On 17 November 2021, the Thai Constitutional Court ruled that Article 1448 of the Civil and Commercial Code, which states that marriage can only be contracted between a man and a woman, does not violate Section27 of the Constitution, which states that all persons are equal, and equally protected, under the law.
It also observed that parliament, the cabinet, and other relevant agencies should draft legislation to grant rights to LGBTQ people.
Pride flags with the message "Marriage equality" hung above the Ratchaprasong Intersection during the 28 November 2021 protest
The ruling was made after a petition filed by Permsap Sae-Ung and Puangphet Hengkham was forwarded to the Constitutional Court by the Central Juvenile and Family Court. Permsap and Puangphet filed a complaint with the Central Juvenile and Family Court in early 2020 after they were denied marriage registration by the Bangkok Yai District Office and asked the Court to either order the registrar to register their marriage or to forward their complaint to the Constitutional Court to rule whether Article 1448 violates the Constitution.
The ruling sparked criticism from activists and members of the public, many of whom expressed their disappointment and anger at the Court’s decision and called for the law to be change so that everyone has equal rights, while some also noted that the ruling came a week after the Constitutional Court’s 10 November ruling that calls for monarchy reform are treasonous.
Meanwhile, during Thailand’s Universal Periodic Review session on 10 November 2021, Ministry of Foreign Affairs Permanent Secretary Thani Thongphakdi said during his opening statement that the Thai government is working on promoting LGBTQ rights and is in the process of revising the law on gender equality and “developing a specific law on civil partnership.”
LGBTQ rights activist Matcha Phorn-in, founder and executive director of Sangsan Anakot Yawachon Development Project, V-Day Thai coordinator, and co-president of International Family Equality Day (IFED), said that considering the overall human rights situation in Thailand, the Constitutional Court’s ruling on the call for monarchy reform, and the fact that the hearing has been repeatedly postponed, she was prepared for the ruling to not be in favour of the movement, although she said that the Thai government’s promise to the international community during the last UPR session gave her hope.
“Part of me was prepared, but once the ruling was issued, I felt horrible, because it reinforces the idea that the state, and the Constitutional Court as the representative of the state’s mindset and power, does not see that what we are facing is a violation of human rights and sees that not allowing LGBTQ people to marry equally does not contravene the principles of the Constitution, and if we go back to the Constitution, which says that people must receive equal treatment in Thai society, it is not reflected at all in practice and in the law,” Matcha said.
Matcha (Centre) with her family during their 100-kilometre run to campaign for marriage equality and the right to a family (Photo from Matcha Phornin)
Nevertheless, Matcha said that she received support from other activists, and that she will keep going. On 30 November, Matcha and her rainbow family – her partner Veerawan Wanna and their daughter Siriwan Phorn-in – along with other LGBTQ and ally team members, ran 100 kilometres from Chiang Mai to Mae Sariang in Mae Hong Son as part of their 16 Days of Activism Against Gender-Based Violence campaign for marriage equality and the right to a family, aiming to raise awareness and demand acceptance and legal protection for other rainbow families and LGBTQ couples.
No heaven for LGBTQ
Despite the Thai government’s attempt to promote the country as a heaven for LGBTQ people, the LGBTQ community in Thailand continues to face discrimination and violence. Students at many universities continue to have to file documents requesting permission to dress according to their gender identity, while trans people face discrimination in their workplace.
At the same time, LGBTQ couples are not allowed to register their marriage, depriving them of the legal rights, protection, and recognition that comes with being legally married and of their right to found a family.
This lack of legislation protecting LGBTQ people in Thailand, Matcha said, reflects the discriminatory attitude and homophobia still present in Thai society, which leads to hate crime. Such homophobic and transphobic attitudes are also the reason the law needs to be changed to ensure equal rights.
