【by Yi-Chien Chen, Dec. 2024】
1. Why I Became Interested in Transgender Rights
How did I become interested in transgender issues in the first place, and why do I think they are one of the most pressing issues of our time? People often ask me this question, sometimes with a suspicious tone, as I appear to be a mainstream cisgender legal professional.
Oxford Law Faculty Dean and Professor Mindy Chen-Wishart once described jurisprudence as the place where “philosophy, law and politics come together to answer pressing issues of the day.” This is exactly why I fell in love with feminist jurisprudence as a subject many years ago upon taking Prof. Kathryn Abrams’ “Feminist Jurisprudence” seminar at Cornell law school—three of my favorite subjects, all come together to solve the most pressing problems of. How exciting!
My movement from feminism to transgender law and politics was a natural process arising from my feminist activism. As a jurist, instead of teaching at a law school, in August of 2003 I started to teach in the newly founded Graduate Institute of Gender Studies in Taipei. That year, I also joined the Judicial Reform Foundation (司法改革基金會); in 2010, I joined Awakening (婦女新知基金會), Taiwan’s oldest feminist organization. The issues I initially worked on then included female participation in the military, reproductive rights, and decriminalizing adultery—mostly classic (some might say “old”) feminist challenges. I then began to explore the state regulation of intimacy based on gender, race, class, and sexuality, such as in the legalization of same-sex marriage. Gradually, I moved to the subject of intersex and transgender rights. The common theme of the aforementioned feminist topics is to dismantle Taiwan’s sex-gender binary system.
When I first returned to Taiwan in 2002, I worked in a legal department for the Taipei City Government. On May 7th, 2003, Ms. Lin (林國華), a well-known transgender woman, ended her life in a hotel room. At the end of 2003, a transgender activist named Ms. Tsai (蔡雅婷) committed suicide by throwing herself onto a railway. I remember receiving this sad, shocking news, as I always pay attention to media reports on suicide cases. What happened? Is Taiwan a sweet home for me, but not for them? Ms. Lin and Ms. Tsai encountered many forms of discrimination at work, at school, in their family lives, and in society at large before they took their own lives. These life and death stories pushed me to examine the issues facing transgender people directly.
2. Inspiring Trans Stories in Taiwan
Both on paper and in everyday life, Taiwan is a very peculiar international law case. It is a young constitutional democracy whose official name is the “Republic of China” (hereafter R.O.C.), which is sometimes confusing as there also exists the “People’s Republic of China” (hereafter P.R.C.), also known as China. On the way to being recognized as a self-ruled, independent island country, Taiwan strives to meet international human rights standards. Ms. Tang (唐鳳), the first transgender minister in a top executive cabinet position in Taiwan and the world, made international headlines in 2016. She dropped out of school at 14 and, fortunately, her parents have supported her since. Though Ms. Tang is internationally famous, it does not guarantee that national law treats her fairly. She once shared with the public that she wrote down “無” (or “non” in Chinese）in the gender marker column of a human resources form in the Executive Yuan. However, we know according to current administrative regulations that her National ID card’s gender marker is certainly not listed as “non.”
The first sex change surgery (translated as “變性手術” at the time) in the R.O.C. was performed in 1953 on an intersex soldier named Hsieh Chien Shun (謝尖順). From today’s point of view, Hsieh, a soldier in the Chinese Nationalist Party military, did not give clear consent to surgery. During the time of Hsieh’s surgery, the one-party government representing “Free China” wanted to show the world that it too was able to perform a sophisticated medial surgery just like the US, as opposed to an uncivilized P.R.C. Exploring this history further, we can find resemblances and differences between the past and the present.[1]
What is the legal situation of trans people living in contemporary Taiwan? In May of 2019, Taiwan become the first nation in Asia to legalize same-sex marriage. Less known, however, is the Wu-Wu trans marriage case of 2012. Jiyi Wu (吳芷儀) and Yiting Wu (吳伊婷) were both registered as males at birth and underwent gender reassignment surgery in July of 2012, three months before they registered for marriage. Prior to their marriage registration, Yiting Wu went to Household Registration Hall and changed her legal gender to female. Jiyi and Yiying were now legally recognized by the state as, respectively, a man and a woman, and hence were able to register their marriage. After they got married, Jiyi Wu then changed her legal gender from male to female. Here they were, two women who were married and registered in the same household long before same-sex marriage was legalized.
