Amidst greater popular awareness of the struggles faced by LGBTQIA+ individuals in Thailand, activists are challenging Thai laws restricting marriage to heterosexual couples as being unconstitutional. While significant progress on human rights is unlikely to occur under the current government, Thai citizens are using their voices to call for change.
On the International Day Against Homophobia, Biphobia, and Transphobia on 17 May 2022, representatives of Thailand’s ‘People’s Court’ donned judges’ robes with rainbow sashes and gathered outside the Bangkok Art and Culture Centre (BACC). As a coalition of civil society groups and individuals formed for this event and not a recognised legal entity, these activists’ goal was to publicise their recent ‘ruling’ disputing the constitutionality of Article 1448 of the country’s Civil and Commercial Code. Stipulating that ‘a marriage can take place only when the man and woman have completed their seventeenth year of age’, that article restricts the exclusivity of marriage registration to heterosexual couples. The People’s Court views that Article 1448 violates Sections 4, 25, 26, and 27 of the 2017 Constitution of the Kingdom of Thailand, and its ‘verdict’ rebuts a recent Constitutional Court ruling upholding the article and calls for the expansion of equality among the sexes and lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) people by recognising sexually diverse marriages.
Marriage equality (somrot thaothiam, สมรสเท่าเทียม) receives considerable public support in Thailand, and many recent activities including the above event have advocated for advancing the rights of Thailand’s LGBTQIA+ community. A November 2021 petition circulated by the Rainbow Coalition for Marriage Equality, a network of over 40 civil society organisations from all regions of Thailand, received over 150,000 signatures within 24 hours of its launch. This reflects how concern about the rights of the LGBTQIA+ community unites Thai people in Bangkok and the provinces. Though the Sangha, the governing body of the Buddhist order of Thailand, does not offer an official position on marriage equality, many sexually diverse individuals are ordained as monks, monks perform marriage ceremonies for sexually diverse couples, and some monks even take on active roles in supporting LGBTQIA+ rights.
This secular and Buddhist openness in Thai society corresponds with increasing awareness of the myriad legal, economic, and social obstacles faced by sexually diverse couples and LGBTQIA+ people, belying the image of Thailand promoted to tourists as a progressive, LGBTQIA+-friendly paradise. Tolerance but not full acceptance of sexually diverse people has long been the status quo. A 2019 UNDP report found that almost two-thirds of Thais positively viewed LGBTQIA+ individuals but were less comfortable if those individuals were their family members. Thai lawmakers pragmatically understand that Thailand’s reputation as a haven for LGBTQIA+ people, sex tourists, and curious visitors who wish to encounter kathoey (members of the third gender community) brings economic benefit. While they may permit these activities and relationships for the sake of revenue, the demand for marriage equality potentially threatens the modern, patriarchal institution of the heteronormative family.
By using the same legal tools, techniques, and sources that the Constitutional Court employed to legitimise its decision upholding Article 1448, the ‘People’s Court’ shows how Thailand’s existing legal frameworks can support the promotion of LGBTQIA+ rights.
Members of Thailand’s Constitutional Court oppose this perceived threat to the ‘traditional’ Thai family. In November 2021, the court upheld the constitutionality of Article 1448, stating that it feared not only the lack of a ‘delicate bond’ that forges the ‘family institution’ between non-heterosexual couples, but also the misuse of marriage by people who wished to ‘benefit from state welfare or tax deductions’, which in turn could ‘affect the security of the state or public order or good morals of the people’. The court had dismissed the petition of Permsap Sae-ung and Puangpetch Hemkham, a sexually diverse couple both assigned female at birth who wished to register their marriage.
The ‘People’s Court’ decries how laws like Article 1448 increase injustice within already vulnerable groups. It affirms that “Law…should be an instrument in promoting the quality of life of the people”, and in ‘Ruling No. 1/2565’, concludes that Article 1448 contradicts the 2017 Constitution. By using the same legal tools, techniques, and sources that the Constitutional Court employed to legitimise its decision upholding Article 1448, the ‘People’s Court’ shows how Thailand’s existing legal frameworks can support the promotion of LGBTQIA+ rights. Their ‘ruling’ thus reveals and harnesses the potential for change that the Constitutional Court foreclosed. The ‘People’s Court’’s document handing down its ‘ruling’ looked just like a Constitutional Court decision, with one crucial difference. The court’s garuda seal, the emblem of Thailand, was replaced by a rainbow-coloured block and gavel designed by a queer Thai female supporter of LGBTQIA+ rights. The gavel’s head comprises a hand flashing the three-fingered salute popularised by the country’s pro-democracy protestors, encapsulating the interconnected nature of struggles for human rights.
The ‘People’s Court’ ran an inclusive, open process for the drafting of its ‘ruling’. From April to May 2022, a series of virtual workshops open to anyone eventually involved about 30 members of activist groups from Central, Northeast, and Southern Thailand, including Thai Lawyers for Human Rights, Femliberateth (Feminist plotaek, เฟมินิสต์ปลดแอก), Feminist FooFoo (Feminist fu fu, เฟมินิสต์ฟูฟู), Mekong Chi Mun Feminists (Feminist khong chi mun, เฟมินิสต์โขงชีมูล), and Mermaid Feminists (Feminist moermed, เฟมินิสต์เมอร์เมด). The idea to rewrite the Constitutional Court’s ruling came from scholar Tyrell Haberkorn, who is writing a book about the National Council for Peace and Order (NCPO) regime using the same technique. Haberkorn felt that the method of feminist judgement rewriting would be a useful tool for organising among Thai activists and citizens.
Despite heavy rain, a large crowd gathered at the BACC on 17 May 2022 to listen as ‘judges’ read the ‘ruling’. Members of Femliberateth and Feminist FooFoo performed Sida lui fai (‘Sita Crossing Through Fire’), the Thai version of the Chilean feminist performance piece, ‘A Rapist in Your Path’, which protests gender-based violence. The song has been performed at gatherings and protests multiple times since late 2020 and its lyrics have been adapted to speak to other issues such as the right to a safe abortion and students’ rights.
Thanyok, a member of the ‘People’s Court’ who read out a section of the ‘ruling’, was excited to participate. ‘I could renounce the human rights violations against LGBTQIA+ people and share the power of the pride, hope, and dreams that are within me with all sexually diverse people’. Jirajade Wisetdonwail, a facilitator who joined the judgment rewriting process, emphasised the ‘judgement’’s relationship to other forms of violence perpetuated by Thai institutions. Jirajade stated, ‘I think this ruling will help people who might feel hopeless about the judiciary’s injustices to be inspired to write new judgements for other cases, such as those about labour rights, sexual violence, and more.’ Though the Constitutional Court is unlikely to revise its decision in response to the ‘People’s Court’’s ‘ruling’, the event is a reminder that Thai people are keenly aware of the decisions the Constitutional Court is making and will continue to use creative strategies to call for a more just society.