By Chawinroj Terapachalaphon

A member of an Isaan LGBTQ+ network asked me to summarize the current situation of the law regarding LGBTQ+.  We met at a panel discussion eight years ago. What saddened us is that Thai laws protecting rights and equality, or opposing discrimination against LGBTQ+, haven’t gone anywhere. Thai LGBTQ+ still face discrimination, abuse, bullying, and insults. They continue to live without legal recognition, cannot be legally married, whether through the Civil Partnership Bill or the same-sex marriage law.

Civil Partnership Bill: rationed rights from the state

The Civil Partnership bill was firstly drafted in 2013 by the Rights and Liberties Protection Department of the Ministry of Justice. The principle is to allow same-sex couples to be registered as “civil partners,” which is different from “spouses” as per the Civil and Commercial Code. The bill reviewed and amended no less than six times before the latest draft was submitted to the cabinet in July this year. Still, it doesn’t guarantee the same legal rights granted to spouses.

The amendment of the bill therefore has been like: “No question, no response. No demand, no rewrite.” It also seems as if the state is rationing some rights to the LGBTQ+ community instead of giving them equal rights, based on the international principle of human rights that says every person is equal in the eyes of the law. A right to marry and establish a family is a basic right, and human dignity must be respected.

The inequality in the Civil Partnership Bill includes a provision that doesn’t allow a partner to receive the government employee’s welfare of his or her partner. Civil partners don’t have a right to surrogacy as per the Protection of a Child Born By Medically Assisted Reproductive Technology Act. Other rights of civil partners are granted on a case-by-case basis. For example, an ability to make a medical decision for a partner depends on a hospital’s discretion on whether or not to allow them the same right given to heterosexual spouses.

Civil partners do not receive the same legal rights as spouses, even at the moment of life and death. That decision is entirely up to the interpretation of the person in authority at that moment. #NoCivilPartnershipBill therefore was trending on Twitter when the drafted bill was proposed to the cabinet. The bill is now on hold, before it was proposed to be put on the parliament agenda.

Anchana Suvarnanon (second from left) in a Civil Partnership Bill sub-committee meeting at the parliament, 2013.

The equality that LGBTQ+ want

The draft amendment of Section 1448 and other related sections of the Civil and Commercial Code is an alternative toward achieving marriage equality, firstly proposed by the Anjaree Foundation and Anchana Suvarnanon. It was presented to the justice and human rights committee of the Yingluck Shinawatra’s government. Anchana proposed the amendment of Section 1448, modeling it after laws in other countries such as France and the UK. However, the committee rejected it, saying “it should be taken slowly,” “it’s difficult to proceed,” and “the Code cannot be touched.”

Eight years passed, and several LGBTQ+-related NGOs have agreed that the Civil Partnership Bill cannot be a wholesome solution to the problems faced by the LGBTQ+ community. Therefore, they’ve shown support to the idea of drafting the law to achieve true marriage equality. For example, “1448 for All” is advocating for the amendment of the Civil and Commercial Code, which the Foundation for SOGI Rights and Justice is petitioning the Ombudsman Office and the Constitutional Court about, to rule whether Section 1448 is unconstitutional.

For movement from political parties, Tanyawat Kamolwongwat, Tanwarin Sukkhapisit—recently disqualified—and other Move Forward Party MPs in June proposed the draft law for marriage equality to the Secretariat of the House of Representatives. The draft, published online for a public opinion survey, received over 1.2 million reads and over 60,000 comments on the parliament’s website. #MarriageEquality then became Thailand’s No.1 trend on Twitter.

The principle of marriage equality law is based on seeing everyone of every gender as “fellow human beings.” Therefore, it led to a proposal to amend the condition of marriage in Section 1448, allowing only a man and a woman to legally marry, to broaden the right to marry to “two individuals” regardless of their gender. That would grant everyone, every gender, the right to be legally married as spouses under the Civil and Commercial Code. They would receive the rights and dignity equal to heterosexual couples without compromising any of their existing rights. This draft is now on hold, prior to it being proposed for inclusion on the parliament agenda.