Both parties were trans women, though at the time of marriage registration, they held National ID cards with different sex markers (one female, one male). The Wu case demonstrated the limitations of Taiwan’s binary legal categories of female and male and openly questioned whether the legal recognition of marriage between two trans persons adequately encompassed their own fluid sex/gender identity. After same-sex marriage legalization in 2019, Taiwan currently has a separate but not equal dual system for different- and same-sex marriage. We will likely see even more challenging marriage cases in the future involving combinations of trans and cis partners with varying legal gender registrations.
3. Trans Wrongs
At School:
“Gender identity” was introduced for the first time into Taiwan’s legal system with the Gender Equity Education Act in 2004. Article 12 of this law reads: “The school shall provide a gender-fair learning environment, respect and give due consideration to students, faculty, and staff with different gender, gender temperaments, gender identity, and sexual orientation” (all wording is from the English version of the law from the Ministry of Education). How does this law apply to trans students? A trans woman, W (pseudonym), prepared three consent forms from three adult roommates and their parents in her application to live in the university’s women’s dormitory. Yet, not only was she rejected by school administrators, she was also the target of their scorn and humiliation. In her subsequent anti-discrimination lawsuit against the university, W received a partial win for damages associated with the humiliating language the school administration hurled against her. The lawsuit was a partial loss, however, as the judges ruled that the school could not have done otherwise with regards to W’s dormitory assignment. For the school administrators, three adult students and their parents providing written consent was not enough to dispel doubts and fears. Neither the school, its administrators, nor the judges that ruled on W’s case could imagine—and thus did not want to spend any time to work out—how to accommodate this trans student. After the ruling, W dropped out of this university.[2]
At Work:
In 2011, and transgender engineer at Mackay Memorial Hospital (a private Christian hospital) named Ms. Chou (周逸人) sued the hospital for wrongly firing her on the basis of her gender, as Chou started to wear female clothes to work after 5 years of working there. The Gender Equality in Employment Act (2002) clearly states that “employers shall not discriminate against applicants or employees because of their gender or sexual orientation in the course of recruitment, screening test, hiring, placement, assignment, evaluation and promotion.” Chou made a complaint to the Gender Equality Commission of the Taipei City Government and won her case. The hospital had to pay a 50,000NT fine. However, after her case became known, it became even harder for her to find a new job. The equal right to work for transgender people in Taiwan is an ongoing struggle.
4. Hot Springs as a Taiwanese Trans Issue
Once upon a time, toilets were a feminist issue in Taiwan. In 1995, feminist student clubs across Taiwanese universities allied with women NGOs to organize a demonstration which involved occupying the men’s public toilets at Taipei Main Station. This demonstration eventually helped to change the law, which now requires that new buildings have sufficient toilets for women. Advocacy for equal toilet access in Taiwan’s public sphere was viewed as a success. Today, when people discuss the abolition of the sexual organ removal surgery requirement for legal gender change, public toilets are often invoked as a site of doubts and fear. In Chou’s complaint against Mackay Memorial Hospital, the hospital administration also employed a similar ‘doubt and fear’ argument that trans women could be disturbing to other women. Could cis women and trans women find a way to share the same public toilet without disturbing each other? Toilets are indeed the ultimate site for feminist debates! Next to public toilet access, I have found that Taiwanese people are especially interested in politicizing hot springs: “How about hot springs? If trans women do not remove their sexual organs, should they go to the male or female section?” Hot springs surprisingly became the ultimate gender segregated site in debates over transgender access in Taiwan.
As a cisgender woman, I feel embarrassed and wrongly privileged that, while trans people are struggling with daily survival at school, at work, and amongst their family, other cisgender people seem to be fully fixated on hot springs. I do not think they fully understand how severe trans rights are infringed upon on a daily basis, and how cisgender people and society in general only care about perceived inconveniences should transgender inclusion be implemented in all walks of life. Legally, rights arguments vastly outweigh inconvenience concerns in weighing the pros and cons during judicial review. Thus, in recent years, some brave trans people and NGO activists have brought legal cases to court and have forever changed the landscape of the trans rights movement in Taiwan.
