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    Taiwan’s Prop 8

    By Stuart Gaffney and John Lewis–

    The Taiwanese LGBTIQ community on November 24 experienced the trauma of their own version of Prop 8 when conservative Christian political forces succeeded in passing anti-marriage and anti-LGBTIQ equality referenda. Having lived through Prop 8 a decade ago, we experienced the Taiwan election results like a bad case of déjà vu and PTSD as well.

    As background, Taiwan’s Constitutional Court in May 2017 issued a landmark decision in favor of marriage equality, putting Taiwan on the path to become the first country in Asia with the freedom to marry. The only catch was the Court gave the government two years to enact legislation to implement the decision. If the government did not act, LGBTIQ couples could begin marrying in May 2019 under existing law. The government dawdled, allowing anti-LGBTIQ opponents time to organize petition drives to place the discriminatory referenda on the November 24 election ballot.
    And the referenda passed by large margins. The first, stating that the Civil Code should exclude same-sex couples from marriage, garnered 72 percent of the vote. A second, urging the government not to enforce the nation’s comprehensive Gender Equity Education Act, which includes LGBTIQ curriculum in elementary and middle schools, passed with 67 percent of the vote. A third, stating that same-sex couples’ rights should be protected in some way other than amending the Civil Code, also passed with 61 percent of the vote. 

    The echoes of Prop 8 are unmistakable. The Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), lead counsel in the marriage equality litigation, explained how the LGBTIQ community faced “a monster with a war chest” (estimated at over U.S. $30 million) to finance “brainwashing campaigns to promote bias, fear and even hatred towards LGBTIQ people in Taiwan.”

    Multiple news outlets report that support or funding came from notorious American anti-LGBTIQ groups, such as the National Organization for Marriage (NOM), a significant supporter and funder of the Prop 8 campaign, and MassResistance. 

    Jennifer Lu, chair of the Taiwan Marriage Equality Coalition, told the Human Rights Campaign: “The National Organization for Marriage instigated the three anti-LGBTQ measures,” using “materials [that] are often carbon copies of the same messaging and scare tactics” employed in the U.S. and other countries.

    Akin to the Prop 8 campaign’s reliance on manufactured fears about the well-being of school children and freedom of religion, the Taiwan campaign “tried every possible and scurrilous means” including “creating fake news” and “establishing ‘fake’ opponents … to exclude the real opponents from … public debates,” according to TAPCPR. Lu and other activists described how anti-LGBTIQ “smear messages” included “baseless claims,” such as that marriage equality will lead to Taiwan becoming “an island of AIDS.”

    As during Prop 8, the hostile campaign messages and divisive atmosphere they created took a toll on the well-being of LGBTIQ people. In Prop 8, some children of same-sex parents feared Prop 8 would cause their families to be separated, and all LGBTIQ people faced the indignity of having millions of strangers vote on their basic human rights. In Taiwan, increased anxiety and depression, as well as two suicides of LGBTIQ people, were reported during the campaign. TAPCPR stated that the campaign subjected LGBTIQ people to “humiliation.”

    However, Prop 8 and the Taiwanese referenda differ crucially in their actual legal effect. Prop 8 took away LGBTIQ Californians’ state constitutional right to marry. The Taiwanese referenda, malicious as they are, do not—and indeed cannot—reverse the Constitutional Court’s decision in favor of marriage equality, the highest law of the land.

    Passage of the Taiwanese referenda brings uncertainty and potential challenges to achieving full equality. TAPCPR’s Hsu explained to The Guardian that the referenda will likely lead the legislature to create a separate legislative code for same-sex marriage apart from the existing Civil Code marriage provisions, with anti-LGBTIQ forces pushing for a “lightweight” version of same-sex relationship recognition. 

    But the sweeping Constitutional Court decision, mandating marriage equality and rendering anti-gay discrimination presumptively unconstitutional, gives Hsu and the LGBTIQ community powerful legal tools to demand full equality; we know they will use them.

    Hsu told us for the San Francisco Bay Times, “We won’t compromise on equal rights.” 

    Perhaps the most destructive element of political campaigns such as Prop 8 and the Taiwan referenda is that, if they prevail, everyone loses—even the purported “winners.” The type of exploitation of fear the campaigns employ creates needless polarization, division and hatred. The sacrifice of integrity and the severance of human connection diminish everyone’s lives.  As with Prop 8, masses of Taiwanese people were not clamoring to take away marriage equality from LGBTIQ people; they only responded when a self-interested, manipulative political campaign was able to put the question on the ballot.
    After Prop 8 passed, we asked ourselves the counter-intuitive question: “What’s the best thing that happened?” We believed the answer would likely point the way forward. Our answer: 6.4 million people, more than ever before, voted for love and LGBTIQ equality.

    On election night in Taiwan, legendary activist Chi Chia-wei, who has been fighting for LGBTIQ and marriage equality for over 30 years, struck a similar tone: “Vote counts today are still inspiring to me. In the past, the LGBTIQ movement and political mobilization were unimaginable. Today, however, more than 2 million voters, including many heterosexuals, really understand and respect LGBTQ communities.” In the final vote, well over 3 million Taiwanese voters supported marriage equality.

    Prop 8’s passage awakened the LGBTIQ community and its allies, and engendered an unprecedented outpouring of support against hate and bigotry in favor of love. On election night, Hsu and other LGBTIQ leaders maintained their dignity and their resolve. In the words of TAPCPR: “We pledge to use love to counter hate, use wisdom to shatter lies and to continue courageously making strides towards marriage equality, until it is fully realized.” We know they will.

    John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.