Tanwarin Sukkhapisit (left), then a Move Forward MP, and her fellow party MP Tunyawaj Kamolwongwat (right)

Why there’s no progress with the gender recognition law

The proposal of the Gender Recognition Act (formerly called the Personal Titles Act) was proposed in 2007 by Juree Vichit-Vadakan. It said a woman or a man who has gone through a sex transition surgery would be able to use a personal title for a gender they prefer. However, the draft was rejected and transformed into the 2008 Female Title Act. It was as if transgender people did not matter.

In 2017, the Department of Women’s Affairs and Family Development proposed the Gender Recognition Act but with the outdated principle attaching gender recognition to those who’d gone through sex transfer surgery. It overlooks the progress in other parts of the world. For example, Argentina grants transgenders the right to choose their own gender despite not having been through sex transfer surgery. Therefore, the majority of the LGBTQ+ community disapproves of this state-proposed act. Up until present day, there has been no other proposal of a gender recognition law.

All the problems with Gender Equality Act

Since Thailand enacted the 2015 Gender Equality Act, the LGBTQ+ community has still faced discrimination because of some problematic clauses in the act. For example, the clauses are vague and excuse discrimination for national security or religious reasons. The definition of discrimination also doesn’t cover all gender identities and sexual orientations. Moreover, those being discriminated against must petition to the gender discrimination committee in person. Some therefore opt not to do it, whether out of personal burdens or fear. There’s also a lack of a clear and concrete national policy to eliminate discrimination against the LGBTQ+ community from the gender equality support committee. They can only clean up the mess after it’s already happened.

These problems have led to a public movement to deconstruct the Gender Equality Act and a proposal of a new law called the “Anti-discrimination Act.” It’s being advocated by the Foundation For AIDS Rights in order to offer a concrete solution to the issue of discrimination for every group of citizens, including LGBTQ+, and not just some words on a paper they call law.

Prejudice and hatred toward the LGBTQ+ 

Comparing Thailand to a country in the same region like Taiwan, Taiwan is considered very progressive regarding the legal protection of LGBTQ+ rights. In 2019, Taiwanese LGBTQ+ were able to legally marry following the Act for Implementation of J.Y. Interpretation No.748.

This success came after a long haul of advocacy movements and the lasting democratic stability in Taiwan. However, the erratic situation of Thailand’s democracy, including the prejudice and hatred towards the LGBTQ+ community from lawmakers and some groups of people are a major obstacle to the progress of lawmaking to protect LGBTQ+ rights.

Section 27 of Thailand’s 2017 Constitution indicates that discrimination based on gender is forbidden. However the clause is still somewhat vague. I believe that should be amended for better clarification, for Thailand to have a national policy protecting the LGBTQ+.

I’d like to give an example from South Africa’s constitution that says, “Everyone is equal before the law and has the right to equal protection and benefit of the law. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including…gender, sex, sexual orientation…”

It’s doubtful that, during next year’s Universal Periodic Review, that Thailand must report to the United Nation due to the Voluntary Pledges and Commitments, or how the government would answer to the world questioning whether Thailand has equal rights for every gender, or if Thai LGBTQ+ actually exist in society or in the law. Is Thailand still a heaven for LGBTQ+ as is the impression of several people?

Chawinroj Terapachalaphon is a lawyer specializing on  LGBTQ+ issues who is also currently a Ph.D. student in Law at Sukothai Thammathirat Open University (Thailand).

Work Consulted

สิทธิความเสมอภาคในการสมรสของบุคคลที่มีความหลากหลายทางเพศในประเทศไทย ชวินโรจน์ ธีรพัชรพร และ ภาณุมาศ ขัดเงางาม 

ร่างพระราชบัญญัติ คู่ชีวิต  ฉบับร่างโดย กรมคุ้มครองสิทธิและเสรีภาพ   (ครม. รับหลักการ เดือนกรกฎาคม 2563)

ร่างพระราชบัญญัติ แก้ไขเพิ่มเติม ประมวลกฎหมายแพ่งและพาณิชย์   ฉบับร่างโดย พรรคก้าวไกล  (รับฟังความคิดเห็นเมื่อเดือนกรกฎาคม 2563)

กฎหมายรับรองเพศสภาพ อาร์เจนตินา.   

รัฐธรรมนูญ แอฟริกาใต้

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