Asia
LGBTQ rights gains in Asia come through courts, not legislatures
Marriage equality lawsuits filed in Japan
In recent years, some of Asia’s most significant legal developments involving LGBTQ rights have unfolded not in parliamentary chambers but in courtrooms. From marriage equality lawsuits in Japan to litigation over same-sex spousal benefits in South Korea and constitutional challenges in countries including India and Nepal, courts across the region have increasingly been asked to decide questions that lawmakers have yet to resolve. The trend raises a broader question: Why has constitutional litigation become a recurring pathway for LGBTQ people seeking legal recognition in parts of Asia?
The pattern has unfolded over nearly two decades.
In 2007, Nepal’s Supreme Court issued one of Asia’s earliest landmark rulings recognizing the rights of sexual and gender minorities, directing the government to end discriminatory laws and examine legal recognition for same-sex couples. A decade later, Taiwan’s Constitutional Court ruled that denying same-sex couples the right to marry violated the constitution, paving the way for the region’s first marriage equality law. In India, the Supreme Court recognized transgender people as a third gender in 2014 before striking down a colonial-era ban on consensual same-sex relations four years later.
The pattern continued across Asia.
Japan’s courts repeatedly questioned the exclusion of same-sex couples from marriage. The rulings intensified pressure for legal reform. Parliament, however, has yet to act.
South Korea’s judiciary expanded legal protections for same-sex couples. It recognized spousal health insurance benefits. A recent district court also awarded damages after a same-sex relationship ended. The ruling added momentum to the country’s marriage equality movement.
China’s courts took a different path.
Landmark constitutional rulings never emerged. Still, litigation prompted the Supreme People’s Court to acknowledge anti-LGBTQ discrimination. The developments reflected courts’ growing role in LGBTQ rights disputes.
The Philippines added another dimension.
Marriage equality remains unresolved, yet the Supreme Court recently recognized property rights for some same-sex couples. The ruling stopped short of recognizing marriage. Still, it acknowledged legal protections for LGBTQ relationships. The decision reflected another way courts have shaped LGBTQ rights across Asia.
Constitutional courts occupy a distinct place in democratic systems. Legislatures enact laws. They also respond to political priorities and public opinion. Constitutional courts serve a different function. They decide whether laws or government actions comply with constitutional guarantees. They resolve legal disputes brought before them. Their role is not to measure a policy’s popularity. It is to determine whether it is constitutionally valid. That distinction has placed constitutional courts at the center of many of Asia’s most consequential LGBTQ rights disputes.
Nepal offers an early example.
In 2007, LGBTQ activists turned to the Supreme Court through a public interest petition. They argued that discriminatory laws and government practices violated constitutional guarantees of equality. They also sought legal recognition for gender and sexual minorities. The government urged the court to dismiss the petition. It argued existing laws already protected all citizens. It also said the claims relied on assumptions rather than specific instances of discrimination. The court disagreed. It held that sexual orientation and gender identity are natural variations of human identity. It directed the government to eliminate discriminatory laws and policies. The ruling also ordered a study on legal recognition for same-sex couples, laying the foundation for future reforms.
“Since it is the absolute jurisdiction of the legislature to decide as to what type of law should be made and amended on a particular issue, and as this matter does not fall under the jurisdiction of this office, therefore, there does not seem any pertinent reason and valid ground to make this Office a respondent,” said Office of Prime Minister and Council of Ministers in its 2007 affidavit. “Let the writ petition be dismissed on the ground that the unconcerned office is being made as an opposite party in the case.”
In India, a prominent leader of the ruling Bharatiya Janata Party, Subramanian Swamy, described homosexuality as a “genetic disorder” in 2015. He also wrote on social media that it was a “genetic handicap,” reflecting the political discourse surrounding LGBTQ rights before the Supreme Court’s landmark ruling in 2018.
