The Dismissal of a Male Police Officer with Long Hair Highlights a Discrepancy between the Laws and Regulations of the Public Sector and the Enforcement of these Laws and Regulations
In response to Paragraph 8 on pages 1 and 2, and Paragraph 20 on page 3 of the State Report (anti-discrimination measures), although the State Report states that “Article 7 to Article 11 of the Act of Gender Equality in Employment prohibit discrimination based on gender, many regulations in the public sector remain to violate the principles of quality and anti-discrimination. For example, Article 1 in the Regulations Governing Police Officers’ Grooming, Etiquette, and Environmental Maintenance states that “male police officers shall not perm their hair, grow sideburns, or grow bangs. Male police officers shall thin their hair upwards with an angle from the base of the back of the neck at a length of no more than one centimeter. Female police officers shall not wear braids or allow hair to fall past shoulders when wearing the police uniform. Female police officers who have hair that falls past shoulders shall wear a bun and use black hair pins or elastics.” These regulations discriminate according to gender, which is an obvious violation of the anti-discriminatory ideology of the Act of Gender Equality in Employment.
Chi-Yuan Yeh, a police officer of the National Police Agency's (NPA) Second Special Police Corps, was fired for growing long hair during his seven-year career as a police officer. During this period, Yeh was reprimanded 58 times for his hair. In 2014, the NPA’s Second Special Police Corps gave Yeh a “C” rating for his yearly performance for receiving reprimands for his hair, and further fired Yeh in 2015 for the same cause, depriving Yeh of his right to work.
For seven years, Yeh repeatedly reported how the previously mentioned regulations violate his rights and lead to gender discrimination to the NPA of the Ministry of the Interior, the Gender Equality Committee of the Executive Yuan, and the Ministry of Labor of the Executive Yuan, yet Yeh's efforts were in vain.9 After Yeh filed internal appeals against his reprimands, the Civil Service Protection and Training Commission failed to abide by Act of Gender Equality in Employment and even further argued that “the regulations specify different rules for the grooming of both male and female officers and do not only have special requests of one gender; thus, the regulations do not violate Article 7 of the Act of Gender Equality in Employment.”10 Furthermore, the commission intentionally dismissed the statement in Article 7 of the Act of Gender Equality in Employment, which states that employers shall not discriminate against applicants or employees because of their gender or sexual orientation in the course of placement, evaluation, and promotion.
In 2014, the Gender Equality Committee’s Project Review Team for Laws Related to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) reached a resolution11 and determined that the regulations did not restrict the hair length of female police officers. From CEDAW’s perspective, which predominately protects women’s rights, restricting hair styles for male police officers does not violate CEDAW’s regulations.
We request the government to abolish or amend the Regulations Governing Police Officers’ Grooming, Etiquette, and Environmental Maintenance as soon as possible, as well as regulations in government departments that violate the Act of Gender Equality in Employment, CEDAW, and the Two Covenants. In addition, the interpretation of human rights should not be restricted to a single covenant; thus, aside from referencing CEDAW to protect women’s rights, cross-covenant references should be made in cases where a person’s rights are violated due to gender stereotypes.
Regarding regulations on sexual offenses in the Criminal Code of the R.O.C. and future amendments, Paragraph 38 to Paragraph 40 on page 9 of the State Report mentioned a resolution reached in the 7th Criminal Court Conference by the Supreme Court held in 2010. This resolution12 states that considering intercourse with children as aggravated sexual assault was a product of public pressure and that the use of the Criminal Code is excessive. The resolution failed to differentiate the difference between the "use of force" and “a violation of consent,” among which the latter is considered as statutory rape13.
According to statistics proposed by the Ministry of Health and Welfare14, there are hundreds of cases involving consensual underage sex every year. The Garden of Hope Foundation’s research15 indicates that the Criminal Code’s chapter on sexual offenses does not comply with the Criminal Code’s ideology of restraint and principle of justice. As a result, relevant cases consume law enforcement-, social and political, and education resources, which is neither economical nor effective in suppressing minors from engaging in intercourse.
The MOJ’s draft to amend the Criminal Code may include deleting elements that constitute “a violation of consent.” This indicates a major misinterpretation of the meaning of consent. The chapter on sexual offenses is centered on whether a victim’s consent is violated or whether a victim’s sexual autonomy is deprived and he/she hence cannot practice sexual autonomy by freewill. Thus, determining whether a victim objectively perceived a violation of consent is critical. A violation of consent causes severe psychological harm to victims, and forced measures such as rape or coercion inflict even greater damage. Certain cases involve overly young or mentally challenged victims who are unaware of how to or cannot reject, in which case elements that constitute aggravated sexual assault are not applicable. However, exceptional regulations can be made for exceptions. Thus, elements that constitute “a violation of interest” do not need to be deleted.
Cases of consensual underage sex and the underage party should be exempt from charges of having intercourse with minors. We suggest that the 7th Criminal Court Conference by the Supreme Court include “people above 18 years of age” as an element and clearly state this element in the law.
Intercourse or obscene acts between minors based on mutual affection should be decriminalized, thereby correcting social perceptions and reallocating the costs of incarceration and legal proceedings to promoting effective counseling and education, sex education, and sentimental education to provide true protection for minors.
We recommend stratifying and classifying sexual offenses in the Criminal Code. “A violation of consent” could be added as a minor crime to address cases where means of rape cannot be proven or were not used, thereby offering judges more options.
In response to Paragraph 41 to Paragraph 45 on page 9 to page 11 of the State Report, which addresses the broadcast media's actions in promoting gender equality, Taiwan's broadcast media often shows content that involves gender discrimination. For example, when reporting cases of sexual violence, the media often highlights the victim’s gender qualities, such as clothing and appearance. In recent years, many news stories have been exaggerated, such as cases involving parent-child conflicts in restructured families, religious abuse, murders by caregivers, or NEETs killing their parents. However, the State Report indicates that cases that were processed according to the Radio and Television Act were in the single digit (Table 7). The “Cases that Did Not Comply with the Guiding Principles of Broadcast Media Producing and Broadcasting Gender-Related Content in 2015”16 indicates that for both television shows and advertisements, violations were only penalized with warnings, administrative guidance, or discussions between professionals and broadcast/media personnel. This does not inhibit the media from attracting the audience through explicit content, much less facilitate broadcast media to promote gender equality.