A protester during the 28 November 2021 protest has a sign taped to their back
Matcha said that there are many LGBTQ families in Thailand whose children are suffering in school because their parents are not recognized by law and are bullied and discriminated against – a violation of children’s rights. She also said that in many cases, only one parent is legally recognized, which affects the child’s safety in cases of emergency if their parent is not able to sign certain documents.
“There are many other LGBTQ parents who are not accepted by society, their family, and the law. In practice, they care for their children as their children, but legally the law does not accept them, so it is as if they are not in the same family,” Matcha said.
Matcha herself was not able to legally adopt her daughter Siriwan, because she was not accepted by her daughter’s biological family due to her sexuality, even though they have been a family almost 11 years. Whenever documents are required by her daughter’s school, she must have Siriwan’s biological father sign a proxy authorization.
However, this is not possible for more official procedures. Matcha said that she and her partner once wanted to take their daughter on a family trip to Japan, but found that they were not able to get their daughter a passport. She also said that Siriwan was once invited to join a conference, but was not able to travel for the same reason, depriving her of her right to travel, and if Siriwan wants to take out a student loan, Matcha would not be able to be her guarantor because they are not each other’s family in the eyes of the law.
The lack of legal protection and recognition forces LGBTQ couples to seek legal loopholes in order to be granted protection. Matcha said that there are cases where one partner would have their parent adopt their partner so that they would be legally recognized as family. Matcha said she does not oppose to this, but finds it painful and unacceptable in terms of human dignity, as people who are partners in practice have to be recognized as siblings in the eyes of the law in order to have the rights and benefits which come with being a family. She also said that they can never be sure whether this method would truly grant them legal recognition and that it forces them into a situation where they do not have the same protection as everyone else.
“Thailand has always been deceiving the world that it is a heaven for LGBT people, but there is not even a single law protecting us, so I think that it is time for us to strip away Thai society’s mask and make sure people know that the situation facing LGBT people in Thailand is as bad as anywhere else in the world. It is not good at all,” Matcha said.
“The overall situation of democracy, human rights, and LGBT rights in Thailand is very bad, so it is something we have to take in order to make the law in our country better so that we are protected and are granted the same dignity as everyone else, and then we will be able to say on the international stage that we have a law protecting everyone without discrimination.”
A protester during the 28 November 2021 protest holding a sign saying "Marriage equality = human right"
The issue could also lie in the text of the existing law itself, which is still very much based on the gender binary. Section 27 of the Constitution states that “men and women shall enjoy equal rights,” and when Permsap and Puangphet first filed a complaint with the Ombudsman in early 2019 after they were denied marriage registration by the Phasi Charoen district office, their complaint was dismissed on the grounds that denying marriage registration to LGBTQ couples is not discrimination because the law only considers gender assigned at birth.
Khemthong Tonsakulrungruang, lecturer at the Faculty of Political Science, Chulalongkorn University, explained that, when the Constitution was drafted, the main issue was equality between men and women, and so the text was written in such a way to be clear. When it was said later that the concept of gender identity should also be included in the Constitution, there was an argument that every gender is already included in the terms “men and women.”
However, Khemthong said that this is not true in practice. Despite the constitution drafting committee’s claim that there is no need to include the concept of gender in the Constitution because every identity is included by the terms “men and women,” when it comes to the Ombudsman or the courts, gender identity is not recognized.
Khemthong said that we may need to change our interpretation of the law, and if everyone understands that when the law says “men and women,” every gender identity is included, amending the text itself may not be necessary. Nevertheless, he said that, if society is very conservative and refuses to change its way of reading the law, an amendment could be more effective.
The road ahead
An activist stood on top of scaffolding during the 28 November 2021 while wearing a wedding dress and wrapped in clothes the colour of the LGBTQ Pride flag as part of a campaign for marriage equality
Currently, two bills on marriage for LGBTQ couples are already waiting to go before parliament.
In June 2020, the Cabinet approved of the Civil Partnership bill proposed by the Ministry of Justice, which defines “civil partnership” as a union between two people of the same gender, both of whom must be at least 17 years old and at least one of whom must be a Thai national.