The Supreme Court’s landmark 2018 ruling decriminalized consensual same-sex relations. The decision did not end the debate. Soon afterward, the Rashtriya Swayamsevak Sangh, a right wing, Hindu nationalist volunteer and paramilitary organization, an ideological parent of the ruling Bharatiya Janata Party, said it did not consider same-sex relationships a crime. It added, however, that it did not support such relationships.
After the Supreme Court’s landmark 2018 ruling, Arun Kumar, a senior Rashtriya Swayamsevak Sangh leader, told the media that same-sex relationships and marriage were neither “natural” nor “desirable.”
During the 2023 marriage equality hearings, the Indian government repeatedly argued that the issue belonged before Parliament, not the judiciary. Solicitor General Tushar Mehta told the Constitution Bench that the case involved a “very complex subject” with “profound social impact” and that “all the questions in this case must be left to the Parliament.” He argued that recognizing same-sex marriage through judicial interpretation would require rewriting the Special Marriage Act and could have unintended consequences across multiple laws. During the hearings, Mehta also questioned how existing marriage laws would operate for same-sex couples, asking, “Who will be the wife in a lesbian relationship?”
The Washington Blade covered these arguments as the hearings unfolded.
Three years have passed since the Supreme Court declined to recognize same-sex marriage, holding that creating such a legal framework was a matter for Parliament. Marriage equality, however, remains unrecognized in India. Parliament has not enacted legislation extending civil marriage to same-sex couples. The legal position has remained unchanged since the court’s 2023 ruling.
Similar tensions have surfaced elsewhere in Asia.
In Japan, a growing number of courts have questioned the constitutionality of denying marriage to same-sex couples, even as Parliament has yet to amend the law. In South Korea, courts have steadily expanded legal protections for same-sex couples, while the government has argued that recognizing same-sex marriage is up to lawmakers. In the Philippines, marriage equality and civil partnership bills have repeatedly failed to secure congressional approval amid religious and political opposition. The legislative stalemate has prompted advocates to pursue constitutional litigation before the Supreme Court.
Indonesia presents a different picture.
Rather than debating legal recognition, much of the political discourse has focused on restricting LGBTQ rights. In a landmark 2017 case, however, rights groups successfully opposed a petition that sought to criminalize all consensual same-sex relations nationwide. The Constitutional Court rejected the petition, ruling that creating new criminal offences was a matter for Parliament, not the judiciary.
Netherlands
Thailand’s first openly gay senator attends World Pride in Amsterdam
Blade sat down with Pornchai Witayalerdpan on Aug. 7
Editor’s note: International News Editor Michael K. Lavers and Photo Editor Michael Key were on assignment in the Netherlands from July 28-Aug. 10.
AMSTERDAM — The first openly gay man elected to the Thai Senate says the law that extended marriage rights to same-sex couples in Thailand has positively impacted his country’s global image.
“It totally changed how the world perceived Thailand,” Sen. Pornchai Witayalerdpan told the Washington Blade on Aug. 7 during an interview at the World Pride Human Rights Conference in Amsterdam.
Thailand on Jan. 23, 2025, became the first country in Southeast Asia to allow same-sex couples to legally marry.
The marriage equality bill received final legislative approval in June 2024 when the Senate approved it by a 152-130 vote margin. King Maha Vajiralongkorn signed it a few months later. Then-Prime Minister Prime Minister Paetongtarn Shinawatra is among those who supported the law.
Witayalerdpan was a freelance interpreter before he took office in July 2024.
The independent senator noted Thailand’s marriage equality movement began to gain traction with a lawsuit that the Foundation for Sexual Orientation and Gender Identity Rights and Justice, a Thai advocacy group, filed.
The Constitutional Court in 2021 upheld a law that defined marriage as between a man and a woman. MP Tunyawaj Kamolwongwat of the Move Forward Party later introduced the marriage equality bill that became law.
“It was a coalition of efforts between the civil society organizations, the LGBTQ organizations, and also the Pride movement in Thailand,” Witayalerdpan told the Blade.
Taiwan in 2019 became the first country in Asia to extend marriage rights to same-sex couples.