On April 4, 2014, CTi News’s News Tornado reported on women who participated in the Sunflower Movement. The show intentionally objectified, slandered, and belittled the women, and discriminated against women who participate in civil and political activities. After the show was aired, the Awakening Foundation received more than 80,000 complaints, and the Garden of Hope Foundation received over 50,000 complaints. However, the National Communications Commission (NCC) didn’t take action and only claimed that a review mechanism had been launched. The public became infuriated and began calling CTi News and the NCC to protest, after which the NCC claimed that it had received 551 complaints, a drastic difference compared to the statistics mentioned above. This indicates the NCC’s incompetence in responding to news stories with major gender controversies in a timely manner. This case violated the Constitution of the R.O.C. and CEDAW’s principles on gender equality. However, the NCC only administered a fine of NTD $500,000 to CTi News based on Item 3, Article 17 of the Satellite Broadcasting Act, which is an insignificant amount for a television station.
Aside from satellite and television broadcasts, gender discrimination is also common in paper media. In May 2015, the Liberty Times falsified that journalist Yen-Chiu Lee was the protagonist of a pornographic novel. Lee responded, stating that “the age when the media followed principles, were professional, and respected boundaries is now gone, and there is no going back. I feel pessimistic as I see that this is the media trend for the future.”
The government should request the media to receive comprehensive gender equality education and training, and establish a self-disciplinary committee: The Media Reform Alliance urged newspaper unions to establish a self-disciplinary mechanism but was not valued. Thus, government agencies should be responsible for requesting newspaper unions to include gender discrimination as an item of self-discipline.
We recommend that the NCC invite experts, scholars, and representatives of public interest groups that specialize in gender equality issues to participate in regular workshops or forums to facilitate television media providers to assess their perspectives, thus preventing them from intensifying social stigma and discrimination.
In response to Paragraph 188 on page 59 of the State Report, although the Ministry of Education has offered many in-service training courses and events to elevate educator’s awareness of gender equality education, many teachers continue to express sexist comments in public17, which indicates that Taiwan’s educators have a poor understanding of gender equality education.
The cause of the problem is insufficient and ineffective gender equality education for educators. For example, the Ministry of Education subsidized courses on teaching sentimental education and gender quality education for 60 universities in 2015; however, Taiwan has more than 160 universities, which clearly indicates an insignificant amount of subsidies. Moreover, the Ministry of Education did not mention the subsequent development and effectiveness of the subsidized courses. The State Report also failed to mention the development, planning, and effectiveness of relevant courses in preschools, elementary schools, junior high schools, high schools, and vocational high schools. As these courses are not compulsory for all educators, a high proportion of participants regularly participated in different courses. For certain school departments, only a few employees were assigned to regularly take part in these courses. As a result, many teachers continue to lack any concept of gender quality education. Finally, the Ministry of Education also exhibits a lack of the planning of in-service training courses. Many education units under the Ministry of Education hold or participate in almost identical sexual harassment and sexual assault prevention courses each year. Thus, even if educators participate in training courses on gender equality education, their perception of gender equality remains at the level of “sexual harassment is unacceptable,” yet they are ignorant of basic concepts such as eliminating gender barriers, subverting gender stereotypes, and gender diversity. Teachers’ ignorance and gender stereotypes, which lack gender awareness, are then passed on to students, thus creating substantial obstacles in gender equality education.
We suggest that the Ministry of Education must first recognize that it has made little effort in promoting gender equality education internally, determine the needed planning for in-service training courses based on practical education needs and the diversity of gender equality education, and then provide adequate subsidies and enforce all educators to participate in all basic gender equality courses.
Schools’ Gender Equality Education Committees are Only Capable of Processing Sexual Harassment Cases
In response to Paragraph 68 to Paragraph 70 on page 11 and page 12, Paragraph 28 on page 13, Paragraph 80 to Paragraph 82 on page 29, and Paragraph 171 on page 39 of the Concluding Observations and Suggestions in First State Report on ICESCR and ICCPR, according to the Gender Equity Education Act, schools should establish gender equality education committees and proactively promote gender quality education-related affairs18. However, the gender equality education committees in most schools have only fulfilled the obligation of preventing and investigating sexual harassment and sexual assault, while the promotion of gender equality education is ineffective. In addition, it is also common for schools’ gender equality education committees to overlook or ignore cases of sexual bullying in schools19.
There are two major causes to why schools’ gender equality education committees are incompetent:
The Ministry of Education requests schools to supply the funding and personnel for their own gender equality education committees.
We suggest the following:
The government should subsidize schools’ gender equality education committees with sufficient resources, abundant administration, professional personnel and funds, and clearly regulate the minimal amount of subsidies that should be applied to education, thereby enhancing basic gender quality education and to solve the root cause of the problem.
<li><p>The Ministry of Education should proactively participate in and subsidize the gender equality education plans proposed by schools’ gender equality education committees. The Ministry of Education should include items such as the reduction of gender barriers, improvement of gender diversity education, prevention of gender bullying and discrimination, promotion of diverse families, and increase of schools’ gender-friendly facilities in evaluations and perceive these items with the same importance as sexual harassment prevention. Furthermore, the Ministry of Education should strictly prohibit religious forces that are detrimental to gender equality education from entering schools.</p></li> <li><p>The Ministry of Education should limit the composition of members and further subsidize schools’ gender equality education committees and prohibit the inclusion of members who are not professionals in gender equality education. Gender equality education committees should be further stratified and its functions clarified. Other units within the school must comply with the regulations of the gender equality education committee, thereby achieving gender mainstreaming.</p></li> <li><p>The points mentioned above can be employed via executive orders or the addition of enforcement rules for the Gender Equality Education Act, thereby overcoming the difficulties of achieving gender equality on campus within a year or two.</p></li> </ol>In response to Paragraph 330 of the ICESCR
Taiwan’s Medical Care Act20 endows the “interested party” with medical rights such as signing the letter of consent for anesthesia and surgery. According to the Ministry of health and Welfare's letter of interpretation, a same-sex partner is classified as an interested party in the Medical Care Act. As of 2015, a number of counties/cities in Taiwan have begun allowing same-sex couples to register as partners at household registration offices and claimed that registered couples could sign letters of consent at medical institutions as an interested party.
