Same-sex couple leading court challenge in Taiwan to withdraw case tomorrow

This is a guest post by Amy Hsieh, a former aide in the Taiwan legislature and a doctoral student in political science at George Washington University.

The same-sex couple who was about to become a test case for marriage rights in Taiwan’s top court has announced they will formally withdraw their case tomorrow. According to a press release, Nelson Chen and Kao Chih-wei will hold a press conference tomorrow afternoon and then submit their motion to the court. This comes just a week after the court postponed a decision until late February on sending the case up to the Constitutional Court for interpretation.

This decision is a real head-scratcher, since their justifications seem thin and it comes over the objections of their attorney. Chen—who does the public speaking for the couple—has said that he is worried about the safety of his family and friends after getting threats on Facebook. He also has cited dissatisfaction with the court’s handling of the case, but it’s unclear what he would have liked to see handled differently.

The couple’s own pro bono lawyer, Liu Chi-wei, had requested the judge to send the case up for constitutional interpretation. Now Chen has posted an apology to Liu for deciding to withdraw the suit and thanked him for his hard work over the past year.

Chen is now urging their supporters to now instead support the Task Force’s efforts to push for a bill on domestic partnership rights, with whom he previously clashed over whether to proceed with the case in the first place.

It’s not yet clear whether this move will actually end this landmark case in Taiwan’s LGBT history. According to Chen’s lawyers, technically the court can deny the request to withdraw the suit if the case is deemed to be in the public interest.

Chen has scheduled a full day of public activities for tomorrow on top of the press conference. He will have lunch with the first gay couple to openly marry in the central Taiwan city of Taichung, shop for clothes at a boutique in Taipei’s gay-friendly Red Theater district, and take a blood test for HIV. Al Jazeera reporters will be covering his itinerary.

Are LGBT activists pressuring Taiwanese couple to drop marriage suit?

This post is based on reporting by Amy Hsieh.

Is Taiwan’s LGBT movement pressuring a same-sex couple to drop their lawsuit for marriage recognition just as its set to go to the island’s top court?

The case of Nelson Chen and Kao Chih-wei took and unexpected turn this week just as an administrative court was convening a hearing to refer their suit to the Constitutional Court. According to media reports, Chen said that he “might” or “tentatively intends to” withdraw his case. At the time, he said this was because he wanted to spare his family the attacks that have been posted on their Facebook pages.

But there are hints that they may be getting pressure from inside the LGBT movement to drop the case because of fear that an unfavorable ruling could set the cause back. On Thursday, an umbrella group pushing for a same-sex partnership law in the island’s legislature, issued a statement refuting remarks Chen allegedly made saying he was being pushed to withdraw the case. The statement from the Taiwan Domestic Partnership Task Force said:

We have never asked Nelson to withdraw his suit. In fact, we support every individual who is willing to stand up for their rights. Even if the constitutional interpretation turns out to contravene our belief in equal rights…no one will nor should place blame on individuals who have been brave enough to take a stand.

It’s unclear how seriously the couple is threatening to withdraw–the language used in media reports about his hesitation is very peculiar. But Chen announced that he will hold a “withdrawal of lawsuit press conference” on January 23 in a post on his Facebook page, inexplicably pairing the announcement with a picture of a toilet bowl. Reading between the lines, this could be is a play for more time to iron out disagreement with other LGBT rights activists in Taiwan.

If there is intra-movement disagreement about moving the case to the Taiwan’s top court, that wouldn’t be unusual. In many countries where individuals or couples have pushed marriage cases, institutional gay rights organizations have opposed such lawsuits fearing they were premature.

 

Taiwan same-sex couple considers withdrawing their case

In protest of a “passive attitude from the Justice system,” the couple at the center of Taiwan’s high-profile same-sex marriage lawsuit boycotted a Tuesday hearing on sending the case to the Constitutional Court, according to the Taipei Times.

They also hinted they may be having second thoughts about moving ahead with the case because they have become the targets of harassment.

“Does seeking marriage registration still make sense if my friends and family are hurt because of it?” said Nelson Chen, who complained his family had been attacked on their Facebook pages.

I’m still working on getting more information on what exactly happened today and what the couple is seeking from the Justice system–the information so far online is vague. The Taipei Times reports:

When asked by the press what they expected from the justice system, Chen said the Ministry of Justice should have played a more active role by proposing a revision of the law after it had completed a study on the same-sex marriage systems in Germany, France and Canada in May last year.

The report concluded that the Registered Same-Sex Partnership Regime adopted by Germany offers “a better common ground and a compromise solution between the marriage equality groups and those who are opposed to same-sex marriages.”

The court yesterday said that if the plaintiff and the defendant, the Zhongshan District Household Registration Office, would like to provide more information about whether such a union goes against the Constitution of the Republic of China, they could do so by Feb. 22.