The Nepalese Supreme Court in June issued a landmark ruling that ordered the country’s government to guarantee full marriage rights to same-sex couples.
The Japanese Supreme Court in March said it will consider six marriage equality lawsuits that have been filed in the country. The Indian Supreme Court in 2023 ruled against marriage rights for same-sex couples. South Korea is among the other Asian countries in which marriage equality efforts are gaining momentum.
Witayalerdpan said Thailand’s marriage equality law could have a direct impact in Japan, which is the only G7 country that does not legally recognize same-sex couples.
“It’s been nothing but a positive effect (in Thailand) after the same-sex marriage law (took effect),” he said.
InterPride, the organization that coordinates World Pride events, has announced Bangkok and Barcelona, Spain, are the two finalists to host the biennial event in 2030. (World Pride took place in D.C. in 2025.)
Witayalerdpan told the Blade that World Pride in Bangkok would further improve Thailand’s global image. He also said his fellow lawmakers, in turn, should pass LGBTQ rights bills — including proposals that would allow transgender people to legally change their name and gender and enable same-sex couples to have children via surrogates from in vitro fertilization. Witayalerdpan noted the most important bill to him is one that would strengthen Thailand’s LGBTQ-inclusive nondiscrimination law that took effect in 2015.
Impact of US funding cuts has ‘been very hard’
Witayalerdpan also offered advice to activists in the U.S. and elsewhere around the world.
“Keep on pushing forward,” he told the Blade. “I know that it’s hard for activists in Thailand as well.”
Witayalerdpan acknowledged the loss of U.S. government funding since the Trump-Vance administration took office — which has forced advocacy groups in Asia and elsewhere around the world to close — has “been very hard.” Witayalerdpan noted the global LGBTQ and intersex rights movement in response to these cuts has turned to the European Union, the U.K., Canada, and the Netherlands to help fill the gap.
“It’s very good that these countries are providing more funds to the activists in Asia than before because of the Trump situation,” he told the Blade. “It can increase their soft power as well.”
Witayalerdpan said American activists should “wish for a positive result in the mid-term elections.”
“Then there is some resistance,” he added.
Witayalerdpan specifically highlighted efforts to fight against the Trump-Vance administration’s efforts to restrict gender-affirming healthcare.
A federal court in Massachusetts on Aug. 15 struck down a key provision of a U.S. Department of Health and Human Service rule that would have limited access to gender-affirming care under the Affordable Care Act. Maryland and California are two of the 21 states that sued the Trump-Vance administration over the issue.
“You have to show more resistance … to show that we are still here and we will push back when we can,” said Witayalerdpan.
India’s Income Tax Department has opposed a same-sex couple’s petition that challenges Section 56(2)(x) of the Income Tax Act.
The provision exempts gifts between spouses from tax. The couple seeks the same benefit for their relationship.
At the center of the challenge is the explanation to the fifth provision of Section 56(2)(x). According to the petition, the provision excludes same-sex partners from the definition of “spouse.” The petition describes that exclusion as unconstitutional.
The provision defines “relative” to include an individual’s spouse, siblings, the spouse’s siblings, parents’ siblings, and other blood relatives.
Paiyo Ashiho and another petitioner, Vivek Divan, asked the Bombay High Court to recognize same-sex couples presumed to be in a marriage as “spouses” under the fifth provision to Section 56(2)(x).
A similar challenge is pending before the Karnataka High Court.
Bengaluru-based engineers Anurag Kalia and Akhilesh Godi have sought similar relief. Kalia said he wanted to give Godi a gold bracelet worth more than ₹115,500 ($1213.44.). The case remains pending.
The Prime Minister Narendra Modi-led government rejected the petition in an affidavit filed last year. It argued the plea was not legally tenable because it challenged no action or order of the Income Tax Department. Calling the petition an “abuse of process of law,” the government said the relief sought fell outside the scope of the Income Tax Act, 1961.
The government also argued the petitioners sought the benefits available to a “spouse” without legal recognition of their relationship. According to the affidavit, they had not placed on record any law recognizing their relationship as a marriage. It urged the court to dismiss the petition with costs.