In actuality, partnership registration has not increased the right to medical decision making of same-sex couples. Medical malpractice has become a growing issue in Taiwan. From the perspective of civil law, an interested party has no right to claim compensation for the injury or death of a patient. From the perspective of criminal law, an interested party does not have the right to press charges. To self-preserve, most medical personnel are inclined to have family members with legal status to sign important medical documents even if a same-sex partner is present. To avoid lawsuits, certain hospitals even clearly specify the priority of family members with legal status over interested parties on letters of consent (no penalties apply to hospitals that refuse to have a same-sex partner to sign medical documents). This problem involves many different aspects, including visitation right, the right to be informed, the right to medical consent, and even medical power of attorney.21 Under current conditions, same-sex partners are unable to participate in medical decision making. There are even cases where same-sex partners are excluded from the intensive care unit visitation list by the patient’s original family, and only learned of their partner's death afterward. As of March 2016, only six municipalities in Taiwan allow partnership registration. Thus, the medical rights of same-sex couples dwelling in cities/counties that do not allow partnership registration are even more susceptible to violations. Furthermore, this problem is not exclusive to same-sex couples, it also affects other non-marriage based families such as single persons, the divorced, and cohabiting heterosexual couples.
The objective of the Patient Autonomy Act, promulgated in January 2016, was to provide actual legal status for medical agents.22 Same-sex partners who cannot assist the patient in signing letters of consent at the medical site due to a lack of legal identity can quote the Patient Autonomy Act and self-appoint as a medical agent, thereby assisting the patient in signing letters of consent or executing pre-established medical decisions. However, when a same-sex partner’s opinions differ from that of the patient’s original family members, the hospital might prioritize the original family members’ opinion to avoid being sued. Thus, same-sex partners might still not be able to effectively execute their right as a medical agent due to the absence of legal status.
Article 10 of the Patient Autonomy Act23 states that if a same-sex partner becomes a medical agent, he/she will be excluded as the patient's legatee and beneficiary, which makes medical power of attorney and the right to receiving estate and insurance mutually-exclusive, leaving same-sex couples with only one of the two options.
Specific Suggestions:
To avoid differences between the medical rights of same-sex families and that of families based on heterosexual marriage, government agencies should proactively resolve problems pertaining to the violation of medical rights, such as medical institutions refusing same-sex couples to sign letters of consent.
<li><p>Regarding the Patient Autonomy Act,</p> <ol> <li><p>specific regulations should be established to state that medical agents have equal priority as the patient when making medical decisions. As for the priority of other legal family members, patient autonomy should be considered, thereby creating a comprehensive medical decision-making status for same-sex couples.</p></li> <li><p>Amend the criteria for medical agents in the Patient Autonomy Act to prevent same-sex families from having to choose between the right of legatees or the right of beneficiaries.</p></li> </ol> </li> </ol>In response to Paragraph 330 of the ICESCR
The Second State Report on the ICCPR did not mention issues related to the reproduction of same-sex couple, which indicates that Taiwan's government has completely ignored this subject.
Currently, the Artificial Reproduction Act is centered on providing artificial reproduction technology for infertile heterosexual couples. Severe penalties are employed for violations, such as revoking physicians’ license to practice. As same-sex marriage is not yet legalized in Taiwan, same-sex couples are excluded as users in the Artificial Reproduction Act. In other words, the Artificial Reproduction Act is a law that discriminates against families that are not based on a marital relationship.
Regarding surrogacy, which may be relevant to male same-sex couples, the government only referred to Item 16.33 and Item 16.35 of the Second State Report on CEDAW and stated that as consensus is yet to be reached on this issue and to respect the opinions of all parties, the government will conduct a poll and reference various information for formulating a draft bill.24 However, the government has not taken any action on reviewing the surrogacy system since the completion of the review of the Second State Report on CEDAW. When it comes to human right issues, the government should not use means such as polls to establish evidence that supports its discourse and rational. The government should adopt the ideology behind the Two Covenants, which is to protect and maintain equal rights for minorities and disadvantaged groups.
Article 12 of the Artificial Reproduction Act states that where the implementation of artificial reproduction involves the recipient couple’s acceptance of sperm donated by a third party, the performing medical care institution shall obtain the husband’s written consent. That is, if a woman decided to conduct oocyte cryopreservation prior to marriage and later got married, her husband must provide written consent before the oocyte can be extracted and used in the future. If a woman is not in a marital relationship, she cannot receive artificial reproduction. Hence, the Artificial Reproduction Act is discriminative and deprives women of their personal autonomy.
Taiwan’s families that are not marriage-based are completely excluded from the Artificial Reproduction Act. Thus, alternative families are forced to use the transnational medical system to reproduce. Traveling to countries such as the U.S. or Canada for their technology is economically25 burdening and time-consuming. Furthermore, couples who do so must assume the high risks of receiving transnational medical care.
From 2014 to 2015, a same-sex family that had a child via transnational artificial reproduction filed a lawsuit to enable their child to enjoy comprehensive legal rights and protection. The family claimed that same-sex families should share custody, yet their case was overruled by the court for discriminative reasons.26
Specific suggestions:
The Artificial Reproduction Act should be amended to expand the applicable subjects beyond “those who are infertile” and “husband and wife” (i.e., families based on marriage), thereby allowing alternative families to also use artificial reproduction technology.
<li><p>Taiwan’s government should ensure equal reproductive care for all women in Taiwan and strive to reduce cases in which women are forced to resolve reproductive obstacles by seeking transnational medical care.<sup>27</sup></p></li> <li><p>Regarding surrogacy, the government should continue to communicate with the public rather than use polls to resolve human rights issues.</p></li> <li><p>The government should consider the best interests of the child, as stated in the Convention on the Rights of the Child, and recognize the parental rights of the parents (the parent who are not related to the child by blood) of children who were artificially reproduced by same-sex families, thereby ensuring comprehensive legal rights for same-sex families.</p></li> </ol>This report provides responses and supplementary comments to points 327 to 330 in the 2nd State Report on ICCPR and the concluding recommendations adopted by the international group of independent experts in the 2nd State Report on CEDAW.
