenched legal hurdles “something like institutional racism.”

Blocked by law

The joy that Joyce and Queenie — who asked to be identified only by their first names — felt in 2019, when Taiwan legalized same-sex marriage, was tempered by the fact that they still could not marry.

While Joyce is local, Queenie is from the Philippines. In 2019, Taiwanese could only marry their foreign same-sex partner if the partner’s country of citizenship also recognized same-sex marriage.

“We were very sad and very stressed,” Joyce explains in a video call. “I couldn’t see what our future would be like. We had such hope, and in 2019, I saw my friends get married. They could have their happy life, but we were still struggling.”

For couples like Joyce and Queenie, it was as if Taiwan had failed them.

Joyce recalls thinking at the time: “Taiwan called itself the first country in Asia to pass the [same-sex marriage law] but it didn’t include all citizens.”

Joyce and Queenie met in 2014 and have been together since. For them, marriage was not only about making their relationship official; it was the guarantee that they could remain together as a family in Taiwan. After Queenie’s work contract expired in 2016, the two women traveled back and forth between Taiwan and the Philippines to be with each other. In 2018, Queenie quit her job to enroll at a Taipei university to study Mandarin so they could be together. Then, in 2020, Queenie found out she had thyroid cancer.

“It was a very, very hard time because we couldn’t get married and I had cancer,” she says. “I didn’t have any finances. Joyce was supporting me. So it was just like for us, the world was falling down.” At one point, Joyce says, she felt such overwhelming despair that she contemplated taking her own life.

Fortunately, Queenie was successfully treated for her cancer, and the couple joined Hsu’s organization in holding press conferences and staging protests to push for change. In January 2023, after several court battles led by Hsu, the government revised its legal stance, allowing same-sex marriage regardless of nationality (except mainland China).

But Joyce and Queenie were still thwarted.

Taiwan required both heterosexual and same-sex couples to first register their marriage in the non-Taiwanese partner’s home country if it was among roughly 20 nations, mostly in South and Southeast Asia. They were also required to undergo a marriage interview at Taiwan’s office in the country.

“They want to verify the authenticity of the marriage,” Hsu says, adding that these extra steps stemmed from suspicions that the union may not be genuine. Joyce and Queenie could not get married first in the Philippines because Manila has no same-sex registration.

It took several more months of TAPCPR advocacy after the January 2023 decision for the government to ease the requirements for those countries. For same-sex couples, the requirement to register the marriage in the foreign partner’s home country was dropped. Queenie traveled to the Philippines to prepare the paperwork, and Joyce later joined her for the marriage interview.

This August, the couple, now both in their early 40s, celebrated 11 years of being together (as well as two years of being married) with a cake and a bottle of wine at home.

Their story reflects how far Taiwan has come in the six short years since same-sex marriage was legalized. Other milestones include a 2023 amendment that expanded adoption rights beyond stepchildren, and legislation the following year that created a pathway for Taiwanese nationals to marry same-sex partners from China — provided the marriage takes place in a third country. Some victories have drawn less notice but are no less meaningful for the families they touch.

Redefining fatherhood

Melvin Su and his husband Trevor Leung had been together for over 10 years and married for three when they had their son with the help of a surrogate in the United States. The San Francisco couple has deep ties to Taiwan, Su’s childhood home. As a dual national, he was intent on passing on his Taiwanese citizenship to his son. But when registering his son’s birth with the Taiwan authorities, he was denied his wish because he was not the genetic father — the same issue that the mothers of Taiwan-born Jupiter encountered, but abroad.

We meet over coffee during one of his frequent visits to Taipei. There is pain in his voice when he explains the disappointment. “The government was celebrating that they passed this same sex marriage law as the first in Asia. But [for the Taiwanese birth record] the government is telling me, ‘choose one — who’s the father?’”

Taiwan’s reasoning was that under Taiwanese law, there is no way to register two fathers at birth, even though both men were listed as legitimate parents on the American document. Su was not going to let that sit. He dug into the statutes and found a clause in Taiwan’s Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, which states that a child’s family relations are determined by the law of the child’s country of origin. Under U.S. law, the case was clear: his son had two fathers from birth. “This is something I can use,” he thought as he began petitioning the Taiwanese authorities through the official channels.

What ensued was a two-year-long back-and-forth with Taiwan’s Ministries of Justice and the Interior. Hunched over his computer, Su reads from countless official letters that shift the responsibility between the two ministries. It took almost two years and the inauguration of a new government (of the same party) before the new Minister of the Interior stepped in with a final interpretation: American law holds — the boy has two fathers at birth and is therefore eligible for Taiwanese citizenship.

What seems like a niche case is in fact a precedent for all male gay couples from Taiwan who are starting a family through surrogacy in the United States. It grants both fathers full parental rights the minute the child is born. And it may offer a way forward for little Jupiter and her mothers, as they await their next trial date.

Melvin Su’s activism has largely gone unnoticed in Taiwan, but he’s more interested in progress than recognition. “We’re all pushing the needle forward a little bit,” he says, happy that this fight is won as the couple awaits the birth of their second child.