Article 30 of the 2007 Thai constitution prohibits discrimination on the basis of sex. The official statement of intention clarifies that this includes discrimination on the basis of gender, gender identity and sexual orientation (referred to as "sexual diversity" in the text). It was the first time in the country that the rights of lesbians, gays, bisexuals and transgenders (LGBTs) were enshrined in the law of the land -- not to mention the highest law of the land.
This recognition of human rights on the basis of sexual orientation and gender identity (SOGI) was the result of engagement by several LGBT activists with the Constitution Drafting Assembly (CDA). To shore up the legitimacy of the process, the CDA was comprised of representatives from a wide section of the population. Minority groups were outreached for inputs. However, as a military-designed legislative body in lieu of an elected parliament, the CDA's legitimacy was far from universally accepted.
By accepting the product of the CDA and lauding Article 30 as championing SOGI rights, LGBT activists were inevitably dogged with the accusation of justifying the coup and reaping benefits from it.
However, most LGBT activists did not see any dilemma in this, arguing that past democratic governments never bothered to enact LGBT-friendly laws and that even those who called themselves "progressive" like the redshirts are often hostile to LGBT rights. The violent shutdown of the 2009 Chiangmai Gay Pride parade by redshirt protesters is an obvious example.
Since May 22, however, that product of a coup was rendered a useless piece of paper by another coup and we need to thank the junta for getting us out of this awkward position. Had the 2007 constitution not been torn up, we would still be living under the illusion that non-democratic means can actually advance human rights.
For some time now, we heard that Vietnam was on the verge of becoming the first Asian country to legalize same-sex relationships. The Vietnamese government even supported many LGBT activities. It seems that the Communist Party is willing to accommodate new social changes in order to pacify its population as long as the D word is not heard.
Many Thai LGBTs couldn't help but feel envious of our Vietnamese brothers and sisters, They may wish that the junta may, in their plans to amend hundreds of legislations, go as far as legalizing same-sex relationship here ahead of Vietnam.
In fact, this development would also be welcomed by many LGBT activists, as a less frustrating process than its democratic counterpart. The process began in the late 2012 when some members of the parliament took the initiative to draft a similar legislation. However, with lack of understanding of human rights principles, they ended up with a faulty draft unloved by the community whose rights it was supposed to promote. Among its defects are higher age of consent and lack of provision on children.
Hierarchy of hands
Is a perfect law enacted by a dictatorial regime better than a faulty democratically passed one? There are at least three objections to that conclusion.
First, the authoritarian father-knows-best attitude denies society the freedom of expression, freedom to dissent, and the right to self-determination. This is particularly ironic when it comes to LGBT rights which is all about non-conforming self-expression.
(Regrettably, there are many among LGBT activists who have no faith in the democratic process and often fail to recognize the human rights of others. More lobbyists than human rights activists, they are willing to sacrifice the freedom of expression of others, while demanding such rights for themselves.)
Without freedom of expression and the right to self-determination, society is deprived of the opportunity to work out its own solution on the issue through debate and negotiation. And before reaching that stage, a law would have little social root to support it.
The fate of Article 30 shows how a law hastily drafted in less than democratic environment can be ripped up at the whim of the next power-that-be. Once torn up, such a law would vanish as though it had never existed, and we are back to square one. How useful is such an arbitrarily enacted law? That's the second point.
Third and most important, such a law is based on an imbalanced power relationship. This has much to do with the Thai cultural attitude and can also happen under democratic government. For example, when LGBT activists criticized the shortcomings of the draft law, they were seen as biting the hand that fed them. Like most of Thais in high offices, the parliamentarians were plagued with the superiority complex of doing a 'favor' rather than a 'service' to the people. For them, LGBTs belong to a group to be "helped" with pity, along with the poor, the disabled, ethnic minorities and other "underclasses".
This is typical of the hierarchical relationships in Thai culture, where "the hand that gives is higher than the hand that receives". It is a major stumbling block for the evolution of democracy with its essential belief in social and political equality and no person's vote is more important than another's. Instead of viewing minorities as those who need bones of favor thrown their ways, a democracy sees measures to promote equal rights as a guarantee for a just society.
Rather than a hierarchy of hands, democracy is a group of hands engaging in the acts of shaking and un-shaking -- all at the same level. A democratically legislated law is a social contract negotiated with all parties. In the process of debate, negotiation and compromise, however, there is also the process of learning and understanding which raises the overall awareness of society. Therefore, the resulting legislation would not be a standalone legislation but supported by social consensus.
Instead of Vietnam, I look up to the examples set by civil society in the Philippines, where LGBT grassroot groups in all shapes and forms across the country continue to engage -- from the ground up -- with their local and national governments. Rather than hoping for a top-down LGBT-friendly law enacted by a military government, I prefer to wait until democracy returns in order to engage in the task of building acceptance of LGBTs from the bottom up, until the rights of LGBTs are accepted by the majority of society -- as a social contract, as the law enacted by the will of the people. It will be painstakingly slow process, but there's no shortcut to democracy.
Unless we work so that the rights of minority are not a matter of favor, but equality, unless we graduate from beggaring favor and start fighting for our rights with dignity and pride, LGBTs will always be seen as a pitiable underclass, rather than equal human beings.
This must be done in an atmosphere where even the dissenting voice of the most homophobic person will not be silenced. This, however, is far from being the case today.
Therefore I thank the coup for reminding me what's most important as a human rights activist and for strengthening my faith in democracy.
(The opinion expressed herewith belongs solely to the author. It doesn't reflect the position of the publication or any group that the author may belong to.)