The Civil Partnership bill has previously been criticised by NGOs and LGBTQ rights activists, who questioned the need for separate legislation legalising LGBTQ marriages and raised concerns that the bill will deepen the stigma against the LGBTQ community in Thailand. They also criticized it for not giving LGBTQ couples the same rights as heterosexual couples and for being unclear about whether certain rights are granted, such as whether a person in a civil partnership is allowed to make medical decisions on behalf of their partner, or whether they are allowed to take their partner’s last name.
Later, in July 2020, a bill proposing amendments to the sections on marriage and family in the Civil and Commercial Code was put up for public consultation. It was proposed by Move Forward Party MP Tunyawat Kamolwongwat and proposes that the terminology used in the law be changed to use “spouse” instead of “husband” and “wife” and “person” instead of “man” and “woman.”
The bill also proposes to raise the age at which a person can legally marry from 17 to 18 years.
The proposed amendments will 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.
Both bills still have to be approved by parliament before becoming law. The bill proposed by Tunyawat already appeared on parliament agenda in early 2021, but has yet to appear before parliament.
Despite the Constitutional Court’s ruling, these processes should be able to keep going. Khemthong said that the bills waiting to go before parliament have to wait their turn, but going through the judicial channel is seen as a fast track, as getting a court order would speed up the process because the court would normally set a time limit for legislation to be enacted.
Khemthong explained that the legislative process is usually a political process, and it is not necessary for the courts to be involved; it is merely an option for those involved to decide whether they want to go to court. He also explained that the channel is available to ensure that no legislation is enacted that contravenes the Constitution or is not in accordance with the overall legal system.
He said that the Court’s ruling, in which it says whether something is right or wrong and what must be done, is clear and binding for every organization, which, if the order is not followed, will be considered to be neglecting their duty. In the case of the recent amendment to the abortion law, the Constitutional Court ruled that Article 301 of the Criminal Code, which criminalises abortion, violates the Constitution and ordered the law to be amended within 360 days of the ruling – a tactic Khemthong said is used by Constitutional Courts in many countries to reduce tension, since it gives parliament time to amend the law instead of having the law immediately become invalid.
However, in the case of the marriage law, the Court ruled that it does not go against the Constitution, but observed that new legislation should be drafted to grant rights to LGBTQ people. An observation, Khemthong said, is only a recommendation and not an order, and therefore would not be legally binding in the same way as a ruling and does not affect the ongoing parliamentary process, only that this specific complaint would be closed.
Nevertheless, Khemthong said that the Court should only rule whether something is right or wrong, as making observations would seem like the Court is trying to tell the government what it should do, and the government might not know how it should handle such recommendations.
“Personally, I think that the court should avoid making observations. If it’s wrong, it’s wrong. If it’s right, it’s right, and that’s it, because an observation turns the court into what some people would call a ‘government by court’,” Khemtong said. “The court is using its own personal opinions about social or political issues to make recommendations to the government. Something like this is not part of a ruling or the court’s legal authority. This is like the court is saying more than the law allows it to say. The law only allows the court to say whether something is right or wrong, but the court said that this is not wrong, but personally this is what the court likes. It’s beyond what the law allows it to do.”
He also speculates that, even though the court said that new legislation should be enacted, it does not mean that the Civil and Commercial Code will never be amended. Even though it seems like the Court wanted there to be a separate legislation for LGBTQ marriages, one can never say for sure until the full text of the ruling is released.
An activist at the 28 November 2021 protest wore a wedding dress and held a placard inviting people to back the new marriage equality bill
Meanwhile, civil society is moving to put their own bill on marriage equality before parliament. On 28 November 2021, during a protest at the Ratchaprasong intersection, the Rainbow Coalition for Marriage Equality, a network of over 40 civil society organizations and activist groups, launched a petition proposing amendments to the Civil and Commercial Code to allow marriage registration between two people of any gender.
