Marriage is not by any stretch of the imagination a barometer of progress for the majority of queer and trans people.
This article contains mentions of transphobia and transphobic violence
Last week, Taiwan became the first country in Asia to legalize gay marriage. Celebratory photographs of newly wed gay and lesbian Taiwanese couples proliferated across the internet beneath headlines that reaffirmed Taiwan’s position as the socially progressive vanguard nation behind which the “rest of Asia,” it is predicted, will soon follow suit.
In an uncanny repetition of a similar moment almost exactly four years ago, when the United States supreme court upheld the legalization of gay marriage, this moment in Taiwan was upheld as a giant leap forward for “LGBT rights”—and yet, nothing was stated or celebrated about the trans people purportedly represented under the “T.”
It is true that Taiwan has long taken a more socially progressive stance on matters of gender and sexuality compared to the rest of Asia. Discrimination on the basis of sexual orientation, gender identity and gender characteristics have been banned since 2004 in the realm of education, thought not necessarily in employment; and in 2016, Audrey Tang became the first trans women to occupy a position in the national cabinet.
And yet, the Taiwanese courts still require trans and intersex people to undergo sex reassignment surgery in order to change their legal gender on official documents. Although this law was challenged in 2014, it has not yet been overturned. There are many reasons why trans people might not want or have the material ability to access surgery; yet without it uncorrected documents make them vulnerable to a host of dangerous and discriminatory practices.
A similar law was upheld earlier this year in the Japanese supreme court, which ruled that transgender people must undergo sterilization before they can have their gender changed on legal documents. The court argued that the law is constitutional because it was meant to “reduce confusion in families and society,” even as Human Rights Watch said the ruling was “incompatible with international human rights standards.”
Elin McCready, an American professor who teaches at a Japanese university, has faced multiple barriers living in Japan as a trans woman. McCready’s spouse is Japanese and they have been married for over a decade; but after her transition, she became embroiled in a legal quagmire with the Japanese legal system, which states that transgender people can only change their gender markers if they meet certain conditions, including being unmarried, having no minor children, and having no reproductive capacity.
Because McCready was already married with children at the time of her transition, and because she and her wife are both women, the Japanese legal system had no precedent for her case. “Their options are to say ‘Okay, we allow your marriage’, in which case they have set a precedent for same-sex marriage, or to say ‘No, we don’t allow your marriage,’ in which case they have to unilaterally cancel our marriage without our consent,” McCready noted.
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Japan has not legalized gay marriage and the increasingly conservative prime minister and cabinet make it unlikely that it will be legalized anytime soon. Last year, leading LDP lawmaker Mio Sugita publicly commented that the government should not use tax money to support LGBT people because same-sex couples are not “biologically reproductive.” Earlier this year, another cabinet lawmaker, Katsuei Hirasawa, argued that Japan would “collapse” if everyone became LGBT.
In addition to legal discrimination, McCready has also faced social discriminatoin and stigma as a trans woman in Japan. Earlier this month, she was explicitly denied entry to Goldfinger, a famous lesbian bar and nightclub in Nichome, Tokyo’s gay district. The owner of the bar stated that, although McCready’s ID was officially marked as “female,” because she did not “look” like a woman, she would not be allowed in.
In an open letter to the owner of the bar, McCready noted the irony of being denied entry to a lesbian club as a trans woman who could potentially set a legal precedent for the legalization of gay marriage in Japan: “The governments of the world think of me as a woman: my documents say F, and that’s meant a battle with the Japanese government to save my marriage, which is now a same sex marriage according to the law. I’m fighting with the government, as a woman, to save my marriage with another woman. This fight is for you too and everyone else at Goldfinger. But I can’t come inside. Can you tell me why?”
She also noted that lack of representation and information around trans people in Japan generally had made her day to day existence a struggle. In our conversation she noted: “When someone outside this community looks at someone who is gender-ambiguous the thought that ‘they may be trans’ doesn’t seem to arise.”
Beyond Japan and Taiwan, conditions for trans and gender nonconforming people tend to be much worse than their gay and lesbian counterparts. In the Philippines, while there are no laws criminalizing homosexuality, there are no laws explicitly protecting gay and/or trans people either. And between 2008-2016, 41 trans people were murdered there, making it one of the highest rates of murder and violence against trans people in southeast Asia.
In Malaysia, sharia law makes it explicitly illegal for “a man to dress or act like a woman.” As a result, Nisha Ayub, a Malaysian trans woman wearing women’s clothing, was sentenced to three months in a men’s prison, where she was assaulted by a prison director along with other inmates.
In India last year, a bill was passed that purported to “protect” trans people under the law, but in fact subjected them to excessive control and surveillance. For trans people who wish to transition, the bill mandates “screening committees comprising district heads, psychologists, psychiatrists, and one trans person, to determine whether an applicant ‘qualifies’ as transgender.” It also provides legal recognition for transition only after mandatory sex reassignment surgery.
Additionally, the bill criminalizes begging, sex work, and other forms of livelihood that many trans people depend upon, while reducing the punishment for sexual violence against trans people to two years in prison (as opposed to seven years for violence against cis women).
While the legalization of gay marriage in Taiwan signals some hope for change with regard to protections for LGBT folks in Asia, it is important to remember that marriage is not by any stretch of the imagination a barometer of progress for the majority of queer and trans people there. It is also important to remember that the violence and hegemony of the gender binary is a modern, colonial import, and that the fight to protect the rights of trans people in Asia is also a part of the process of ongoing decolonization.
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