Gender Subordination in Taiwan: The Need for Accurate and Nuanced Analyses

Institutional sexism and gender subordination exist in Taiwan, and they are problems that need to be discussed and addressed. To effectively tackle the issue, having accurate analyses of the current situation is essential.

Jessie Tu’s ‘“I Felt Like I Was Drowning”: On Women’s Rights in Taiwan’ in the Los Angeles Review of Books is a recent piece that foregrounds the issues of gender discrimination and gender-based violence in Taiwan. Tu argues that, among others, legal and educational institutions in Taiwan maintain gender subordination and reify inequality. Unfortunately, the article’s errors and misleading statements detract from the important message that violence against women in Taiwan is a societal problem that must be dealt with on a fundamental level.

When discussing sexual assault trials in Taiwan, Tu claims:

Taiwanese courts are known to practice victim-blaming: it is not uncommon for judges to ask a victim, “Did you refuse him when he came onto you?” “Do you have any evidence that to prove you refused?” “If you weren’t willing, why have you always had a relationship with the defendant?”

While victim-blaming in sexual assault cases certainly exists in Taiwan, these questions do not support this assertion. Asking whether the survivor refused the advances is necessary to determine consent, an essential element of sexual assault. While being forced to answer this question may be traumatic due to the need to recount the incident, it is a fact that must be determined for there to be any chance of conviction. It is also unclear why asking for evidence of the refusal would be considered victim-blaming, as evidence (which includes testimony by anyone) is the backbone of trial practice. Without evidence, there would unlikely be a prosecution to begin with. 

As for asking the survivor why she maintained a relationship with the defendant despite the unwanted sexual advances, this question would be useful to elicit evidence on, for example, the power dynamics in the relationship or grooming. None of these questions in and of themselves are victim-blaming, but they could be evidence of the practice if the judge were to ask them in an accusatory tone, refuse to believe the victim’s answers, question why the refusal was not more unequivocal, or repeatedly badger her until she gave an answer with which the judge agreed. Specificity is important when discussing the law, and without more, these questions do not support the claim of victim-blaming.

As an example of a law created and maintained by patriarchy and the need to control women’s bodies, Tu cites the law governing abortions in Taiwan:

For instance, abortion: it is legal in Taiwan, but only under certain conditions. A woman may obtain an abortion only if the fetus is the result of rape or incest, or if carrying the fetus to term poses health risks to either the mother or child. Furthermore, if you’re married, a minor, or “mentally ill,” you must gain spousal, parental, or guardian authorization to obtain the procedure.

This paints an incomplete picture, as Genetic Health Law Article 9 provides for six circumstances under which a woman can seek an abortion. Most importantly, Article 9(6) is missing from the quoted paragraph. This provision states that abortion is legal if “[p]regnancy or childbirth is likely to affect her mental health or family life.” The term “family life” is purposefully ambiguous to capture any and all situations, and it is not the physician’s prerogative to second guess whether the pregnancy would affect “family life” as it is a subjective standard. The “family life” exception exists not only in black letter law but also in practice and allows for unhindered access to abortions for unmarried adult women with the requisite legal capacity to make decisions.

This leads to the consent issue. Consent by the spouse for married women is only required for the “mental health or family life” exception, also stipulated in Article 9, so if an unmarried adult woman of sound mind wishes to terminate her pregnancy because it is a result of rape or if carrying the fetus to term would endanger her health, she can make the decision without seeking consent or even providing notification. Unfortunately, minors and those without legal capacity must obtain parental and guardian consent respectively. The provision on consent by the guardian is only applicable in instances where the pregnant woman has been adjudicated by a court to lack the mental capacity for decision-making due to an intellectual disability pursuant to Civil Code Article 14. While court-appointed guardianships have problems of their own and are subject to abuse, it is misleading to imply that simply being mentally ill, which is categorically different from having an intellectual disability, would take away the right to abortion.

Tu asks, “Where are the rallying cries against such blatantly sexist, discriminatory laws?” From the perspective of achieving full reproductive freedom, the current abortion law should indeed be amended so women would have access to abortions without having to give any reasons at all. Yet, there are political considerations because opponents in the past have introduced measures that would have placed further restrictions, such as mandatory waiting periods and counselling, designed to take away the right to choose. There is the very real concern that raising the issue of amending the law in any way would provide the opportunity for opponents of abortion rights to curb it. The risk of actually creating further undue burdens on women in the quest for reproductive rights in the books when such rights essentially already exist in practice has been seen as one that is not worth taking. Undoubtedly, Tu’s question could also have been referring to other discriminatory laws she mentions in the article, such as criminal adultery. The discussion on the political considerations for not amending the abortion law here simply highlights the complexity of each situation and the nuances that must be considered when analyzing how to combat each problem. Just because advocates are not seen to be shouting on the streets does not mean things are not getting done.

Finally, Tu states:

In last November’s referendum, the country voted against implementing Proposition 15, which stated that the national education system should stress the importance of gender equality, and offer sex education.

This passage gives the impression that the current Taiwanese educational system does not offer sex education and that there are no legal provisions mandating gender equality in education. It also suggests that the proposal to fill these gaps were rejected. In reality, the Gender Equity Education Act and the Enforcement Rules for the Gender Equity Education Act, laws that exist due to decades of advocacy, already provide for both. Proposition 15 was drafted in response to a competing proposition sponsored by opponents who sought to eliminate “homosexual-related education” from the existing curriculum. Although this latter referendum item passed, it held no legal authority and the Ministry of Education publicly announced its decision to largely ignore the result. While the actual implementation of the laws and the substance and effectiveness of the sex education in the curriculum could certainly be criticized, these are entirely separate arguments left unraised.

Gender discrimination and gender-based violence are problems in Taiwanese society, and Tu’s broader arguments are correct, but the article offers a misleading picture that does not necessarily reflect the intricacies of the situation. This piece is not an indictment of Tu; rather, it is an invitation for all who care about gender discrimination and other forms of subordination in Taiwan to engage in dialogue to accurately assess the problem in order to better devise nuanced solutions that can effect fundamental change.

Bob Kao is a PhD Candidate at the Centre for Commercial Law Studies, Queen Mary University of London and a California lawyer. During law school he was a research assistant for the California Manual on Domestic Violence and an Article Editor and Symposium Editor of the Berkeley Journal of Gender, Law & Justice. His article “The Struggle for Marriage Equality and the Need to Focus on Transgender Rights in Taiwan” is forthcoming in the Cardozo International Comparative, Policy & Ethics Law Review.