The case returned to the spotlight on July 6, when the Bombay High Court heard the petition.
Justices B.P. Colabawalla and Firdosh P. Pooniwalla adjourned the matter after Solicitor General Tushar Mehta said he would appear on behalf of Modi’s government.
The petition comes nearly two years after the Indian Supreme Court’s marriage equality ruling.
In 2023, a five-judge Constitution Bench, in a 3-2 verdict, declined to recognize the constitutional validity of same-sex marriage in India. The country’s top court said MPs must decide whether to extend marriage rights to same-sex couples.
During the 2023 marriage equality hearings, lawyer Abhishek Manu Singhvi told the Supreme Court that marriage is a source of social validation, dignity, self-respect, fulfillment, and security. He argued that it also carries legal and civil benefits, including those related to taxation, inheritance, and adoption. Lawyer Anand Grover, who also appeared for the petitioners, told the court that marriage remains fundamental to the functioning of society and is necessary to access several state benefits, including joint tax benefits and surrogacy rights.
Chief Justice Dhananjaya Y. Chandrachud, in his minority opinion, said the Income Tax Act provides numerous tax benefits for payments made on behalf of a spouse, including deductions for life and health insurance premiums. He also noted that marriage confers several financial benefits on a spouse, including eligibility for gratuity, funeral expenses, medical benefits, and provident fund claims as the dependent of a deceased spouse.
In the marriage equality ruling, the Supreme Court recognized queer people cannot be discriminated against. The court said denying queer couples the material benefits and services available to heterosexual couples violates their fundamental rights.
While issuing directions to the federal, state, and territory governments; Chandrachud said the government should ensure there was no discrimination in access to goods and services. He also directed governments to sensitize the public about queer rights, establish a hotline for the queer community, create safe houses for queer couples, and ensure intersex children were not forced to undergo medical operations.
The petition is awaiting its next hearing before the Bombay High Court.
India’s tax system relies on both direct and indirect taxes, although its direct tax base remains relatively narrow. Individuals pay income tax at progressive rates of up to 30 percent, while consumers pay taxes on most goods and services through the Goods and Services Tax. The Income Tax Act also provides exemptions, deductions, and other tax benefits for eligible taxpayers, including those linked to family relationships and legal marital status.
India’s LGBTQ community is estimated to comprise between 135 million and 140 million people, or nearly 10 percent of the country’s population. Collectively, it is estimated to have a purchasing power exceeding $168 billion. The World Bank estimated that exclusion based on sexual orientation and gender identity cost India between $1.9 billion and $30.8 billion in lost economic output annually, or up to 1.7 percent of its gross domestic product.
India imposed a separate Gift Tax Act in 1958 to tax certain transfers of property made without consideration. Parliament repealed the law in 1998 to simplify the tax system and encourage genuine gifting. However, concerns over tax avoidance later prompted the government to bring gifts back within the Income Tax Act. Today, specified gifts exceeding prescribed limits may be taxed under Section 56(2)(x), subject to exemptions that include gifts received from relatives.
Under the Income Tax Act, gifts received from non-relatives exceeding ₹50,000 ($525.30) in a financial year are generally treated as taxable income, unless they qualify for a statutory exemption. Gifts received from specified relatives, including a spouse, are exempt from tax regardless of their value.
Tarun Khaitan — a research director and professor of public law at the London School of Economics Law School, honorary professorial fellow at Melbourne Law School, and associate fellow of the Bonavero Institute of Human Rights at the University of Oxford — told the Washington Blade the guarantee of equality and non-discrimination under India’s constitution was deliberately framed in broad terms because its framers envisaged that the understanding of those principles would evolve over time. They did not intend to freeze their meaning in 1950, he said. Instead, older and newer statutes alike must be interpreted in light of the constitution’s contemporary understanding.
