Becoming “Outsiders Within”: A Feminist Social-Legal Study of Surname Inequality as Sex, Race, and Marital Status Discrimination in Taiwan
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This article is a social-legal inquiry into the inequality of surnames in Taiwan and an endeavor to deliberate on its theoretical implications so as to fashion an account of East Asian feminist jurisprudence for surname inequality as sex, race, and marital status discrimination in Taiwan. Taiwan is a country where patronymic naming for children still prevails but patronymic naming for married women (prefixing husband’s surname) has become rare, and where marital name law and children’s name law have been reformulated in a gender-neutral fashion and in a contract model. Married women have become name keepers, but mothers remain outsiders within. Tracing the different trajectories of marital names and children’s names in life and law, this article discusses how and why surname equality remains a goal rather than a reality in Taiwan despite liberal legal reform that has abolished patronymic rules and the prohibition against using indigenous people’s traditional names, while also acknowledges the law’s power to change. It begins with an investigation into the development and practices of marital surname law, followed by a critique of children’s surname law by revealing the different faces of discrimination against different mothers as outsiders, and ends with a discussion of the limitations of liberal law reform and with a proposal for change. It will be revealed that women’s experience as well as feminist legal mobilization facilitated the change of law, and that women’s situation under law varies in accordance to their marital and ethnic status. It will be argued that the formal transition of name laws from status to contract creates a “republic of choices” which does not deliver equality, and “status-contract” as well as free choice continue to legitimatize name inequality. It will also be argued that equality demands a more radical change of name laws beyond the formal equality paradigm, and the reformulation of default and altering rules and the introduction of framing rules provide a possible way forward. The conclusion of this article touches on the implications of the legalization of same-sex marriage and same-sex parenthood as a future hope and challenge for name equality.
Abstract
This article is a social-legal inquiry into the inequality of surnames in Taiwan and an endeavor to deliberate on its theoretical implications so as to fashion an account of East Asian feminist jurisprudence for surname inequality as sex, race, and marital status discrimination in Taiwan. Taiwan is a country where patronymic naming for children still prevails but patronymic naming for married women (prefixing husband’s surname) has become rare, and where marital name law and children’s name law have been reformulated in a gender-neutral fashion and in a contract model. Married women have become name keepers, but mothers remain outsiders within. Tracing the different trajectories of marital names and children’s names in life and law, this article discusses how and why surname equality remains a goal rather than a reality in Taiwan despite liberal legal reform that has abolished patronymic rules and the prohibition against using indigenous people’s traditional names, while also acknowledges the law’s power to change. It begins with an investigation into the development and practices of marital surname law, followed by a critique of children’s surname law by revealing the different faces of discrimination against different mothers as outsiders, and ends with a discussion of the limitations of liberal law reform and with a proposal for change. It will be revealed that women’s experience as well as feminist legal mobilization facilitated the change of law, and that women’s situation under law varies in accordance to their marital and ethnic status. It will be argued that the formal transition of name laws from status to contract creates a “republic of choices” which does not deliver equality, and “status-contract” as well as free choice continue to legitimatize name inequality. It will also be argued that equality demands a more radical change of name laws beyond the formal equality paradigm, and the reformulation of default and altering rules and the introduction of framing rules provide a possible way forward. The conclusion of this article touches on the implications of the legalization of same-sex marriage and same-sex parenthood as a future hope and challenge for name equality.
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