A campaign poster of the Taiwan Solidarity Union in Hsintien, New Taipei City: “Saying NO to ID changes without a surgery keeps women safer.”
Photo: Marcin Jerzewski
What is going on?
Even though Taiwan made history by becoming the first country in Asia to legalize same-sex marriage in 2019, the LGBTQI+ community in Taiwan continues its struggle for full equality. An important lingering area for LGBTQI+ advocacy in Taiwan following the legalization of same-sex marriage is broader inclusion of transgender and non-binary individuals. The issue of transgender inclusion remains an important topic in the ongoing campaign ahead of the upcoming legislative and presidential elections, although it received little attention in global media. Taiwan’s Green Party made history by nominating Abbygail Wu (吳伊婷), engineer, activist, and a transgender woman, as a candidate on its party list; this marks the first time when a transgender person could win a seat in the Taiwanese legislature. At the same time, the right-wing pro-independence Taiwan Solidarity Union appeals to trans-exclusionary radical feminism by vehemently opposing any relaxation of the surgical requirements for the legal recognition of the affirmed gender, claiming it is a “women’s rights” issue. Consequently, the upcoming vote can have implications for the possibility of a legal change towards greater transgender inclusion.
What is the broader picture?
With regard to the procedure for legal gender recognition, the administrative order No. 0970066240 issued by the Ministry of Interior in 2008 stipulates that individuals need to undergo mental assessment from two psychiatrists and provide medical certification proving the completion of the surgical removal of reproductive organs. These eligibility criteria place very significant limitations on access to legal gender recognition. Moreover, Taiwan does not currently recognize non-binary gender markers such as X.
Litigation has proven to be an important tool for activists campaigning for the rights of transgender people. In November 2021, Xiao E (小E) became the first Taiwanese transgender woman to have her gender legally recognized without submitting a confirmation of surgery. According to the ruling, the surgery requirement for removal of the reproductive organs for legal gender recognition stood against the principles of legal reservation, equality and proportionality. Yet, this verdict is only legally effective for Xiao E and has not yet led to a change of the broader framework, which continues to be governed by the Ministry of Interior’s executive order.
In another case involving Lisbeth Wu (吳宇萱), a transgender woman seeking legal confirmation of her gender without submitting a proof of surgery, the Taipei High Administrative Court has ordered a halt to the legal proceedings and decided to seek a constitutional interpretation from the Judicial Yuan. Wu is a dual citizen of the US and Taiwan who already changed the gender markers on her American identification documents, but has yet to successfully change her legal gender in Taiwan. Nevertheless, the Constitutional Court refused to hear the case, which was returned to the Taipei High Administrative Court.
Why does it matter?
Despite challenges, cooperation on expanding social inclusion of LGBTQI+ persons provides a foundation for equitable engagement between Taiwan and the EU. Brussels and Taipei have a strong record of cooperation on those issues, including through the 2019-2023 EU-Taiwan Gender Equality Cooperation and Training Framework. The 2022 EU-Taiwan LGBTI Human Conference also prominently featured topics related to the promotion of transgender persons’ rights, including sharing of best practices of Belgium and Austria which could be implemented to Taiwan. While member states which began the expansion of protection of LGBTQI+ rights earlier can offer actionable policy ideas for Taiwan in domains such as equal legal treatment of transgender people, Taiwan can also support LGBTQI+ inclusion in less progressive member states through exchanges at the CSO, legislative, and administrative levels.