Based on points 78 and 79 of the concluding recommendations adopted by the international group of independent experts in the 1st State Report on ICCPR & ICESCR on March 1, 2013, which specifically point out that:
Taiwan’s current laws do not protect marriage equality (same-sex marriage) or cohabitation rights for same sex or different-sex couples, which is deemed discriminatory.
Point 33 of the concluding recommendations adopted by the international group of independent experts in the 2nd State Report on CEDAW, on June 26, 2014 specifically points out that:
The Review Committee is concerned at the lack of legal recognition of the diversity of families in the country and that only heterosexual marriages are recognized but not same-sex unions or cohabiting partnerships. This is discriminatory and denies many benefits to same-sex couples or cohabiting partners. Thus, the Experts recommend that the Civil Code be amended to protect the diversity of families in the country. (Note: this recommendation is the same as the above recommendation from the Review Committee in the 1st State Report on ICCPR & ICESCR.)
Nevertheless, the Taiwan government has failed to correct the deficiencies of human rights as mentioned in the Experts’ concluding recommendations until now, and has even worked against the recommendations in certain cases as listed below:
The Ministry of Justice denies that “the lack of legal recognition of the diversity of families in the country in which only heterosexual marriages are recognized but not same-sex marriages or cohabiting partnerships is discriminatory.” The Taipei City government sought a constitutional interpretation regarding whether Taiwan's Civil Code violates the Constitution by restricting marriage to heterosexual couples in July 2015. However, the Ministry of Justice concluded that marriage as recognized in the Constitution is limited to an agreement to marry made between one male and one female party. Same-sex marriage is thus neither a fundamental human right in the Constitution and the absence of regulations regarding same-sex marriage does not constitute a violation to the Constitution. The Ministry of Justice stated that the regulations regarding marriage as stipulated in the Civil Code have not violated the Constitution and provided their legal opinions for the Executive Yuan’s reference. While the Executive Yuan did send the request for constitutional interpretation submitted by Taipei City Government to the Grand Justices for review, the Ministry of Justice’s comments justifying the lack of legal protection of same-sex partners as not violating the Constitution, and denying the discrimination and social exclusion that result from it has demonstrated the authority’s lack of sensitivity to such issues, which is especially troubling.
The violation stated above is, in our opinion, resulted from the idleness of administrative departments and Legislative Yuan (parliament), which is the result of a lack of political will of those in power to provide equal rights to same-sex partners and cohabiting couples. To get to the bottom of the issue, the government should seriously acknowledge that “the lack of legal recognition of the diversity of families and that only heterosexual marriages are recognized but not same-sex marriages or cohabiting partnerships is discriminatory and a denial of human rights.” Based on the acknowledgement, the government should further proceed to collect and collate statistical data on sexual minority and unmarried cohabiting families and to amend the Civil Code accordingly.
<li><p>The Ministry of Justice still tried to use public opinion as a condition for granting human rights protection and even had made contradictory remarks regarding the results of the public survey on same-sex marriage despite the fact that the survey was initiated by the Ministry of Justice itself. The Ministry of Justice only quoted survey results when the results were considered in line with its position and used such results as grounds to postpone the amendment to the Civil Code. For example, the Ministry of Justice conducted an online poll on legalizing same-sex marriage on August 3, 2015, disregarding the concerns and concluding recommendations as expressed by the Experts; and the results showed a majority in favor of legalizing same-sex marriage. To many people’s surprise, the Ministry of Justice conducted a further phone survey to obtain new results and used these results as a ground for postponing the amendment to the Civil Code. Based on the results of the phone survey in December 2015, the Ministry claimed that “the public opinion is divided on the form and ways to protect same-sex partners” (see Point 329 in the 2nd State Report on ICCPR) and thus the amendment to the Civil Code was further delayed on grounds that there was not sufficient social consensus. Under such circumstances, the Ministry of Justice claimed to initiate amendments in “two phases” in point 329 of the 2nd State Report on ICCPR. This is unreasonable in terms of the time consumed and costs incurred to adopt two-phase amendments instead of directly amending the Civil Code to allow same-sex partners to marry. The Ministry of Justice has never provided convincing statements to justify the two-phase amendment approach which violates the principle of substantive equality for same-sex partners.</p></li> <li><p>The Ministry of Justice has continued to refuse to amend the Civil Code to include clauses to protect LGBTIQ partners right to marriage as well as heterosexual couples the right of cohabitation.</p> <ol> <li><p>The marriage/family institution is regulated by the Civil Code in Taiwan. There are no technical difficulties in amending the Civil Code to include the rights to marry for the LGBTIQ, which would help realize the principle of equality (we believe that “separate is not equal”). In the previous legislative term, there were already two proposed bills to amend the Civil Code regarding marriage equality (same-sex marriage); however, even after the new government took office, the Ministry of Justice continues to use stalling tactics and fails to give reasons for not amending the Civil Code. It has once again outsourced a research on a “special law” to govern the rights of same-sex partners in June 2016. The lack of a substantive reason for the Ministry of Justice to sponsor further research that aims to draft a “special law” on the basis of segregated legislation and the absence of a specific timetable for the legislation of same-sex marriage are clearly just further avoidance and delay in fulfilling the principle of substantive equality. We’d like to voice our strong opposition and protest the “segregation policy” and continued stalling strategy by the Ministry of Justice. In addition to the inaction of Ministry of Justice, the current opinions upheld by the Ministry of Foreign Affairs also prohibit legal same-sex partners that registered their marriage overseas from filing for long-term residency in Taiwan as spouses, which has greatly undermined the rights to reunite for transnational same-sex couples/families.</p></li> <li><p>The current laws in Taiwan only protect “heterosexual marriage between a man and a woman” while cohabiting heterosexual couples do not have any substantive legal protection. These families exist, but like same-sex partners, they are provided no legal protection in terms of the rights of property, tax, labor, social welfare, litigation status, acting as agents for each other in daily household matters and many other areas.