5. The Right of Self-Determination for Trans People and Their Nation
The first case of a transgender person successfully changing legal gender without proof of surgery was won in September of 2021. The Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) represented a trans woman, E (pseudonym), to file a suit against the Household Registration Office of Daxi District, which is the responsible agency for registration of gender at the local government level. The Taipei High Administrative Court decision carefully stated the types of fundamental rights that were infringed upon by the state regulation, arising from a 2008 administrative order, requiring sexual organ removal for legal gender change. As a nation based on the rule of law, the court does not need to apply this unlawful and unconstitutional administrative order and has the right to order the Household Registration Office of Daxi District to change E’s legal gender so that her rights are not further violated. Though the court’s reasoning was clearly stated within its ruling, it is ultimately up to the Legislative Yuan to legislate gender recognition at the level of law (and not an unconstitutional administrative order). In an ideal world, the administration would continue the work of drafting gender recognition legislation and submitting it to the Legislative Yuan for deliberation. As a rule of law country, Taiwan could enact a gender recognition law that carefully includes all aspects of the Taipei High Administrative Court judgement, allowing both trans and cis people to live under equal protections and assurances.
However, the harsh reality is that no such legislative action has been taken. The previous Executive Yuan did commission me to lead a team to research and develop draft legislation for gender recognition in Taiwan. From October of 2019 to January of 2022, we worked tirelessly for 15 months conducting research on gender recognition requirements in four jurisdictions (the state of California in the US, Germany, New Zealand, and South Korea), as well as organizing four focus groups discussion, one online poll, and one public hearing.[3] Our conclusion was that the unlawful, unconstitutional surgery requirement for legal gender change should be abolished immediately. Consultation and consent must be the bedrock of any bodily gender modification decision that any transgender person makes; any potential surgeries must be gender-affirming and not mandatory.
I still remember interviewing Maria Sabine Augstein in 2012 when I was a visiting scholar in the University of Humboldt in Berlin. She was the eldest son of Spiegel founder Rudolf Augstein and went to Singapore for gender-affirming surgery at the age of 28. She had just returned to Germany to start her legal fight to change her legal gender. Throughout her life, she has helped to shape the contours of transgender legislation in Germany.[4] In 2012, she asked me what the situation was like in Taiwan? I could not give her a good answer. Now, since November of 2024, Germany has adopted a self-determination model. Today, I still do not have a good answer for her, but at least I can write her an email to let her know how her story has moved me deeply and how Taiwan, as a rule of law country, is slowly on its way to a more trans-inclusive future. Reaching this goal requires patience, time, and continued work, as well as continued hope.
AUTHOR
Yi-Chien Chen was a lawyer and now teaches at Graduate Institute of Gender Studies, Shih Hsin University, Taiwan. Yi-Chien received her LL.M. degrees from Cornell Law School (1995) and Heidelberg University (1998); later she returned to Cornell Law School for her J.S.D. on Men and Feminism (2001). Comparative Law and Cultural Studies are her commitment for life. She was the chairperson of Awakening Foundation of Taiwan from 2014-2016. Prof. Chen teaches “Sex, Love and the Law”, “LGBTIQ+ rights seminar” this academic year. She loves horseback riding and cinema. She uses Duolingo to learn new languages.
NOTES
[1] H.Y. Wang (2020), “Constructing Transgender Nationalism: A Rhetorical Framing Analysis of Media Discourse of the ‘Hsieh Chien Shun Event’”; Y.C. Chen (2021), “Gender Identity, National Identity and the Right to Self-Determination: The Peculiar Case of Taiwan,” in: I.C. Jaramillo and L. Carlson (eds), Trans Rights and Wrongs, Ius Comparatum – Global Studies in Comparative Law, vol 54, Springer, Cham, https://doi.org/10.1007/978-3-030-68494-5_8.
[2] For more details about this case, please see <https://tapcpr.org/hot-news/press-release/2021/07/02/長庚小雯案伴盟聲明> (visited on Jan. 31, 2025).
[3] Please see Yi-Chien Chen, 性別變更要件法制化及立法建議 (2022.1.15), 行政院性別平等處。<https://gec.ey.gov.tw/Page/C0A6CC38F299B3B7> (visited on Jan. 31, 2025).
[4] The R.O.C. adopted the German civil law legal system at the turn of 20th century. Hence, what happens in the German legal system usually has a great deal of influence on the modern legal system of Taiwan.