Gay Rights in Thailand

Gay Rights in Thailand

gay rights in thailand

The history of Gay Rights in Thailand is explained. It appears this week the second week of June 2022 that gay marriage in Thailand is on the horizon. One would think that Thailand would have been before Taiwan when it comes to same-sex marriages and the LGBTQ+ community. This is mainly because same-sex partnerships are not uncommon in Thailand. Ladyboys, as transvestites are called in Thailand as well as the broader lesbian, gay and bisexual community.

 

Have long lobbied the Thai government to enact laws that will allow them to have the same rights as straight couples. We have covered this topic before on here. It is an important issue as it has been estimated that up to 10% of Thailand’s broader community is considered to fall under the LGBT+ banner. (Thethaiger, April 2022).

The current issues

For those who have visited Thailand or lived here. You will know that Thai society has long been accepting of the LGBTQ+ community. The older Thai members of society, as well as religious organizations and members of parliament, have however not allowed meaningful change to occur. This is mainly as Thai society is still very conservative. Sexual liberation is a bit of an illusion as it would appear that it ends at the Soi’s and does not go any further.

Currently, same-sex couples do not enjoy the same rights as heterosexual couples. This has been a bone of contention when it comes to issues such as death or retirement where one partner dies and cannot access the same rights as a heterosexual couple as they are not legally married.  

The long road

The LGBT rights organization in Thailand called Anjaree from its inception in 1986 has long campaigned for LGBT rights in the country. The organization was started by a small group of lesbian feminist activists led by Anjana Suvarnananda and Chanthalak Raksayu. They covered mainly lesbian issues in the women’s movement in Thailand. This becomes very important later as you will see, as the issues of LGBT and women’s rights become intertwined. With the launch of the first Asian Lesbian Network in 1990, they gained international attention.

First Challenge

The first challenge for them was the Thai Ministry of Health and getting them to remove homosexuality from the government’s list as a mental illness. In June 1995 they invited Bianca Murphy a professor of psychology from Wheaton College. She was also the chair at the time of the American Psychological Association’s Committee on Women in Psychology and was invited to give a talk at Thammasat University. This is a very prominent Thai university. The discussions were covered by the mainstream newspapers in Thailand. They also allowed the opinions of a Thai anti-gay psychologist to balance the view.

First Victory

Their first victory came in December 1996 when they stopped the Rajabhat Institute’s discriminatory rules on banning “homosexual” and “sexually deviant” students from enrollment at their Bangkok campus. The institute is a government-run teacher training college. The broad term for sexually deviant is called (biang-ben thang-phet) in Thai. This refers to kathoeys (Pronounced: cat-toys) or what would otherwise be called Ladyboys (male to female transgender students). The Ministry of Education rescinded the order under pressure.

Second Victory         

Their second and biggest victory was with the Rainbow Sky Association in Thailand. This was when they lobbied the government and politicians that the laws relating to mental illness needs to be updated. With widespread media coverage after the Thammasat University discussion. Just 7 years later homosexuality was removed from Thai law in 2002 from its list of mental illnesses.

 Language Change

With the change within Thai society the language to describe the LGBT community also changed. The mainstream newspaper no longer used the words “homosexual” or (rak rom phet) much like above the words “sexual deviant” or (bung-ben thung-phet) was also not used. The words same-sex love or (rak phet diao-kan) were now being used. One could say that with change, the words change to describe their new position within society. The words have softened more over time to remove the sexual nature of sexuality. Where today it is common to hear the words “tom and “dee” in Bangkok. Same-sex relations started to be defined not as sexual acts but as emotional acts. From 1996 and for the next 10 years there was a massive shift in how same-sex couples were viewed. Today the Rainbow Sky Association in Thailand is the largest LGBT organization in the country.

Recognition from an unexpected source

If one views the progression of LGBT rights in Thailand then you would never think this far off the beaten track. Politics in Thailand has always been volatile and Thaksin Shinawatra was the first prime minister in Thai history to serve a full term. Thailand had a bloodless coup d’etat in September 2006 where he was ousted.  