</p></li> </ol> </li> <li><p>To add further context to the above, many local governments have begun to accept civil partnership household registration for same-sex partners, but this household registration does not carry legal weight as the legal status of spouses. Rather this registration only serves to establish identity in rare circumstances (for example, the permission of same-sex couple’s visitation rights and the right to make medical decisions for each other; or the right to take “family care leave” as regulated in the labor laws). However, the rights derived from the household registration are a far cry from the rights enjoyed by legal spouses in Taiwan, that is, the household registration is neither a synonym to marriage nor does it solve the problems and discrimination faced by same-sex partners every day in terms of social and legal aspects. In addition, the household registration is restricted to same-sex couples but not heterosexual cohabiting couples, thus continuing the lack of legal protection for heterosexual cohabiting couples that are not yet in a marriage.</p></li> <li><p>There is currently a lack of statistical data on all unregistered unions. Even though the Review Committee of CEDAW specifically requested the inclusion of such data in the next State Report, the Taiwan government has failed to collect and collate the data to date.</p></li> <li><p>We believe that there are strong reasons for the government to conduct a census regarding sexual minority and unmarried cohabiting families: it is by referring to a reliable data source that sexual minority and unmarried cohabiting families can be included in the Sustainable Development Goals (SDGs) and other human rights categories and we can correctly identify the influence on the income, safety, education, health, domestic violence and migration that result from the stigmatization and prejudice against sexual minority and unmarried cohabiting families. This will also help us understand and define the preferences and life goals, evaluate the efforts that should be devoted by the government to realize the human rights of sexual minority and unmarried cohabiting families and the effectiveness of the plans (if any) put forward by the government as well as the fair distribution of the resources devoted.</p></li> <li><p>The lack of legal protection for same-sex partners and unmarried (heterosexual) cohabiting partners under current laws violates Articles 2.1, 2.2, 23.1, 23.2 and 26 of the International Covenant on Civil and Political Rights (ICCPR).</p></li> </ol>ANIKI, a gay sauna in Taipei City, was searched 85 times in 2015 by the same police department, which equates to an average of 7 searches per month. On average, each search was conducted by more than 12 police officers. The number and scale of inspections at ANIKI significantly exceeded that of similar businesses, which are also generally highlighted in police searches. Other popular gay venues around Taiwan have exhibited similar situations on different levels. This indicates that the government uses its public authority to violate the privacy (Article 17 of the ICCPR) and the right to equality (Article 2 and Article 3 of the ICCPR) of gay businesses and gay persons.
The Police Power Exercise Act came into effect in 2003. The act includes regulations on criteria for conducting police searches, measures for verifying citizens’ identification, and responses to citizens’ objections and complaints. The objective of these regulations is to regulate the government’s use of public power and to safeguard citizens’ rights. Although ANIKI was listed as a key location for police searches, no significant criminal cases were uncovered during 2015, which sufficiently proves that the polices’ claims of criteria for conducting searches are non-existent. The true reason for frequent searches is discrimination against the LGBT community.
During the searches, ANIKI’s employees and customers were repeatedly mocked and threatened for their sexuality.28 In a coordination meeting held with residents in living in the community where ANIKI was located, the police showed many photos taken during the searches of condoms littered on the floor of the sauna to residents. The police’s objective was to connect gay people with various stigmas, such as sex, AIDS, and crime. Stigmatization is a typical form of manipulation that stems from discrimination. This case demonstrates a difference in law enforcement caused by discrimination, and the violation of the right to equality and privacy, which directly violate Article 3 of the ICCPR. The business in question was repeatedly violated by public authority and filed numerous complaints according to relevant law, yet never received a proper response. This indicates that the complaint mechanism is ineffective and insufficient for protecting citizen’s rights from being violated by public authority or resorting citizens’ rights after they have been violated.
We suggest that both the central and local government should establish a set of clear and transparent regulations, review, and complaint mechanisms regarding the cause, number, frequency, method, and the process of police searches. These mechanisms should not be established solely by the police; rather, representatives of disadvantaged groups whose rights are easily violated by improper law enforcement should be allowed to participate. These groups include the LGBT community, women, migrant workers, marriage migrants, and people with physical and psychological disabilities. By separating the establishment and the enforcement of regulations, unjust law enforcement is prevented. After establishing a regulatory mechanism, aside from passively conducting regular reviews of police searches, the government should also ensure that compliant channels are plentiful and effective. Furthermore, the government should provide LGBT and gender equality education during the cultivation and in-service training of police officers, thereby proactively eliminating stigma and discrimination against the LGBT community.
On the surface, the objective of the HIV Infection Control and Patient Rights Protection Act is to protect the rights of carriers. However, the act contains articles that criminalize HIV/AIDS and punishes unaccomplished offenders (Article 21). As the State Report failed to mention controversies regarding amendments to this act,29 Taiwan Tongzhi Hotline Association believes that it’s important to highlight that this act severely violates the rights of carriers. The act also violates the ICCPR’s statement that all persons are equal before the law, the ICCPR’s anti-discrimination ideology, and the presumption of innocence (Article 26, Article 2, and Article 14).
Article 21 of the HIV Infection Control and Patient Rights Protection Act was stipulated with the concept of HIV/AIDS as being different from other forms of infectious diseases, and the penalties are equivalent to that of aggravated assault. In addition, Article 21 further penalizes unaccomplished offenders. In other words, whether or not an infection to another person is caused, the carrier is seen as guilty. In actuality, as of March 21, 2016, defendants in 17 cases in Taiwan were found guilty under the act, yet no infections were caused in 13 of these cases. Additionally, the plaintiffs in two of the cases were also carriers. Despite prolonged legal proceedings, the plaintiffs were unable to prove that they were infected by the defendants.30 In “unaccomplished” cases, whether parties concerned are carriers is not an attendant circumstance that constitutes a case. Thus, many cases are constituted based on the definitions of unsafe sex as announced by the Center of Disease Control.31 Thus, if carriers engage in unsafe sex, they are unanimously seen as unaccomplished offenders regardless of the level of risk for infections. This definition is overly vague and deviates from international medical trends on HIV/AIDS.32 If a judge has little medical knowledge on HIV/AIDS, he/she will adopt the interpretations announced by competent authorities for determining risky behavior,33 which often leads to judgments that put carriers at a disadvantage.
