Written by Yo-Ling Chen.
Image credit: 2018.05.19 Capital TransPride, Washington, DC USA 00484 by Ted Eytan / Flickr: CC BY-SA 2.0 DEED.
2023 was a big year for Taiwan’s transgender rights movement. But how will the growing public visibility of transgender issues and legal consensus around the need to abolish compulsory surgery for changing one’s legal gender play out in the aftermath of the 2024 elections under a Lai presidency and three-way split legislature?
On February 10, 2023, the Constitutional Court of the Judicial Yuan ruled on a technicality to send Lisbeth Wu’s case back to the Taipei High Administrative Court, effectively ending hopes for a constitutional interpretation of Ministry of Interior Executive order #0970066240, which requires people assigned male at birth to surgically remove their penis and testis and people assigned female at birth to remove their breasts, uterus, and ovaries in order to change their legal gender. It was thought that, like in the case of same-sex marriage legalization, constitutional interpretation would be an expedient way to compel changes to the existing system of compulsory surgery for changing one’s legal gender. However, with this advocacy route dashed, the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR)—the organization that represented Wu’s case and others like hers—refocused their efforts on pushing forward multiple administrative appeal cases aimed at putting pressure on the Ministry of Interior to change its regulations. This is the same strategy that TAPCPR has successfully used to push for transnational same-sex marriage. TAPCPR is currently representing four publicly known plaintiffs in administrative appeals aimed at abolishing compulsory surgery: the aforementioned Lisbeth Wu, trans-YouTuber and vogue dancer Vivi, a plaintiff in a recent case from New Taipei City, and Nemo (尼莫), a transgender man who is medically unable to undergo sexual reproductive organ removal surgery.
On September 21, 2023, the Supreme Administrative Court (SAC) ruled on another case represented by non-binary activist and lawyer Lingwei Li condemning compulsory surgery, stating that the existing regulations surrounding legal gender change “seriously infringe upon bodily rights, medical rights, human dignity, and right of personality” (“嚴重侵害申請人之身體權、健康權、人性尊嚴及人格權”). The SAC ruling was celebrated by TAPCPR as a major step forward for transgender rights. In combination with the Taipei High Administrative Court’s landmark ruling in Xiao E’s case back in 2021, the SAC’s ruling further consolidates a legal consensus against compulsory surgery for changing one’s legal gender. Any regional administrative court in Taiwan that rules in favour of compulsory surgery will now need to make a convincing case contradicting the SAC’s unambiguous condemnation.
With this further consolidated legal support, transgender issues experienced an unprecedented entry into third party politics during the 2024 election campaigning, with the Taiwan Solidarity Union (TSU) rebranding itself as the only political party against abolishing compulsory surgery for changing one’s legal gender and Green Party Taiwan (GPT) putting forward Taiwan’s first transgender woman to run for office, Abby Wu, as an at-large legislative candidate. Though neither TSU (0.31%) nor GPT (0.85%) gained enough party ticket votes to enter the legislature, each of their respective campaigning efforts brought transgender issues to a public audience for the first time during an election season.
TSU’s collaboration with gender gender-critical groups during the 2024 election cycle—such as by co-hosting a press conference with the Taiwan Women Association (TWA) arguing that “there is no such thing as psychological gender… gender should only be understood as biological” (“沒有所謂的心理性別… 性別應該只有在生理層面” 6:26)—indexes the growing mobilization of an opposition movement to transgender rights in Taiwan. Gender-critical feminist engagement with the 2024 elections gives some indication of how these groups will approach future legislation. For instance, the gender-critical online hub No Self ID Taiwan curated and circulated a voter’s guide listing all presidential and legislative candidates’ positions on three major issues: abolishing compulsory surgery, anti-discrimination legislation, and surrogacy. Despite the majority of candidates having never explicitly made their stances known on abolishing compulsory surgery, No Self ID painted almost every candidate as supportive of this measure based on generic support for LGBTQI+ rights, such as signing any of Taiwan Equality Campaign’s Pride Watch candidate commitments. This rhetorical move helps to construct Taiwan’s gender-critical movement as a righteous minority facing a unanimously hostile political environment. It remains to be seen which politicians will take a stand on transgender rights or even if transgender issues will be heard during this next legislative term.