“Constitutional values must inform the interpretation of all laws in India. It is well established in Indian jurisprudence that if a term can carry two meanings, the court will give it the meaning that complies with constitutional demands,” Khaitan said. “The term ‘spouse’ is not defined in the Income Tax Act, and unlike ‘husband’ or ‘wife’ is not a legal term of art in Indian family law. Its use by the Income Tax Act therefore is apt for judicial interpretation, which must be guided by the constitutional guarantees of equality and liberty.”
Asked how courts should balance respect for legislative choices with their constitutional responsibility to safeguard equality and dignity, Khaitan said he was not convinced that the legislature had made a clear choice in this case. He noted that the Income Tax Act uses the term “spouse” without defining it, adding that no other Indian law, to his knowledge, defines the term either. Its meaning has evolved over time, he said, pointing to the Oxford English Dictionary, which now defines a spouse as “a husband or wife, or a person joined to another in a comparable legally recognized union.”
Khaitan said the decision to restrict the meaning of “spouse” to different-sex married couples appeared to be the government’s interpretation rather than one expressly adopted by MPs. Even so, he said, courts have a duty to safeguard constitutional rights, although those rights are not absolute. The state, he said, must justify any restriction by demonstrating that it serves a sufficiently important public interest and that the limitation is proportionate to that objective.
“The extension of marriage would be a symbolic expression of equal acceptance of same-sex relations by law as well as a the extension of the bundle of material incidents that typically attach to it. Whether or not such extension happens, concerns such as inheritance, hospital visitation rights, decisions regarding end of life care, pensions etc affect the lives of same-sex couples as well as unmarried different-sex couples in a real, material sense,” Khaitan said. “There is no conceptual reason why the expressive salience of ‘marriage’ and the material incidents of a domestic partnership cannot be unbundled.”
Khaitan has had his scholarship cited by the Supreme Court in several constitutional cases, including Navtej Singh Johar v. Union of India, which decriminalized consensual same-sex relations, and Lt. Col. Nitisha v. Union of India, a landmark judgment on indirect discrimination.
Taiwan
Taiwan’s government has failed to update process to change gender markers on ID documents
Interior Ministry’s 2008 directive remains in place
More than four years after Taiwan began formally studying legislation to overhaul its legal gender recognition system, and despite repeated recommendations from international human rights experts, the government has yet to introduce a bill that would replace decades-old administrative rules governing how transgender people can change the gender marker on official documents.
On May 15, an independent international review committee examining Taiwan’s implementation of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights urged the government to enact legislation governing legal gender recognition. The committee said Taiwan’s continued reliance on an administrative order, despite a 2023 Supreme Administrative Court ruling that mandatory gender-affirming surgery violates constitutional rights, has created legal uncertainty for transgender people, administrative authorities and judges.
In Taiwan, legal gender recognition has long been governed by a 2008 Interior Ministry administrative directive rather than legislation.
Under the directive, applicants seeking to change the gender marker on their national identification documents are generally required to provide diagnoses of gender dysphoria from two psychiatrists and proof that they have undergone gender-affirming surgery. For trans men, this typically involves the removal of the breasts, uterus, and ovaries, while trans women generally must undergo the removal of the penis and testicles. Because these requirements are established through an administrative directive rather than a law enacted by the legislature, trans rights activists and human rights organizations have argued they violate human rights.
Although Taiwanese courts have increasingly allowed trans people to change the gender marker on their official documents without undergoing gender-affirming surgery, the Interior Ministry’s 2008 directive requiring surgery remains in force. As a result, Taiwan’s administrative rules and judicial decisions are no longer fully aligned.
In a landmark ruling in May 2024, the Taipei High Administrative Court ordered a household registration office to approve a trans man’s application to change the gender marker on his household registration without requiring gender-affirming surgery. The court held that the Interior Ministry’s 2008 administrative directive, which requires applicants to submit proof of surgery, cannot be treated as an absolute prerequisite for legal gender recognition. Instead, it found that the applicant had provided sufficient medical evidence of a stable and long-standing gender identity and that denying the application solely because he had not undergone surgery was unlawful.
