[Editor’s Note: This is the Final Part of our I-CONnect symposium on the 70th anniversary of the Taiwan Constitutional Court. We are grateful to our guest editor, Professor Chien-Chih Lin, for convening this group of contributors and bringing this symposium to our readers. The Introduction is available here, Part I is available here, Part II is available here, and Part III is available here.]
–Wen-Chen Chang, National Taiwan University College of Law
Taiwan’s sex/gender equality has been substantially improved in recent years. In 2016, the first woman president was elected. The present legislature has 43 female members among 113 total members, reaching nearly 40%. The number of female justices in Taiwan’s Constitutional Court is at record high, four out of fifteen justices. The advancement of sex/gender equality has been primarily in the areas of civil and political rights but not quite so in the areas of economic, social and cultural rights. Women continue to face serious discrimination in the employment, market and family.
Constitutional provisions and a few recently incorporated international human rights instruments including the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) are pivotal to the advancement of sex/gender equality. Article 7 of the Constitution provides that all citizens irrespective of sex, religion, race, class or party affiliation should be equal before the law. Article 134 of the Constitution stipulates a quota system for women representatives in local legislatures. An amendment was added in 2005, requiring the number of female members for proportional seats in the national legislature no less than a half. The government was also obligated to “protect the dignity of women, safeguard their personal safety, eliminate sexual discrimination, and further substantive gender equality” in Article 10 of the Additional Articles to the Constitution.
In April 2004, women organizations called for participation to the meetings of UN Commission on the Status of Women, and for incorporation of CEDAW to Taiwan. By the end of August, the Taiwan Civil League for promoting CEDAW was formed, and successfully put the CEDAW accession into the government’s agenda. In January 2007, the legislature passed the accession, followed by the president’s signature. In 2011, to secure the domestic legal effects of the CEDAW, the CEDAW’s Implementation Act was enacted and came into force on January 1, 2012. Taiwan’s state reports were issued in 2009, 2013, and 2017, with each reviewed by an independent panel of international experts providing recommendations to the government for further implementation.
Grounded on these normative affirmations, women groups began a series of strategic constitutional litigation to advance sex/gender equality. In 1994, the first successful constitutional litigation was initiated. Two women separated from their husbands sought to have their children live with them. According to then Article 1089 of the Civil Code, in case of parental disagreements, the father had the right to decide matters concerning the children. Both women lost their cases and made petitions to the Constitutional Court. In J.Y. Interpretation No. 365, the Constitutional Court unequivocally held that Article of the Civil Code unconstitutional as being inconsistent with sex/gender equality ensured in the Constitution.
Energized by the success brought in J.Y. Interpretation No. 365, women groups began soliciting test cases to challenge other provisions in the Civil Code. J.Y. Interpretation No. 410 and No. 452 were the result of this strategy. The former case was brought in February 1995, involving the Enforcement Act of the Civil Code that failed to incorporate the revised provision in the Civil Code that secured married women’s right to their property or inheritance acquired before marriage. Although the Constitutional Court did not strike down the relevant provision in the Enforcement Act, it issued a clear warning urging the legislature to undertake revision promptly. The Legislative Yuan quickly responded and completed such revision in less than two months. The latter case, J.Y. Interpretation No. 452 involved the former Article 1002 of the Civil Code that required wives to take the residence of their husbands. The Constitutional Court reasoned that the law failed to take into consideration that the other party of the marriage also had the right to choose the residence, thus was in violation of the principle of equality.
In recent years, the advancement of sex/gender equality through strategic constitutional litigation dispersed beyond women activists. In 2009, a District Court Judge challenged the constitutionality of the then Law for Maintaining Social Order which imposed criminal punishment on those intended to solicit sexual transactions for profit. In this case, the Constitutional Court applied, for the first time, the principle of substantive equality, and held the law unconstitutional. Having relied on empirical studies showing a predominant number of those engaging in prostitution were women of lower social and economic status, the Constitutional Court deemed the impugned provision a de facto discrimination against women and violation of sex equality.