According to the International Guidelines on HIV/AIDS and Human Rights published by United Nations Programme on HIV/AIDS (UNAIDS),34 criminalizing HIV/AIDS is not only ineffective towards prevention but also causes people to refrain from getting tested or seeking medical attention. Placing complete responsibility of engaging in safe sex on HIV/AIDS carriers can also cause stress among carrier communities. According to our practical experience, non-carriers who terminated a relationship with carriers sometimes take advantage of this act and file lawsuits as a form of emotional outlet. As relevant laws are detrimental to HIV/AIDS prevention, decriminalizing HIV/AIDS has become an international trend.35
Conclusions and suggestions: The UN's the International Guidelines on HIV/AIDS and Human Rights clearly states that criminal and/or public health legislation should not include specific offenses against HIV/AIDS. Thus, the stipulation of specific offenses against HIV/AIDS clearly violates the principle of quality under various international law human rights and further violates Article 26 of the ICCPR, which dictates that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In recent years, the UN has recommended signatories of the Two Covenants to review their criminal law and decriminalize HIV/AIDS. Thus, we suggest that Taiwan's government should immediately delete laws regarding intentional infection, that is, Article 21 of the HIV Infection Control and Patient Rights Protection Act.
Those with multiple identities refers to people who are simultaneously gendered disadvantaged and social disadvantaged, such as a gay person who has a mental disorder. The State Report failed to mention the rights of those with multiple identities.
The government has an insufficient understanding of those with multiple identities and further dissociate disabilities from gender identity, or misbelieve that gender identity leads to disabilities. For example, the government may perceive that the sexual orientation of gay people with early psychosis is caused by their mental disorders.
Currently, Taiwan’s laws (e.g., People with Disabilities Rights Protection Act) do not protect those with multiple identities. Thus, both support systems and services neglect those with multiple identities. For example, a gay person with a mental disorder can only receive services for mental disorders, yet has no means to express that sometimes factors that trigger the onset of the mental disorder are caused by their identity as a gay person. Even when establishing a support system, the government continues to disregard new forms of services and views multiples identities separately, which indicates a neglect of the uniqueness of multiple identities.
We suggest that:
the People with Disabilities Rights Protection Act should be amended to include those with multiple identities and
<li><p>new forms of services be included in extant support systems for those with mental disorders.</p></li> </p>
Item 27 of the 2012 First State Report on ICCPR, which details the review of complaints of discrimination, and the 2015 Second State Report on ICCPR36 indicate the government has not effectively enforced the anti-discrimination clauses under the Immigration Act. In other words, these clauses are seen as mere references and have not been examined in detail. In the past, the Anti-Discrimination Team of the National Immigration Agency often dismiss complaints on the grounds of “the complainant is not a party concerned,” “unable to determine if the complainant’s rights have been violated,” and “the complaint subject’s cognition and strong perceptions are protected under freedom of speech.37” This indicates that the current review mechanism has an overly narrow interpretation of factors that constitute discrimination, and completely overlooks the damage that hate speech inflicts on victims and groups of discrimination.
In addition to the incompetence of the anti-discrimination clauses of the Immigration Act, other regulations that protect the principle of equality are scattered in various specific regulations. No special laws exist to uniformly prohibit all forms of discrimination that individuals and groups must bear.38 These problems violate the anti-discrimination ideology of Article 2 of the ICCPR39.
We suggest the government to stipulate a special anti-discrimination law that includes practical penalties, which can effectively amend damage caused by discriminatory speech or behavior. In addition, sensitivity training on quality should be enhanced for future agencies responsible for reviewing discrimination complaints, because while safeguarding freedom of speech, review units cannot ignore the power relations between advantaged groups and disadvantaged groups. Finally, the government should proactively promote social education that elevates quality, thereby fulfilling the vision of protecting human rights.
Regarding the promotion of gender quality in broadcast media as stated in Paragraph 43 of the State Report, aside from the various government-established consultation mechanisms on producing and broadcasting gender issues, many media self-regulation mechanisms are provided by media transformation groups, such as the Media Reform Alliance, the Campaign for Media Reform, and Taiwan Alliance for Advancement of Youth Rights and Welfare. The development of Taiwan’s media self-regulation is attributed to the thriving media transformation civil movement and the establishment of various laws and regulations; hence, different types of self-regulation mechanisms have been established for various types of media, such as cable television, public media, printed media, and online media. The Media Reform Alliance has received at least 120 complaints in the past four years from various self-regulation mechanisms. The most common types of news that receive complaints are, in sequential order, "news on bloody or violent events (20%),” “news on harm to children and youth (18%),” “news on sex and nudity (13%),” “news on sexual assault and sexual harassment (12%),” and “news on crime (12%).” The top three causes of complaints are “overly details description of the crime (25%),” “the violence and bloodiness causes discomfort (23%),” and “a violation of the concerned party’s privacy (20%).” Among different aspects of news reports, “news photos” receive the highest proportion of complaints at 30%, followed by the content of the report (20%). Under these conditions, media self-regulation mechanisms serve as a safety valve for the media. When the media inappropriately invades people's privacy, consumes crimes and the crime process, fails to fulfill its responsibility of providing balanced reports, encourages public trails, labels specific subjects, shows inflammatory content, and causes social opposition for boosting ratings and hits, media self-regulation mechanisms can be launched to control and review the reported content. Thus, media self-regulation mechanisms can request the media to carry out due diligence, provide balanced reports, maximize public interest, and practice media professionalism that emphasizes empathy and gender sensitivity, thereby reducing harm and protecting the human rights and respecting the privacy of disadvantaged groups.
However, no number of media self-regulation mechanisms and relevant laws and regulations can accommodate the rapid development of new media. In an era of digital streaming, all media are seeking greater space for development. With the lead of Apple Daily, many news companies have now developed live news streaming on the internet. To rapidly release the latest news and to maximize hit rates, the production process of new is shortened. As a result, editors are unable to adequately screen news content. Hence, the internet is littered with news that is full of gender discrimination, exaggerated, and lacks verification. A large supply of news stores results in a content farm. Thus, the greatest challenge that currently exists for medial self-regulation mechanisms is live news streaming on the internet, a form of news reporting that is solely centered on speed and no longer values interviews, verification, and screening content, which has degraded the professional standards and value of news.
