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Rights of Multi-gender in Workplaces after Legalization of Same-Sex Marriage

I. Preface

On May 24, 2017, the Justice of the Judicial Yuan of R.O.C. proclaimed the interpretation of No. 748, affirming that the same-sex marriage is a protected fundamental human right stipulated by Article 22 of the Constitution.

On May 17, 2019 the bill “Act for Implementation of Judicial Yuan Interpretation No. 748”, hereafter referred to as Implementation No. 748, has been passed. From May 24, 2019, two people with the same sex can be married legally in Taiwan.
II. “Mutatis Mutandis under the law” or “Apply by Analogy” used as bridges
Paragraph 2 of Article 24 of Implementation No. 748 stipulates “Laws other than Civil Code concerning couples, spouses, engagements or matrimony, and regulations based on the relation of spouses or couples, shall apply mutatis mutandis under the law to the regulation as stated in Article 2 of Implementation No. 748. It contains significant regulations for the workplace, such as the “Labor Standards Act”, the “Act of Gender Equality in Employment”, the “Employment Service Act”, the “Labor Insurance Act”, “Regulations of Leave-Taking of Workers”, which shall apply mutatis mutandis under the law.

In other words, referring to the labor rights at the workplace, the regulations involving the identity of relationships, such as couples, spouses, engagements, and matrimony can be fully applied to the same-sex marriage employees.
III. Relevant regulations of labor rights and interests for different genders at the Workplace
1. Act of Gender Equality in Employment
(1). In regard to paternity leave, Paragraph 5 of Article 15 of the “Act of Gender Equality in Employment” stipulates that when an employee’s spouse is in labor, their employer shall grant them a five day paternity leave. The preceding regulation certainly adapts to the same-sex marriage families, usually for lesbians.

(2). Unpaid parental leave for raising children is stipulated by Article 16 of the “Act of Gender Equality in Employment”. According to Paragraph 1, after being employed with a company for six months, employees may request an unpaid parental leave before any of their children reach the age of three. The period of this leave is valid until their children reach the age of three, but it may not exceed two years. When an employee is raising two or more children at the same time, the period of their unpaid parental leave shall be calculated aggregately. The maximum time is based on a period of up to two years for raising the youngest child. According to Paragraph 2, during the period of unpaid parental leave, employees may continue taking part of their original social insurance program. Premiums originally paid by the employer shall be exempted and premiums originally paid by the employee can be deferred for three years.
According to Paragraph 3, based on the “Family Proceedings Act” and the “Protection of Children and Youths Welfare and Rights Act”, an employee having lived with adopted children prior to the adoption may request an unpaid parental leave for the period they have lived together in accordance with the first Paragraph.

Article 20 of Implementation No. 748 stipulates that in same-sex marriage, the “step-parent adoption” is allowed, which means one side can adopt the other side’s “biological child”.

     Based on the preceding regulations on the unpaid parental leave, either party in the same-sex marriage, who adopts the other party’s biological child and being in the trial adoption period by law, the new foster is eligible to request an unpaid parental leave under the circumstance that he or she has been employed with the company for at least 6 months, and that any of his or her children is less than 3 years old. Their employers can’t reject their requests.

Additionally, according to Paragraph 9 of Article 3 and Article 17 of the “Act of Gender Equality in Employment”, employers can’t reject the employee’s request of reinstatement and request for reinstatement to the “previous position”. Except in circumstances that don’t conform to Paragraph 1 of Article 17 of the “Act of Gender Equality in Employment”, an employer may not reject an employee’s requirements of reinstatement. An employer who illegally rejects his employee’s application for an unpaid parental leave or a reinstatement, the employer shall be penalized with a fine from NT$20,000 to NT$300,000 and the employer’s name shall be released to the public, according to Paragraph 1 of Article 38 of the “Act of Gender Equality in Employment”.

