When Women’s Human Rights Encounter Tradition in Taiwan

Taiwan is generally considered to be a good example of how gender equality can be widely respected and implemented. But from time to time when women’s rights to equality encounter some deeply embedded traditions, there are still struggles in the society and in the constitutional process to fully implement the rights to gender equality. The 2015 case of J.Y. Interpretation No. 728 involves a typical gender equality issue, i.e., women continuously prevented from serving as members or successors of “ancestor worship guilds/associations” for traditional reasons. In this case, the protection of women’s human rights and the need to protect the long-established traditions and the freedom of contract should be properly balanced. This chapter argues that protection of the tradition of systemically discriminating against women’s ancestor-worship status and the rights and freedoms associated with such discrimination are of minimal constitutional value. Women’s right to equal protection should be prioritized because of the seriousness and the systemic and structural nature of such discrimination. The Constitutional Court should have declared the law unconstitutional. Although the Constitutional Court failed to declare the challenged law to be unconstitutional, the legislative body still has a chance to correct the discriminatory situation by requiring equal status for female offspring, at least for the successions that are to occur after the new legislation.