The current Legislative Yuan consists of fifty-two Kuomintang (KMT), two independent but KMT-leaning, fifty-one Democratic Progressive Party (DPP), and eight Taiwan People’s Party (TPP) seats, putting the TPP in a kingmaker position. Furthermore, the KMT’s notoriously sexist and failed 2020 presidential candidate, Han Kuo-yu, is serving as President of the Legislative Yuan, holding the power to determine the schedule of which bills are heard during each legislative hearing. How will transgender rights fair in such a volatile legislative environment?
Immediately after securing a third presidential term, the DPP declared that amendments to the Assisted Reproduction Act (ARA) would be a top priority for 2024. Both KMT and TPP legislators have also expressed support for ARA amendments, meaning that proposed amendments will likely soon be heard on the legislative floor. While it remains to be seen how ARA amendments will navigate new parliamentary power dynamics between the DPP, KMT, and TPP, there has been a noticeable absence of discussion around transgender fertility throughout debates over whether to decouple surrogacy from ARA amendments. Transgender reproductive rights, in general, have yet to be discussed in public discourse. Though it is unlikely that ARA amendment discussions will explicitly include transgender people, the general push for disaggregating access to assisted reproductive technologies (ART) from marital status and gender will be a major step forward for transgender reproductive rights.
The other item likely to reach the legislature in the near future is the Executive Yuan’s Department of Human Rights and Transitional Justice bill for Taiwan’s first comprehensive anti-discrimination legislation, which is scheduled to be completed this year as part of Taiwan’s National Human Rights Action Plan. Already during public listening sessions in April of last year, groups such as Fu Jen Catholic University’s Human Life Ethics Center, Taiwan U.R.O. (United Religion Organization 台灣宗教聯合會), and No Self ID Taiwan explicitly expressed the need to exclude transgender people under the proposed Equality Law. When said bill reaches the Legislative Yuan, subsequent public committee hearings will likely include gender-critical feminist opposition arguing that “anti-discrimination” is a sheepskin for “gender ideology.” Gender critical groups argue that comprehensive anti-discrimination laws will, obviously, include protections against discrimination on the basis of gender, which will give transgender people further legal basis to win anti-discrimination lawsuits and, without impunity, encroach on women’s rights. It remains to be seen to what extent these arguments will sway any legislators.
Lastly, while there is growing legal consensus on abolishing compulsory surgery, broader discussions about what specific requirements, if any, should be required for changing one’s legal gender are still ongoing. While Shih Hsin University Professor Yi-Chien Chen has suggested a “soft medical model” similar to Germany’s existing system requiring two psychiatric evaluations in a draft Gender Recognition Act to the Executive Yuan, Taiwan has yet to see gender recognition legislation being proposed in the Legislative Yuan. Given the current volatility of the legislature, it is likely that such proposals will only be seen after progress on ARA amendments and establishing an Equality Law are made, if at all. Until then, it remains to be seen whether and how the momentum for transgender rights that accumulated in 2023 will translate into new legislation and legal protections over the next four years.
Yo-Ling Chen (they/them) is a freelance writer and LGBTQIA+ activist based in Taipei. They are a founding editor and translator at 酷兒翻越 Queer Margins, as well as a contributing editor at New Bloom Magazine. Yo-Ling also volunteers for a variety of Taiwanese organizations doing transgender and non-binary advocacy work, such as the Taiwan Alliance to Promote Civil Partnership Rights.
This article was published as part of a special issue on ‘2023 to 2024: Looking Back, Thinking Ahead‘.
