Marriage law does not violate the Constitution, says Constitutional Court

The Thai Constitutional Court ruled yesterday (17 November) that the current Thai marriage law, which states that marriage can only be contracted between a man and a woman, does not violate the Constitution.

The Court ruled that Article 1448 of the Civil and Commercial Code, which governs marriage, does not violate Sections 25, 26 or 27 of the 2017 Constitution, after a petition filed by Permsap Sae-Ung and Puangphet Hengkham was forwarded to the Constitutional Court by the Central Juvenile and Family Court.

It also observed that parliament, the cabinet, and other relevant agencies should draft legislation to grant rights to LGBTQ people.

Under Section 27 of the 2017 Constitution, all persons are “equal before the law, and shall have rights and liberties and be protected equally under the law.” This section also states that “unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious belief, education, or political view which is not contrary to the provisions of the Constitution, or on any other grounds shall not be permitted.”

In early 2019, Permsap and Puangphet along with For-SOGI, filed a complaint with the Ombudsman on the grounds that denying marriage registration to LGBTQ couples is discrimination. However, the Ombudsman ruled that such denial is not discrimination since the law only considers gender assigned at birth.

Permsap and Puangphet, together with For-SOGI representatives, then went to directly file a petition asking the Court to rule whether Article 1448 is in violation of Section 27 of the Constitution. However, their petition was dismissed on the grounds that they needed to follow administrative procedure as denying marriage registration is an administrative act.

On 14 February 2020, Permsap and Puangphet went to the Bangkok Yai District Office to request registration of their marriage. After they were refused, they appointed a lawyer to file a complaint with the Central Juvenile and Family Court to have the Court order the registrar to register their marriage, or to forward their complaint to the Constitutional Court to have the Constitutional Court rule whether Article 1448 violates the Constitution.

Two bills on marriages for LGBTQ couples are currently in progress: a bill proposing amendments to the Civil and Commercial Code, which was proposed by MPs from the Move Forward Party (MFP), and the Civil Partnership bill, proposed by the Ministry of Justice.

The amendments to the Civil and Commercial Code propose that the terminology used in the law be changed to use “spouse” instead of “husband” and “wife” and “person” instead of “man” and “woman.” It also proposed to raise the age at which a person can legally marry from 17 to 18 years.

These changes allow individuals to be legally married regardless of gender, and ensure that they receive equal rights, duties, and protection under the law. If the bill passes, LGBT couples who have registered their marriage will be able to adopt children together, make medical decisions on behalf of their partner, and in cases where one partner dies, the other will be able to inherit from their partner and make legal decisions about their partner’s assets.

The bill was submitted to parliament in June 2020. It has yet to go before parliament, although it has already appeared on parliament agenda.

Meanwhile, the Civil Partnership bill was approved by the Cabinet in June 2020, but still has to be approved by parliament before it becomes law.

This bill defines “civil partnership” as a union between two people of the same gender. To register as civil partners, both persons must be at least 17 years old, and one or both must be a Thai national.

The bill allows civil partners to adopt children, and gives them the power of attorney to act on behalf of their injured or dead partner in a legal proceeding according to the Criminal Procedure Code. It also includes a section on the properties of civil partners, which is separated into personal property and property acquired after entering into a partnership.

The Civil Partnership bill has been criticized by civil society for not giving LGBTQ couples the same rights as heterosexual couples, while putting LGBTQ couples under a different law could deepen the stigma against the LGBTQ community in Thailand and relegate them to the position of second-class citizens.

 

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