The geopolitical stakes of Taiwan’s marriage case

A Taiwanese lower court meets Tuesday to formally decide whether to send a same-sex marriage suit to the island’s Constitutional Court. This is new territory for the Taiwanese legal system, but some experts say momentum is on the side of same-sex marriage advocates.

“This time is a real turning point,” said Chang Hong-Chen, an expert in Taiwan’s sexuality law who is close to the Constitutional Court.

While it’s far from certain what the court will decide–if it even agrees to take the case–the very fact that it’s being treated as a serious legal question is a major step forward.

Taiwan’s larger geopolitical interests are one important factor on the side of the couple suing for recognition. Taiwan ratified two major United Nations human rights treaties in 2009 and is in the process of bringing its laws into compliance with these standards. This process is about more than protecting the rights of its residents–it’s part of the battle with China over its diplomatic status.

Only a handful of nations recognize Taiwan as an independent nation, since the China still claims Taiwan to be part of its territory. If Taiwan can prove itself to be a model global citizen, some Taiwanese leaders hope, it will be able to make a stronger case for greater participation in the international community.

“Our government likes to play the international human rights card,” said Chen Yi-chien, a professor at the Graduate Institute of Gender Studies at Shih Hsin University.

While same-sex marriage rights aren’t specifically protected by international treaties, the focus on improving Taiwan’s human rights record has created an opening for same-sex marriage advocates to promote their case. It comes at a time that courts in other countries are increasingly concluding that marriage rights are human rights that deserve protection.

“This is just the right moment for the issue to be discussed from a legal perspective,” Chang said. “People in Taiwan and the justices of the Constitutional Court, they take foreign jurisprudence very seriously.”

But Chen isn’t holding her breath for a sweeping ruling establishing same-sex marriage rights; that might be too big a leap for Taiwan to take in this case. But she does think that there’s a good chance that the court could issue a ruling that would advance the cause even if it doesn’t immediately create a right to same-sex marriages.

“They are not going to say the current law is unconstitutional, but we’re hoping they will say … something in-between,” she said.

From her point of view, however, legal recognition is a secondary goal. If all this case does is to open serious debate on the question of same-sex couples rights, it will still have been an important achievement.

The goal, she explained, should be to “to use this kind of legal approaches to make society aware that there is a problem and how should we discuss… the issues of LGBT [people].”

The international context of this case means that the decision of the United States Supreme Court in the pending marriage cases could have a strong effect on Taiwan’s case. A broad ruling in favor of same-sex marriage rights could up the pressure on Taiwan’s justices, while a ruling against marriage rights could disuade the justices from taking the case at all.

“American law has a great deal of influence on this issue,” Chang said.

Another marriage suit on its way to the Inter-American Court of Human Rights

It’s looking increasingly likely that the Inter-American Court of Human Rights is going to have to decide whether same-sex couples’ right to marry is protected by international law.

Activists in Costa Rica have announced that they’ll start the process of suing their government after a civil union bill was blocked by conservative members of the country’s legislature. Their suit would join one filed earlier this year by three couples in Chile. And the Mexican lawyer who successfully sued on behalf of three couples from Oaxaca, Alex Alí Méndez Díaz, told me earlier this month that he’s also preparing to go to the Inter-American Court to broaden the ruling to allow same-sex couples to marry across Mexico.

Though the United States does not recognize the authority of the Inter-American Court (big surprise), most Latin American countries do. If the court were to rule that same-sex couples have the right to marry under the American Convention on Human Rights, it could lead to equal marriage rights across the region. Continue reading

Brazilian state of São Paulo to legalize same-sex marriage

Within 60 days, same-sex couples in Brazil’s São Paulo state will be able to legally marry simply by going to a notary. That’s thanks to a new rule issued yesterday by the state judiciary.

The legal status of same-sex unions in Brazil has been a little confusing. The country’s top court recently ruled that same-sex couples have the same domestic partnership rights as heterosexual couples. Couples that have registered their domestic partnerships have since successfully gone to court to “convert” these unions into marriages.

The new rule means same-sex couples can skip the court phase in order to marry. It is also another major boost for the same-sex marriage movement in Latin America. Forty-one million people live in São Paulo state, making it the most populous state in the largest country in Latin America. It also has a population several times larger than Uruguay, which is on the cusp of legalizing same-sex marriage.

Marriage case heads to Taiwan’s top court

A Taiwanese court punted Thursday on a case that could have created the first legal same-sex marriage in Asia, saying it would prepare to send it to the top court without issuing a ruling.

The dodge angered and disappointed LGBT activists.

“The judges showed no spine on this critical case. This could have become a milestone case for all Asia,” said Taiwanese LGBT rights advocate Chi Chia-wei.

The legal proceedings for a constitutional interpretation would take up to a year, according to Huang Kuo-cheng, one of the pro bono lawyers for the couple in this case, Chen Ching-hsueh and Kao Chih-wei.

This is a guest post by Amy Hsieh, a doctoral student of political science at The George Washington University and a former aide to Taiwanese lawmaker Bi-khim Hsiao.