The Executive Yuan began work on legislation in April 2020, when it decided to commission an academic study examining international legal gender recognition systems rather than immediately drafting a law.
The government subsequently commissioned Shih Hsin University to prepare a report reviewing foreign legal models and developing legislative recommendations, including a bill. Since 2022, the Executive Yuan has held a series of inter-agency meetings involving multiple ministries to consider the study’s recommendations and legislation governing legal gender recognition, though no bill has yet been enacted.
In September 2023, Taiwan’s Supreme Administrative Court set aside a lower court ruling that had upheld the Interior Ministry’s refusal to change a trans person’s legal gender without proof of surgery and ordered the case to be reheard.
The court held that the ministry’s 2008 administrative directive requiring surgery could not be treated as the controlling legal standard because it lacked a clear statutory basis and implicated constitutional protections, including bodily autonomy and personality rights. Rather than treating surgery as an automatic prerequisite, the court instructed the lower court to determine whether the applicant had established a stable gender identity based on the evidence presented.
“From our perspective, the primary goal should be lowering the barriers to legal gender recognition, particularly by abolishing the mandatory surgery requirement,” the Taiwan Tongzhi (LGBTQ+) Hotline Association, a nonprofit LGBTQ advocacy and support organization founded in 1998, said in an email to the Washington Blade.
The Taiwan Tongzhi (LGBTQ+) Hotline Association said several factors have stalled progress toward comprehensive legislation.
The organization told the Blade the complexity of the issue and the lack of constructive dialogue are among the primary obstacles. It said legal gender recognition requires extensive discussion, with views differing even within the trans community itself. The Taiwan Tongzhi (LGBTQ+) Hotline Association added that opinions also vary widely within the legislature and across Taiwanese society, while effective channels for dialogue remain lacking.
The Taiwan Tongzhi (LGBTQ+) Hotline Association also attributed the lack of progress to what it described as a lack of political will and an over reliance on “social consensus.”
According to the organization, the executive branch lacks the political momentum to advance legal gender recognition reforms. The Taiwan Tongzhi (LGBTQ+) Hotline Association said the Interior Ministry and other relevant agencies have often adopted a passive approach in the face of opposition from conservative groups, delaying progress by arguing that there is no social consensus or that further discussion is needed.
The Taiwan Tongzhi (LGBTQ+) Hotline Association also said progress has been hindered by what it described as a backlash following the legalization of same-sex marriage. According to the organization, groups opposed to gender equality and trans rights, including some conservative religious and anti-trans organizations, shifted their focus to trans issues after marriage equality became law. The Taiwan Tongzhi (LGBTQ+) Hotline Association said these groups have promoted fear-based narratives, including concerns about safety in public restrooms, leading many politicians to view trans rights as a politically risky issue and reducing momentum for legislative action.
“The existing system makes changing one’s legal gender marker extremely difficult. Forced surgical removal of reproductive organs imposes a heavy financial burden since it must be paid out-of-pocket, and not every trans person can afford, desires, or is medically advised to undergo organ removal,” the Taiwan Tongzhi (LGBTQ+) Hotline Association said. “Additionally, requiring psychiatric evaluations is problematic because specialized medical resources are scarce and concentrated in major cities. These obstacles severely impact transgender individuals in their daily lives.”
The Taiwan Tongzhi (LGBTQ+) Hotline Association said the continued reliance on an administrative directive rather than legislation has created systemic uncertainty for trans people. The organization said the absence of a statutory framework allows executive agencies to alter requirements without legislative oversight, leaving trans people uncertain whether future policies will become more restrictive or more permissive. The Taiwan Tongzhi (LGBTQ+) Hotline Association added that while several trans people have secured favorable court rulings since 2023, those decisions apply only to the individual cases before the courts and do not guarantee similar outcomes for others. The group also said pursuing litigation requires significant time, financial resources, and emotional investment, making it an inaccessible path for many trans people seeking legal recognition.
The Executive Yuan and the Interior Ministry did not respond to the Blade’s requests for comment.
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