To prevent Taiwan’s media environment from further deterioration, we suggest the following:
Focus on elevating the influence of non-mainstream media, such as public media, independent media, social media, and self-media.
<li><p>When facing self-regulation crises and challenges brought by live news streaming on the internet, competent authorities responsible for managing the media the media itself should address the chaos caused by live news streaming on the internet and enhance the screening functions of media self-regulation mechanisms. The NCC and the Ministry of health and Welfare should assume responsibility as competent authorities and urge Taipei Newspapers Association’s Children and Youth in the News Self-disciplined Committee and Institute of Watch Internet Network to collaborate and establish self-regulation mechanisms for news complaint reviews according to Article 45, Article 46, and Article 46-1 of the Protection of Children and Youths Welfare and Rights Act.</p></li> </ol>
- The NPA insists that “due to the special nature of police duty, officers on duty should have an appearance that matches the perception of the general public; thus, regulations on clothing and grooming are not based on gender discrimination.” The Gender Equality Committee of the Executive Yuan and Ministry of Labor repeatedly referred the complaints to the NPA, the Ministry of the Interior, and indicated that this was a case of gender discrimination against civil servants and complaints should thus be filed according to the channels provided by the agency in question. The Executive Yuan and Ministry of Labor are competent authorities; however, both were unable to resolve the gender discrimination inflicted on the police officer, which was caused by the gender stereotypes in the NPA's grooming regulations.
- Gong-Shen-Jue-Zi-Di No. 0267 of the Civil Service Protection and Training Commission.
- Meeting minutes of the 19th meeting of the Project Review Team for Laws Related to CEDAW, The Gender Equality Committee of the Executive Yuan, July 17, 2014.
- The 7th Criminal Court Conference by the Supreme Court held in 2010 reached a resolution that persons engaging in intercourse with victims younger than seven years of age shall be charged with aggravated violation of consent under Item 2, Paragraph 1, Article 222 of the Criminal Code.
- Y. C. Cheng, (2010). The Application of the Criminal Code to Cases Involving Sexual Contact with a Minor Under 16 Years of Age – An Analysis of the Criminal Court Judgment in Tai-Shang-Zi-Di No. 4894 and the 7th Criminal Court Conference by the Supreme Court held in 2010. The Law Monthly, Vo. 61, Ed. 12.
- In 2011, a total of 1,260 people were involved in sexual offenses where the victim was younger than 16 years of age and the offender was younger than 18 years of age (all sexual assault cases, including forced sexual intercourse) were reported to relevant authorities, with 50.79% of cases where both parties were under 16 years of age. In 2012, a total of 1,464 people were involved in sexual offenses where the victim was younger than 16 years of age and the offender was younger than 18 years of age (all sexual assault cases, including forced sexual intercourse) were reported to relevant authorities, with 51.98% of cases where both parties were under 16 years of age. For further details, please refer to the meeting minutes (part I) of the Meeting on Relevant Issues Derived from the Process of Managing Sexual Assault Cases (October 7, 2013), Department of Protective Services, Ministry of Health and Welfare.
- M. L. Liao, S. F. Wang, J. J. Xu, J. P. Chen, (2014). A Review of Policies on Victims of Sexual Assault and the Promotion of an Extended Project – Using the Law of Consensual Underage Sex to Discuss the Effective of Preventing Sexual Assault Among Minors. The Garden of Hope Foundation, Taipei City.
S. F. Wang, J. J. Xu, J. P. Chen, (2015). Using the Law of Consensual Underage Sex to Examine Analyses on the Economics of Law for Sexual Assault Prevention. The Garden of Hope Foundation, Taipei City. - Cases that Did Not Comply with the Guiding Principles of Broadcast Media Producing and Broadcasting Gender-Related Content in 2015, NCC.
- A professor at the College of Medicine, Nation al Taiwan University once said during a lecture “why should girls study so hard? You’re going to be married off one day anyway.” During National Taiwan University’s orientation, a teacher who taught gender equality stated that “boys should be outgoing, healthy, and masculine, whereas girls should listen to boys. That’s how you’ll be able to get a girlfriend or boyfriend.” The Department of Mechanical Engineering, National Taiwan University directly quoted the Bible in this year’s university entrance exam in an attempt to convince students that monogamy is the only natural form of marital relationships, and further describe other types of families as “exceptions that will not be further discussed.” For further details, please refer to National Taiwan University Student Association’s statement on the controversial question in the 2016 university entrance exam for the Department of Mechanical Engineering.
- Article 6 of the Gender Equity Education Act:
- Integrate related resources in various departments of the school, draft gender equity education projects, and implement and examine the results of the projects.
- Plan and implement activities related to gender equity education for students, staff, faculty, and parents.
- Research, develop and promote courses, teaching, and assessments on gender equity education.
- Draft and implement regulations on gender equity education and prevention of sexual assault and sexual harassment on campus, establish mechanisms to coordinate and integrate related resources.
- Investigate and handle cases pertinent to this Act.
- Plan and establish a safe and gender-fair campus.
- Promote gender equity in family education and social education at a community level.
- Other matters related to gender equity at school or community level.
- Seventh-Grader with Gender Neutral Appearance is Sexually Bullied, Apple Daily, October 18, 2015.; Three Junior High School Students Given Demerits for Testifying Against Sexual Bullying, Legislator Yen-Hsiu Lee Criticizes the School for Closing the Case Carelessly, ETtoday, July 22, 104.
- Article 63 to Article 65, Article 74, Article 75, and Article 81 of the Medical Care Act
- Please refer the Ministry of Foreign Affair’s response on June 15, 2015 to an official document submitted by Attorney Victoria Hsu, CEO of the Taiwan Alliance to Promote Civil Partnership Rights (Wai-Shou-Ling-Er-Zi-Di No. 1055120732).