The petition proposes to amend Article 1448 of the Civil Commercial Code, which governs marriage, so that marriage registration is allowed between two people of any gender, instead of only between a man and a woman. It also proposed to raise the age at which people can legally marry from 17 to 18 years old.
The petition also proposes to replace the terms “man” and “woman” in every article of the Civil and Commercial Code relating to marriage with “person,” as well as to replace “husband” and “wife” with “spouse” and “father” and “mother” with “parents.”
The amendments will grant LGBTQ couples the same rights, duties, and legal recognition as heterosexual couples, including the right to adopt a child together and be recognized as the child’s parents, the right to have the power of attorney to make medical decisions of behalf of one’s partner and to press charges on behalf of one’s partner, the right to use one’s partner’s last name, and the right to inherit property from each other without the need for a will.
The rationale of the proposed amendments says that gender-neutral language is used so that the same rights, duties, and legal recognition are granted to persons of every gender and sexuality.
Within 24 hours of its launch, the petition gained over 150,000 signatures, ten times the number legally required for a bill to be put before parliament, and as of 22.20 on 3 December 2021, it has gained over 260,000 signatures.
Protesters during the 28 November 2021 protest flashed the three-finger 'Hunger Games' salute, now a well-known resistance symbol in Thailand
During the 2020-2021 pro-democracy protests, LGBTQ rights were among the major campaign issues in the movement.
A report by the Observatory for the Protection of Human Rights Defenders, published in February 2021, noted that “an unprecedented movement for gender equality” emerged during the protests, as women and LGBTQ people became increasingly outspoken about gender issues and various women and LGBTQ rights groups were formed. Young people spoke out against gender stereotypes, gender-based discrimination, sexual harassment, and rape culture, and called for better representation of women and LGBTQ people on protest stages, marriage equality, decriminalization of sex work, abolition of the gender pay gap, and a democratic system that respects and promotes gender equality.
Meanwhile, young women and LGBTQ people have been at the forefront of the movement, both as participants and as protest leaders and organisers. Young women made up the majority of participants, while high school girls played a key role in protests against the outdated school system and the abuse they face.
For Matcha, she saw a contrast between the older and younger generations. She noted that many young people are identifying as LGBTQ or said that they are alright with having LGBTQ friends and tend to support them. However, Matcha also said that these young people are marginalized and their voice is never listened to. They are excluded from participating in policymaking and the legislative process, while the older generation, many of whom are homophobic, sexist, or even anti-democratic, still rules over the political space.
Matcha said that what has made her feel that LGBTQ people are still not accepted is that, after the Court’s ruling, she received very little support from people outside the LGBTQ community, and that people of her generation who are not LGBTQ did not stand with her and her community or show their support.
She said that the lack of support from outside the community reflects Thai society’s homophobic attitude, as many people are worried that if they say they support LGBTQ rights, others will think that they are also LGBTQ, while many LGBTQ people are still unable to come out to their family or to speak out for their own rights.
While Matcha sees that LGBTQ individuals in Thailand are suffering due to lack of legislation, she believes that things can get better with the development of democracy. She said that the pro-democracy movement, which includes young people and marginalized people who are speaking out for their rights, from the right to resources and indigenous rights to abortion rights and marriage equality, is a movement that will change the conversation about human rights in the country.
“I see the possibility. No one can stop the change towards something better, so what is still lacking in Thai society is that those who are in power are not listening to the voice of the people and are not allowing them to participate in making changes,” Matcha said.
“Changing the Constitution will allow changes in legislation and policy on participation and make the democratic system better, but now the Constitution can’t be changed. We don’t have a full democracy. Elections are not transparent and can’t be investigated. These things go back to the fact that we are still in an oppressive society, and the wave of young people who are not backing down and every marginalized person who are being oppressed, whether they are farmers, or people who work hand to mouth in the business sector, everyone is now angry at the unjust social system and we are about to change the face of Thailand.”