The Thai military established the Constitutional Drafting Assembly to change the Thai Constitution of 1997. All groups had been given a platform including the LGBT community. The following year in December 2007 an election was held. There was a new commissioner of the National Human Rights Commission, Naiyana Suphapung. She was a Thai lawyer and also worked for an NGO called the Friends of Women Foundation. Why was she as important as the commissioner in 2007 you might ask?

We have to go back to 2001 again as she held seminars at Mahidol and Thammasat universities on violence against homosexual women in November of 2001. Much like the other NGOs at that time, she was given extensive press coverage. She stated to the Bangkok Post that sexual orientation is a human rights issue. She pointed out that Article 30 of the Thai Constitution of 1997 gave equal rights to all irrespective of sex, race, age, religion, or physical ability. In 2007 the NHRC held an anniversary celebration for the Rainbow Sky at their offices.

The Human Rights Commission had certain issues that it wanted to be corrected. Insurance for gay people as well as compulsory blood tests for gay people. There was also the issue of the Thai military and their treatment of gays who got drafted.

Military Draft Changes

Just before the bloodless coup d’etat in September 2006 the Thai military also changed their wording when rejecting a draftee. Being a homosexual was not a base to be excluded from the draft. Being a ladyboy or kathoey, however, will get you excluded or expelled. Their service documents would read that they have been excluded from the draft as they suffer from a “mental illness” or “mental disorder”. The exemption wording was changed. In April 2006 a few months before the ousting of the prime minister. The wording from the military stated that they respect the human dignity of transvestites and the only people who are excluded are those who have had sex-change operations or had breast enlargements. The military would not want them to expose their bare breasts in public. Those who look or act like women are not excluded from the draft. There had still been some dispute about changing the wording for those who had been excluded before the changing of the wording in 2006.

Rape Law Changes

The interim military government made an important change during its tenure in 2007. The rape laws in Thailand had finally been changed. The interim military government recognized rape in marriage for the first time. This was now outlawed but it went even further by extending this to include male and transgender people. Anjana Suvarnananda and Natee Teerarojjanapongs were again a pivot in this massive change.

The Novotel Hotel case

In 2007 the nightclub in the Novotel Hotel would not allow Suthirat a ladyboy into the nightclub. She laid a complaint with the NHRC complaining about discrimination. Novotel played down the incident stating that it was hotel policy. Bangkok Rainbow then launched a media campaign calling for a boycott. They got front-page coverage in The Nation newspaper for two days with the slogan “no Entry” and “Novotel/No Homo”. One week later Novotel apologized to Suthirat and the boycott was called off.

The short leadership under General Surayud was marked by many as showing respect for human rights and promoting democracy. Under his leadership, Thailand also signed the UN convention against torture as well as the UN convention on people with disabilities. This brief period of military rule in Thailand marked many drastic but positive changes in the country.

The Constitutional Drafting Assembly

The Thai Constitution debate on the changing to Article 30 or Section 30 was the next battleground.

Section 30. All persons are equal before the law and shall enjoy equal protection under the law. 

Men and women shall enjoy equal rights. 

Unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education, or political view is not inconsistent with the provisions of the Constitution, shall not be permitted.

Measures determined by the State in order to eliminate an obstacle to or to promote a person’s ability to exercise rights and liberties on the same basis as other persons shall not be deemed as unjust discrimination under paragraph three.

The debate was the changing of Section 30 and the “sexual diversities” amendment. There was much argument as to what “sexual diversities” means and how it would be interpreted. It’s not a precise word. Others thought that gay rights would simply weaken Thai society. Safe to say that the amendment was defeated 54 votes to 23. The issue was opened again but this time instead of using the expression “sexual diversities” they used “sexual identity”. This was at the same time as the Novotel incident mentioned above. The revised language was now approved. The issue however came back to the floor. One member raised the issue that the meaning of the wording was the same. That “sexual identity” is the same as “diverse sexualities” and that they could not vote on it again. There was a push for a final vote. Some argued that it was a procedural issue however there had been many issues that day. The amendment was defeated 29 votes to 29.

