Constitutional protection of sexual minorities - will Thailand join the club?

The new Thai constitution put forward by the Constitution Drafting Committee (CDC) would ensure the constitutional protection of sexual minorities against discrimination for the first time in Thai constitutional history. The CDC added “sexual orientation” to the list of prohibited grounds of discrimination in the equality clause. If the draft is approved by the junta (the National Peace and Order Council), it will be a major breakthrough in the Thai legal system. Thai law will finally catch up with the reality of the country.

The inclusion of sexual orientation in the equality clause is the success of years of lobbying by LGBTI advocacy groups. The group led by Nathee Theerarojanapong pressured the CDC already in 2006 to prohibit discrimination based on sexual orientation in the 2007 Constitution. The CDC dismissed the proposal arguing that the equality clause, that already prohibited discrimination on the ground of gender, covered all men and women regardless of their sexual orientation or gender. LGBTI rights activists have argued ever since that Thai law continues to discriminate against sexual minorities and it is for the constitution to ensure their substantive equality.

LGBTI persons are fairly well accepted in Thailand in comparison to its neighbors. Homosexuality has never been criminalized and revealing one’s own sexual orientation has become less of a social taboo. The National Human Rights Commission (NHRC) has also noted the better legal protection and more positive attitude towards LGBTI persons and is mainly concerned with campaigning for more equal treatment of LGBTI persons in workplaces, schools and family matters.

The expansion of the equality protection tops years of advocacy and legislative efforts to remedy a variety of inequalities that members of the LGBTI community have faced in Thailand. One milestone was the expansion of the Penal Code’s rape offence category to rape within same-sex sexual acts that previously could have only been classified as sexual indecency and carried much lighter punishment. But the 2007 amendment to the Penal Code took a gender-neutral approach and redefined rape to protect victims who belong to sexual minorities.   

In addition, several public universities finally agreed to allow third-gender students to cross-dress. Trivial as it may sound, a hierarchical and conservative Thailand is obsessed with uniforms. It is compulsory both to class and on graduation day, especially in graduation ceremonies where a member of the royal family awards the degree. But now, there are a few schools, where male students whom underwent complete or partial gender reassignment surgery were allowed to wear female uniforms. It remains to be seen whether other institutions will relax their rules as well.

Moreover, in 2011 the Supreme Administrative Court ordered the military to change the wording of its conscript exemption form that said that all Thai men are required to serve in the armed forces for two years unless they are deemed unfit on health grounds. Although gay men have not been exempted but transgender individuals were – due to the highly concerning formulation of the exemption form that have long labeled them “mentally ill”. As the form is always required by potential employers, as a proof that an applicant has already fulfilled his military duty, labelling an individual mentally ill created a permanent stigma and humiliation. The court found the practice violating a person’s human dignity, hence the change in language from “mentally ill” to “gender identity disorder”, which is a medical terminology and considered to be less derogatory.        

Although the progress is slow, the Thai legal system is gradually recognizing the existence of the LGBTI community. So what change might the new constitution bring about?

The main challenge for Thai LGBTI persons remains to be marriage rights. The Civil and Commercial Code defines marriage as the union between a man and a woman and the court stands firm on its long held view. A gay couple can perform a traditional wedding ceremony but the government will not issue a marriage certificate. The strict interpretation put same-sex couples at a disadvantage since their partners cannot receive benefits granted to spouses. Moreover, the surviving partner cannot inherit his or her partner’s estate unless it is clearly written so in a will. In 2013, the Rights and Liberties Protection Department and Parliamentary House Committee on Justice and Human Rights drafted the Civic Partnership bill, which would have officially recognized gay union and would have provided benefits similar to that of married (heterosexual) couples. However, the LGBTI community criticized the draft for excluding them from participating in the drafting process, not providing adequate coverage and for being narrow in scope, excluding the possibility of adoption, among others. LGBTI activists also put forward their own draft, however, the House of Representatives has not regarded same-sex marriage a priority. The bill was later dismissed after the House was dissolved in late 2013. Nevertheless, LGBTI activists vowed to propose the draft to the National Legislative Assembly again in the near future.    

Furthermore, in the seminal – and disturbing - Thai transgender case from 1981, the applicant asked the court’s permission to change his gender on her ID card that the Supreme Court declined, stating that only a woman capable of giving birth naturally can be classified as female for the purposes of the ID. In 2007, an amendment was proposed to the Name Act to end this contested distinction but the National Legislative Assembly rejected the idea for “fear of confusion.”

Even with explicit constitutional protection, challenges remain even beyond the issues of civil and political rights. In line with the Theravada Buddhist belief, many Thais still think that being gay is the result of bad karma from past lives that justifies lower societal status and worse treatment of gay people in society. During the 2014 protest, each side raised the sexual orientation issue to attack their opposition.

Given the scale of ongoing human rights violation in Thailand, Prayuth’s authoritarian regime is badly in need of legitimacy. The CDC’s decision to add sexual orientation to the list of prohibited grounds of discrimination in the constitutional draft is one of the right moves - that may also help to promote the regime. This is a rare success of a civic movement at the constitutional level. The NCPO did not raise any objection, nor did the general public. Thus the draft is likely to be accepted. When the legislative and the judicial branches are cautious to provide wider and more equal recognition for the LGBTI community, the change in the supreme law of the land is hoped to bring about change even more effectively.

Khemthong Tonsakulrungruang is a Constitutional Law scholar in Thailand

* N.B. Despite the CDC announcement on 15 January 2015 on the inclusion of sexual orientation as a prohibited ground of discimination in the 2015 Thai Constitution, the CDC Draft released on 17 April 2015, enumerates "sex" and "gender" in its equality clause (Article 34)