A rather disappointing decision on women rights was JY Interpretation No 728 made in 2015. A constitutional challenge was brought to the Statute Governing Ancestor Worship Guilds which delegated a worship guild’s internal regulation to decide whether a person would a qualified successor to a worship guild. The petitioner was a married daughter who was not granted to be a successor. Unlike in JY Interpretation No 666, the Constitutional Court in this case failed to find de facto discrimination as violation of sex/gender equality. For the Court, even though the impugned provision might have resulted in differential treatments between sexes, it could still be sustained because it was not arbitrary, and intended to strike a balance with freedom of association, property rights and freedom of contract held by worship founders. Notably, notwithstanding its constitutional finding, the Court referred to CEDAW’s provisions, advising the government to conduct a timely review and modification of the related provisions to ensure that the law would be keeping pace with time, taking into consideration the government’s positive duty in protecting women and implementing substantive equality between sexes.
In line with the rising demands for equal rights, the demand for recognition of same-sex marriage eventually caught the Constitutional Court’s attention in 2017. A gay man named Chia-Wei Chi lodged his case before the Constitutional Court. The Court issued JY Interpretation No 748, unequivocally holding that the provisions in the Marriage Chapter of the Civil Code that failed to permit two persons of the same sex to create a permanent union of intimate and exclusive nature were in violation of both freedom of marriage as protected by Article 22 and right to equality as guaranteed by Article 7 of the Constitution. The Court further demanded the legislature to amend or enact relevant laws within two years, and added that if relevant laws would not be ready by that time, two persons of the same sex who intend to create the said permanent union should be allowed to have their marriage registration effectuated.
The above brief recap of Taiwan Constitutional Court’s case laws on sex/gender equality has evidenced the strong advocacies of women group for achieving sex/gender equality. Their strategies have not been limited to petitions to the Constitutional Court, but further extended to changing the legal framework and rights discourse altogether. The recent incorporation of CEDAW and its further implementation were clearly the result of such bottom-up efforts. In my view, the turn to international human rights norms of sex/gender equality may reflect dissatisfactions of women groups with the Constitutional Court’s case laws particularly in three aspects: substantive equality, private discrimination and women’s sexual and reproductive rights.
First, women groups have been discontent with the rather formalistic nature of the Constitutional Court’s sex/gender equality doctrine. Although the Constitutional Court has emphasized its doctrinal position on equality as “substantive” rather than “formal”, its case laws –with the only exception of JY Interpretation No 666– were in the opposite. Second, the Constitutional Court has not been effective in dealing with discriminations against women in the private sphere. The recent evidence was JY Interpretation No 728 as discussed above. Finally, the Constitutional Court has not been able to affirm women’s reproductive rights or privacy in its case laws. This has been partly due to the Court’s conservative decision in JY Interpretation No 554, which failed to recognize individual’s sexual freedoms and particularly women’s sexual autonomy by endorsing the criminalization of adultery. In contrast with the Constitutional Court’s case laws, the CEDAW provisions have provided stronger protections for women. There is no surprise that Taiwan’s women groups have strategically turned away from the Constitution and the Constitutional Court to CEDAW provisions and international experts. Hence, if the Constitutional Court likes to continue its fame as a strong rights guardian, it must work with international human rights instruments to give Taiwan’s sex/gender equality a giant leap forward.
Suggested Citation: Wen-Chen Chang, I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court—Has Taiwan’s Constitutional Court Fostered Sex/Gender Equality? A Closer Look at its Leading Cases, Int’l J. Const. L. Blog, Dec. 15, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-the-70th-anniversary-of-the-taiwan-constitutional-court-has-taiwans-constitutional-court-fostered-sex-gender-equality-a-closer-look-at-its-leading-cases
 For further discussion of this incorporation process, see Wen-Chen Chang, An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, 4 (3) Nat’l Taiwan L. Rev. 203-235 (2009).
 JY Interpretation No 352 (1994/9/23), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=365
 JY Interpretation No 410 (1996/7/19), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=410
 JY Interpretation No 452 (1998/4/10), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=452
 JY Interpretation No 666 (2009/11/6 ), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=666
 JY Interpretation No 728 (2015/3/20), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=728
 JY Interpretation No 748 (2017/5/24), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=748
 JY Interpretation No 554 (2002/12/27), English text available at https://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=554