2. Labor Standards Act
In regards to compensation for death from an occupational related incident, according to article 59 of the “Labor Standards Act”, the heir order for receiving the compensation is described as follows: when an employee dies of an occupational injury or suffers from an occupational disease, in addition to the funeral subsidy equal to five months of the average wage, his or her employer shall pay a lump sum payment equal to forty months of the average wage for covering the compensation to the deceased family. The heir order of being eligible to receive the compensation is as follows: first for spouse and children; second for parents; third for grandparents; fourth for grandchildren; and fifth for brothers and sisters. The above-mentioned term “spouse” is now inclusive of a same-sex married couple. As for the traditional Taiwanese view of family, some people haven’t made the fact known to their families that they have married someone of the same-sex. In a case of an occurrence of compensation for a death, a conflict may arise between spouse and parents. Employers are supposed to make the proper arrangement and deal with the compensation by law.
3. Employment Service Act
Paragraph 1 of Article 5 of the “Employment Service Act” stipulates that for the purpose of ensuring citizens with equal opportunity in employment, an employer is prohibited from discriminating against any job applicant or employee on the basis of race, class, language, philosophy, religion, political party affiliation, place of origin, place of birth, gender, sexual orientation, age, marital status, appearance, facial features, disability, zodiac sign, blood type, or past membership of any labor union. If there are some other issues about employment described in other laws they shall be applied to those laws. “Employment Service Act” and “Act of Gender Equality in Employment” are both laws which specifically describe the regulation for the equality of sexual orientation to protect job applicants from discrimination of sexual orientation. Sub-paragraph 2 of paragraph 1 of article 48 of the “Employment Service Act” stipulates that prior to employing a foreigner, an employer shall submit relevant documents and apply to the central competent authority for employment permits. However, a foreigner, who married a Taiwanese citizen with a household registration in the R.O.C, is exempted from applying for the employment permit. However, the issue of application to laws on transnational marriages, marriage between a Taiwanese and a foreigner, was not considered when the Implementation No. 748 was legislated. This resulted in Taiwanese, who want to marry someone of the same sex, can only legally get married with a foreigner coming from a country where same-sex marriage is legal. If they are coming from a country where same-sex marriage is not recognized, a work permit from the central competent authorities is still needed.
4. Regulations for leave-taking of employees
(1). In regard to wedding leave, article 2 of the preceding regulation stipulates that an eight day wedding leave with pay is granted.

(2). In regard to funeral leave, article 3 of the preceding regulation stipulates that an eight day funeral leave with pay for the death of a parent, foster parent, step-parent, or spouse; a six day funeral leave with pay for the death of a grand-parent, child, spouse’s parent, spouse’s foster-parent or spouse’s step-parent; a three day funeral leave with pay for the death of a great-grandparent, brother or sister, or spouse’s grand-parent. Like in a heterosexual marriage, the same-sex marriage now has the "relatives by marriage relationship”. While, funeral leaves are not based on relatives by marriage relationships, an employer is supposed to permit the same sex couple’s request for the funeral leave when his or her spouse’s parent, foster parent, step-parent, or grandparent passes away.

The preceding shows that, in the workplace, the labor rights dealing with the identity relationships which are applied to husband and wife, spouse, engagement and matrimony can also be applied to the circumstances where the employee is of a same-sex marriage. In principle, employers are able to apply it. And employees’ freedom for their sexual orientation is protected by law.
IV. Employer’s continuation to maintain a persistent equality in the work environment for multi-genders
Since the end of the last century, our society has increasingly accepted and reaffirmed that women are of equal status with men in the workplace. There have been many types of discrimination in the past. For example, some female job applicants were required to sign in advance that if they became pregnant they had to resign from their position. This kind of situation seldom happens in the present. In the workplace, the environment that promotes gender equality has improved due to the implementation of regulations. However, the issues such as gender identity, gender traits, sexual orientation, etc. have not yet been appreciated by the society. The discrimination of a gender in the workplace seems to be changing and is becoming more multi-gender. Employers are supposed to comprehend the contents of relevant laws and regulations in the hopes of maintaining a friendly multi-gender workplace environment.

The above article is adopted from “Rights of Multi-gender in Workplaces after Legalization of Same-Sex Marriage” authored by lawyer Zhuang and lawyer Pan of Themis Attorneys-At-Law.