Religion walks it back

Many times we overlook the religious aspects of what happened that day. Yes, those who had been pro-amendment were reminded as to what was wrong, being the Novotel incident was playing out in the media. This was on the first voting. What happened after the amendment vote was that the Buddhist monks wanted a vote that Buddhism must not be promoted by the state as in the Constitution but that Buddhism must be Thailand’s national religion. When they did not get it passed they threw over their alms bowls in protest. When the amendment for changing Section 30 again came up after this. Some voted against it as they did not want to be seen as being pro-homosexual and anti-Buddhist. Some would argue that it was just pure bad luck how the day transpired from a win to a loss. It did however show that change will ultimately come.

The Context in the Constitution

The Constitutional Drafting Assembly released a document on the issue. This was called the “Intentions on the Constitution of the Kingdom of Thailand”. Again it is Section 30 however paragraph 3 is explained in detail:

Measures determined by the State in order to eliminate an obstacle to or to promote a person’s ability to exercise rights and liberties on the same basis as other persons shall not be deemed as unjust discrimination under paragraph three.

The word “phet” in Thai becomes important as it is a broad word that could mean the following

– Gender as in “เพศ” – “phet” – Sex

– Sex as in “เพศ” – “phet” – Sex 

– Sexuality would also be described as this but as “เรื่อง เพศ” – Rhong Phet “Subject Sex”

The context in this regard changes as it is meant to be much broader. (See: Recognition from an unexpected source) above where National Human Rights Commission, Naiyana Suphapung provided this interpretation in 2001 already. Now the interpretation has simply been officially acknowledged by the Constitutional Drafting Assembly. Should this be a surprise then? The answer is not really as Thailand had already signed the International Convention on Civil and Political Rights. The argument was that discrimination on the bases of “sexual orientation” is discrimination based on “sex”.

More power to Women and Kathoeys?

The year 2007 the interim military government made additional changes. There should now be an option to allow women to change their titles. They can now be Miss or Mrs. as well as keep their maiden surnames. Kathoeys wanted the same. Naiyana Suphapung advised that it is best to go step-by-step in this process. The suggestion would have been to start with those who are post-op Kathoeys. Having breast implants would not suffice for such a lobby. How would this be implemented for someone born female their gender is already on all the official documents. For post-op Kathoeys to do this would mean that every document would need to be changed right back to the birth certificate. What would be the impact on society as there might be deception when it comes to straight men.

A formal parliamentary committee was set up and its work had to be completed before the end of the military government. They went for the right of all to have this option and not just those who had surgery. It was estimated that there were at least 1,000 Kathoeys in Pattaya alone and that only about 10% are post-op Kathoeys. When the draft bill was forwarded some objected to Kathoeys having been added to the draft bill. The Bill was passed in 2009 and Thai women can now retain their maiden surname as well as their title as Miss. The change in titles for Kathoeys was left out of the final law.

The reason given was that it would need to be given more consideration as it affects many Acts in Thailand. The main one being the Civil Registration Act when registering a marriage. 

The Battle Continues

The year 2011 saw more changes within Thai society. Many mainstream newspapers carried the front-page story of the first transgender flight attendants with the newly established airline called PC Air. Yvonne Bohwongprasert of the Bangkok Post in March 2012 wrote in her op-ed that “

Homophobia is unfortunately far from new in this predominantly Buddhist nation. Despite the Buddha’s core teachings of compassion, most people opt to treat such individuals with disdain, often making homosexuals and transgenders objects of ridicule in movies, television commercials, and daily conversation. They are often labeled as being promiscuous, self-indulgent, and deserving of little respect.

It is my understanding that Thailand’s apparently discreet “tolerance” for gays and transsexuals is in fact the result of our non-confrontational culture. The ones that have managed to break the stereotype and pursued their dreams to become teachers and air hostesses should be taken as examples to follow.

No longer can we afford to brush the issue of homophobia under the carpet, especially if the probability of having one of your children fall into the category of LGBT becomes a reality.

The question here remains is, has Thailand lagged behind others from a position of leading? In 1975, Thailand had its first sexual reassignment surgery operation completed. This was 28 years before the US remove all its sodomy laws in 2003. Thailand’s progressive civil rights attitude also allowed Thai women to vote in 1932 which was a full 12 years before France. Moving first with change, however, has never guaranteed that it will be integrated into society. Even with the mai pen rai attitude, Thailand has not been good at implementing the change or capitalizing on progress made.