- The Hospice Palliative Care Act states that when the expression of the decision maker's will becomes impossible, the medical agent can assist the patient in signing documents on whether to choose hospice palliative care or to use life support treatment. If the decision maker does not have a medical agent, only a family member with legal status can sign letters of consent. However, Article 10 of the Patient Autonomy Act expanded the power of attorney for medical agents. Originally, medical agents were only able to decide whether to choose hospice palliative care or life support treatment. This decision now includes receiving medical inform, signing letters of consent, and representing the patient in expressing his/her medical intent according to pre-established medical decisions. The Patient Autonomy Act is estimated to take effect three years following its announcement.
- Paragraph 2, Article 10 of the Patient Autonomy Act: Except for the heir to the decision maker, the following persons shall not act as medical agents for the decision maker:
- The legate of the decision maker
- The designated donee of the decision maker’s body or organs
- Persons who benefit from the decision maker’s death.
- Item 16.33 of the Second State Report on CEDAW is a conclusion reached during the 2012 Consensus Conference on Surrogacy. Item 16.35 of the Second State Report on CEDAW indicates that the government believes that different parties have not reached a consensus on the issue of surrogacy.
- Comparing domestic and international costs of artificial reproduction, a single procedure in Taiwan costs between NTD $10,000 and NTD $100,000 (costs vary depending on the difficulty of the technique), and a single procedure abroad costs between NTD $300,000 to NTD $1 million (not including travel expenses).
- Taiwan LGBT Family Rights Advocacy and Attorney Yen-Jong Lee filed a lawsuit against the court. Although social workers deemed the family capable of raising the child, the court of first instance overruled the same-sex couple’s adoption request because society has not reached a consensus on same-sex marriage, because the children of these families will become the subject of public opinion. The judge in the second instance court also stated that de facto marriages refer to the union of a man and a woman; thus, laws on stepchild adoption are not applicable to same-sex families.
- Taiwan is a signatory of CEDAW. The General Comments No. 24 of CEDAW requires States to eliminate discrimination against women in their access to health-care services throughout the life cycle, particularly in the areas of family planning, pregnancy, and confinement and during the post-natal period.
- According to internal documents of the coordination meeting held in Taipei City, the business in question stated that police officers used inappropriate language during the searches, such as “You say you’re a legal business? You know very well what you’re into,” “this place is so filthy, who knows what goes on in here,” “a search is a search, there doesn’t need to be a reason,” and “it looks like you’ve never seen a place go out of business because of police searches!” In this coordination meeting, which was held on January 26, 2016, the police department of this jurisdiction included dozens of photos of “condoms littered all over the floor,” which was used by the police to justify an increase in searches due to safety concerns caused by frequent gay sex in the business in question. For the meeting, meeting notice, official document numbers and internal meeting documents, please refer to the appendices. For the video of the interpellation, please see: https://www.youtube.com/watch?v=PkrM-03oeCM. The police department of the jurisdiction (Datong District Police Department) states that when conducting a search on February 7th, 2015, a small amount of illegal drugs was found on five gay customers, which is why the business in question was listed as a key location for police searches.
- The Persons with HIV/AIDS Rights Advocacy Association of Taiwan comprises numerous HIV/AIDS groups and gay groups, among which Taiwan Tongzhi Hotline Association is also a member. The HIV Infection Control and Patient Rights Protection Act has been renamed and undergone numerous amendments over the past 20 years. In recent years, the HIV Infection Control and Patient Rights Protection Act is more centered on education and the protection of rights. However, despite the protests of private groups that advocate for legal amendments, the Center of Disease Control refused to abolish this law during the latest amendment (2014) on the grounds of public health and disease prevention.
- Data was collected from courts of various levels up to March 21, 2016.
- Shu-Shou-Ji-Zi-Di No. 0960001319, Ministry of Health and Welfare, Executive Yuan (January 10, 2008): Unsafe sex refers to the direct contact of mucosal tissue or the exchange of bodily fluids without the use of protection during sexual behavior that is medically determined as possible of spreading HIV.
- In recent international discussions on HIV/AIDS infections, it has been determined that aside from unprotected sex, viral load is also a critical factor that affects the risk of infection. If a carrier takes regular medication, the viral load can be reduced to a minimum that is undetectable and thus not infectious. Under these circumstances, the occurrence of unprotected sex should not be used to determine the risk of contracting HIV/AIDS. For relevant discourse, please refer to data published by the WHO in 2012.
- Although a carrier performing oral sex on a non-carrier is deemed as low-risk behavior, the 2014 Criminal Court Judgment Su-Zi-Di No. 8 of Taiwan Chiayi District Court shows that the judge found the defendant guilty on the grounds of “direct contact with mucosal tissue or the exchange of bodily fluids without the use of protection during sexual behavior is medically determined as possible of spreading HIV.”
- International Guidelines on HIV/ AIDS and Human Rights, HR/PUB/06/9. The guidelines, a collection of resolutions reached by the United Nations Human Rights Council, were promulgated after being reviewed by the United Nations General Assembly. The guidelines were established based on all current international human rights mechanisms.
- Including the UNAIDS’s 2013 policy recommendations.
- Initial State Report on ICESCR and ICCPR
- The Ministry of the Interior’s Decision on the discrimination complaint filed by the TransAsia Sisters Association, Taiwan (TASAT) in 2011.
- Transcript of the public hearing held on the legislation of the Anti-Discrimination Act
- International Covenant on Civil and Political Rights
<li><p>The Review Committee is also concerned about the lack of statistical data on all cohabiting households and same-sex household. The Review Committee specifically recommends that steps to be taken to collect and collate data on all unregistered unions and provide the information in the next State Report.</p></li> </ol>
<li><p>The Experts recommend that Taiwan’s government amend the Civil Code to give legal recognition to the diversity of families in the country.</p></li> <li><p>The Experts remind the Taiwan Government that the protection of human rights of all should not be made contingent on public opinion.</p></li> </ol>
<li><p>The Ministry of Education strictly requires schools to report cases of sexual assault, yet completely disvalues the planning, research and development, content, promotion, and review of basic gender equality education. The Ministry of Education has also failed to define in detail the definition of sexual bullying, suggestions on how to process relevant cases, and approaches to counseling. As a result, schools’ gender equality education committees only pursue the minimum standard of preventing sexual harassment and sexual assault, and completely ignore other aspects of gender equality education.</p></li> </ol>