The Civil Partnerships for Same-Sex couples Bill

We saw another round of public hearings in February 2013 from the Rights and Liberties Protection Department. This is with the parliamentary committee on Legal Affairs, Justice, and Human Rights. The first round of public hearings started in Bangkok. The new bill being proposed was the civil partnerships for same-sex couples. This bill would be the law that will protect same-sex couples as “civil partners”.

This would not change the law as it stands but add another category as “civil partnerships”. This will allow same-sex couple to share their assets and property. There is also the right to represent their partners in criminal cases. This will also come with tax, healthcare as well as insurance benefits. Debates started in 2013 after the public hearings. This was later submitted to parliament for debate. In 2013 there were no “civil partnerships” for same-sex couples in Asia.

The Religious Aspects Return

We recall 2006/7 as explained in the heading (See: Religion walks it back) and what transpired the day when activists wanted the Constitution changed. During this time in May 2013, the Bangkok Post ran an article called “Young monks struggle with gender issues.” And gave insight into the place religion plays in Thailand. The story is about a boy called Deer who as a child did not identify as a boy. When he was young and the only male child. His father forced him to join the monkhood where he spent 6 years of his life before leaving at the age of 18. Religion and transgendered issues in Thailand are very complex.

Theravada Buddhism, which is practiced in Thailand, under its basic tenets does not recognize transgenderism and is based on a very patriarchal system. There are only males and females in the religion. Buddhism in Thailand was created only for heterosexual people. Now looking at what happened in 2006/7 with the about-turn after monks overturned their alms bowls in protest to their request for having Buddhism as a state religion being denied. This now might give the religious aspect better insight for those outside of Thailand reading this.

A Kathoey cannot become a monk, however, you can change and not be a Kathoey and then become a monk. This is what happened with Sorrawee “Jazz” Nattee, who was crowned Miss Tiffany Universe 2009 and walked away from the entertainment industry and became a Buddhist monk. Now you might be wondering where this fits into the story? Let me take you back to 2007 when there was a lobby to allow a Kathoey to change from a Mr. to a Miss when Thai women were allowed to use their maiden surnames and titles. Recall the issue as to which Kathoeys should be allowed to be registered as female (See: More power to Women and Kathoeys?). Well, the problem was that Ms. Sorrawee had to have her breast implants removed to meet the criteria for life as a monk. Had the law been allowed in 2007 to change the titles of transgenders. Then Ms. Sorrawee would have been registered as a male at birth, re-registered as a woman in 2007, and then in 2013 re-registered as a male again. This with all the government documents from ID cards to birth certificates and everything in-between.

Let’s look at the sage advice given by Naiyana Suphapung who advised that it is best to go step-by-step in this process (changing the legal status of Kathoeys). The suggestion was to start with those who are post-op Kathoeys. Having breast implants would not suffice for such a lobby. She was correct in her thinking.

Acceptance in Society

In July 2013 the Foreign Correspondents’ Club of Thailand discussed same-sex civil unions. The Civil Partnerships for same-Sex couples Bill was about to be debated in parliament. There was a government survey that found at the time that nearly 60% of Thais are not in favor of gay marriage. At the meeting was Anjana Suvarnananda co-founder of Anjaree Group as well as Danai Linjongrat, executive director of the Rainbow Sky Association as panel members.

The main concern was that there had to be changes to Section 1448 which currently defines marriage as between a man and a woman. This to be changed to marriage being between two persons. With regards to property laws changing husband and wife to that of marriage spouse.

Later that year in December 2013 Thailand also saw talk of LGBT entering politics as the Sexual Orientation, Gender Identity, and Expression Rights Party, or the SOGIE Rights Party. There was however not enough time to register the party. The party was to look at LGBT issues as well as other issues from the broader community.

Slow Change

The draft of the new Thai Constitution in 2014/2015 brought a new issue to light. As you would have seen by now the issue of “sex” as discussed above was already well defined as being protected by the Constitution in 2007 in paragraph 4 of Section 30. The word “gender” however appeared in the new draft. Some have been suspicious about this change but the National Human Rights Commission of Thailand (NHRC) congratulated the Constitution Drafting Committee for the gesture.

World Health Organization (WHO) describes “sex” as biological and physiological characteristics that would define men and women. However, the term “gender” is more open to interpretation. Again we saw how the CDA (Constitutional Drafting Assembly) came to the same conclusion regarding the Thai language in 2007. When asked Kamnoon Sittisamarn, spokesperson for the Constitution Drafting Committee, stated that the term encompasses “sexuality”. As you will recall from the older Constitution (see above) where it stated:

– Sexuality would also be described as this but as “เรื่อง เพศ” – Rhong Phet “Subject Sex”

This new wording was more specific and much better than the term “gender”. Nobody wanted to add more confusion to the word as the battle was already fought in this regard. These were the January 2015 issues on the then-recent draft of the new Thai Constitution and the continuing debate on biology versus identity.

Time rolls on but issues remain

Now we all recall the Novotel incident from a few years back. Well, 2015 started with a bang with a repeat of a transgender person being denied entry to another pub. Nijshanaaj Sudlarphaar an international model filed a complaint with the Human Rights Commission when she was denied entry to the popular club at the upmarket Onyx club at RCA on Rama 9 Road. When IDs got checked her three friends were allowed to enter however she was denied.

The security told her that she was “sao praphet song” which means young kathoey. She felt humiliated but it took an interesting turn that one would not expect. Ronnapoom Samakkhi-arom, a Thammasat University lecturer and president of the Thai Transgender Alliance stepped in. He noted that denying her entry was a violation of Consumer Rights protected under Section 4 of the interim charter. He noted further that many clubs had signs outside their venues that “prohibited items” are dogs, durian, and kathoeys. He also noted that the Thai Gender Equality Act would make this behavior illegal. Writing this in 2022 leaves one to wonder if they thought that we would still be discussing the coming of the Thai Gender Equality Act so many years later.

We return to accepting the old argument

There was not much movement in 2016 in Thailand when it came to gay rights in the country. The Department of Women’s Affairs and Family Development at the Ministry of Social Development and Human Security had during 2016 partnered with the Faculty of Law at Thammasat University. The idea was to present their study on gender recognition and Thai law. They compared the gender laws in different countries and what the draft laws for Thailand would look like.

Gender recognition laws were the first on the agenda while using the UK and the Gender Recognition Act of 2004. This Act allows transgender people to legally change their gender. The idea was not to copy the laws but to see how they could be integrated into the context of Thai society. The word ‘context’ is very loaded as Thai society is far more conservative than British society.

As confusing as what it became was their study which said that 70% of Thai society in a questionnaire felt that people have a right to call themselves what they wanted. There would have to be conditions for this such as mental evaluation as well as a full-body transition. The questionnaire was most likely not properly explained. Most people would not object to what you call yourself but legally was not the question. Will this then recognize all and eliminated discrimination – clearly not. We are back at the 2007 question again – should it only be post-op transgenders and not just those who have breast implants (See: The Religious Aspects Return) as well as (See: More power to Women and Kathoeys?). The very same issues return.

Jetsada Taesombat of the Thai Transgender Alliance said that the law is not going to correct all discrimination. Still, it’s a necessary foundation in order to build up everything else.

Now you will recall that it was already explained 9 years before as good legal advice. In 2007 it was explained that it’s best to get your foot in the door first. Then open the door for the broader community. That advice was not taken, yet 9 years later the same argument is on the table again and only now accepted as a necessary foundation to build on. Recall the following advice nine years earlier?

Naiyana Suphapung who advised that it is best to go step-by-step in this process (changing the legal status of Kathoeys). The suggestion was to start with those who are post-op Kathoeys. Having breast implants would not suffice for such a lobby.

Make the tent bigger

The first Thailand LGBT Expo was held in 2018 at Impact Muang Thong Thani. There were many expo fashion items, accessories, health and beauty services as well as travel packages on offer. We started to see more mainstream events aimed at the LGBT community in Thailand. This was a first for the country. The first draft bill had not made much progress and had not reached parliament after six years in the making. The “Registration of Civil Partnership” has 15 sections but has had many issues along the way. Passing the law means that many laws in Thailand will need to be amended. This in itself will be a very burdensome process. The 15 sections soon became 63 sections to cover more issues then to 4 sections.

Change arrives in Asia

The year 2019 saw Taiwan become the first Asian nation to legalize same-sex marriage. It is however interesting how Taiwan changed its laws. They did not amend the marriage law. What they did was simply to create a new law. They have a law for same-sex marriages. They are however also not allowed to adopt children unless the child or children is genetically related to them.

Taiwan added additional clauses in that a man can only marry a foreign man where the foreign man’s government allows same-sex marriage. This was however a major step in Asia to overcome many of the issues that same-sex couples experience. Here again, it solves the inheritance issues, finance, insurance, medical aid, and other benefits that are not afforded to same-sex couples.

The year also saw Thai textbooks change. As stated in the Bangkok Post, “Previously, these textbooks featured negative content alluding to LGBTI people as sick, sexually deviant or worse”. Future Forward Party’s Tanwarin Sukkhapisit also became the first non-binary Member of Parliament in Thailand. This added a new dimension to Thai politics. Future Forward Party (FFP) wanted to set up an additional house committee. In this one on gender diversity, however, the vote was 365 against and 101 in favor. Strangely enough, only 70 of the 101 in favor were from the FFP which again showed a shift in Thai politics. They stated again that they will push for the amendment of Section 1448 of the Civil and Commercial Code. The code currently only recognizes marriage between a man and a woman.

The year 2020 saw no real movement due to Covid lockdowns. The cabinet had passed the bill to the government whips for consideration. The whips however asked the sponsors of the bill to review its content. They had questioned its necessity as well as the sponsors’ actual intentions. This while they also have to address religious sensitivity. Here comes a bit of a difference in the proposed bill. Civil Partnership Bill would allow same-sex couples to register as life partners, entitling them to rights and benefits as married, heterosexual couples. Same-sex couples however won’t be eligible for government officials’ welfare benefits, as heterosexual couples.

Delays, Courts, and the Constitution

Nothing moved in 2020 as parliament had more urgent matters with the Covid emergency and other financial issues. To get the bill on the emergency agenda of parliament. The Foundation for SOGI Rights and Justice then lodged a complaint with the Central Juvenile and Family Court. The question was to determine if the current Section 1448 of the Civil and Commercial Code (marriage is between a man and a woman) is compliant with Section 27 of the 2017 constitution (Unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition).

The legal process they used was a good one as the Central Juvenile and Family Court cannot hear a Constitutional issue. They would have to pass it to Thailand’s Constitutional Court. In essence, they used the lower court as a “postman” in submitting the constitutionality interpretation petition to the Constitutional Court. The case was postponed to December 2020.

On 31 December 2019, the Constitutional Court of Thailand decided not to accept the petition. The court noted that there were procedural problems in how the matter was brought before the court. Also that the government was in the process of proposing a Civil Partnership Bill.

The argument that keeps repeating

We always return to the same issue and the same arguments. In 2021 the argument for title change from Mr. to Ms. is again on the agenda with more of the same arguments. There had been other bills pushed for review. There was the Gender Identity Bill which was unofficially pushed by the Department of Women’s Affairs and Family Development in 2017. The draft had many complaints as it set the requirements had very restrictive eligibility criteria. With regards to title change, it would require irreversible sex-change surgery and a diagnosis of gender identity disorder. This argument has returned more than once over the last 10 years (require irreversible sex-change surgery) for a title change.

Cabinet approves Civil Partnership Bill (First Reading)

June 2022 arrives and the cabinet approves the Civil Partnership Bill. The Council of State has vetted the bill as well as all the legal amendments. This has now been forwarded to the cabinet. Now following the cabinet approval, they will then need a vote in the House of Representatives.

The bill is far more extensive than the laws of Taiwan. Same-sex engagement, as well as marriages, affect some existing Thai laws that must be amended. Civil partners as couples born of the same gender. Civil unions will now be available to same-sex couples, at least 17 years old and one must be a Thai national. They will also have the same legal rights, regarding personal and jointly held property, as well as the right to adopt children and inheritance. This is the same as heterosexual couples.

The bill passed on its first reading in a vote of 210 to 180 with 4 abstentions. Time will tell what happens next. We do recall what happened in 2007 after the first reading. The second reading did an about-turn. Why the sudden turn on the issues over the space of 2 years we don’t know.