Activists presented a rewritten version of Constitutional Court’s ruling on marriage law
Originally published on Global Voices
Activists reading the rewritten version of the Constitutional Court ruling on marriage law, Photo from iLaw
This article was originally published by Prachatai, an independent news site in Thailand, and an edited version is republished by Global Voices under a content-sharing agreement.
On May 17, the International Day Against Homophobia, Transphobia, and Biphobia (IDAHOT), activists held a rally for LGBTQ+ rights and called for marriage equality by rewriting the Constitutional Court’s ruling on the Thai marriage law.
On November 17, 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 Section 27 of the Constitution, which states that all persons are equal, and equally protected, under the law.
The ruling sparked public outrage, as the full text was found to be archaic, sexist, and homophobic, such as when it defines marriage as “when a man and a woman are willing to live together, to build a husband and wife relationship to reproduce their offspring, under the morals, traditions, religion and the laws of each society,” and that it is, therefore, reserved only for a man and a woman. The ruling also mentions that LGBTQ+ people cannot reproduce and that such marriage is against the natural order, and that LGBTQ+ people cannot form the same “delicate bond” as that of heterosexual families. It also stated that legalizing LGBTQ+ marriage would place a greater “burden” on the government to provide welfare and benefit to those couples. Another part of the ruling also compared LGBTQ+ people to animals with strange behaviour.
On March 8, International Women’s Day, Thai Lawyers for Human Rights (TLHR) and the activist group Feminist’s Liberation Front Thailand launched the “People’s Judgement” project with a panel discussion on marriage equality, during which panelists said the Constitutional Court’s ruling showed a lack of understanding and connection with the people, and damages gender justice in the country.
Tyrell Haberkorn, Professor of Asian Languages and Cultures at the University of Wisconsin-Madison, said during the discussion that the project aimed to provide an opportunity for the public to criticize the Constitutional Court’s ruling in order to imagine a more equal future by rewriting the ruling.
Haberkorn said that the project took inspiration from activists and feminist lawyers in other countries, such as Canada, Australia, New Zealand, Ireland, and the UK, which use this method to push for changes in the legal system.
Meanwhile, TLHR lawyer Poonsuk Poonsukcharoen, another panelist, said that Thai law had never defined marriage as a union between a man and a woman, but there is a stipulation under Article 1448 of the Civil and Commercial Code, which is being challenged on whether it is discriminatory, and she is not sure where the Constitutional Court got its definition of marriage. She also said that, according to the Constitutional Court, Thai tradition is different from that of other countries and that a law would be sustainable only if it doesn’t go against the views of the people, and questioned how the judges could say what the public’s opinion was on any matter.
Meanwhile, gender equality activist Chumaporn Tangkliang said during the panel discussion that the public had the right to write a ruling because everyone is human and equal, and that, while judges have law degrees and a job, people in the LGBTQ+ community must live with not being allowed to register their marriage, so they have the right to write their own ruling. Doing so would return to them their power and human dignity.
Activists gathered on the Pathumwan Skywalk for a rally during the International Day Against Homophobia, Transphobia, and Biphobia. Photo from iLaw
On May 17, activists gathered on the Pathumwan Skywalk for an IDAHOT rally, during which they presented a rewritten version of the Constitutional Court ruling on marriage law, which was written by activists and members of the public who signed up to participate in the People’s Judgement project. It states that Article 1448 of the Civil and Commercial Code violates Sections 4, 25, 26, and 27 of the Constitution, noting that even though Section 27 states that men and women have equal rights, it does not mean that anyone with a different gender identity or sexual orientation does not have equal rights. The rewritten ruling said that not discriminating on the basis of gender includes everyone regardless of their identity or orientation, and a law limited to sex as assigned at birth would lead to discrimination against a group of people in the society on the basis of gender, which would disrespect their human dignity.
Oppressing people who are different is not good morals, no matter how one defines good morals. Neither sexual nor gender bias should be a factor in deciding who can marry and nor should fears that extending the right to marry will increase the burden on the state or that people will exploit public benefits and impact state security. Equality in this country has never been a gift from the state but is a result of a long struggle.
Currently, two bills on marriage for LGBTQ+ couples are already waiting to go before parliament. One is the Civil Partnership bill proposed by the Ministry of Justice and approved by the Cabinet in June 2020. It has previously been criticized by NGOs and activists for not giving LGBTQ+ couples the same rights as heterosexual couples and for being unclear about whether certain rights are granted. Activists also questioned the need for separate legislation legalising LGBTQ+ marriages, and raised concerns that this would deepen the stigma against the LGBTQ+ community in Thailand.
Another bill proposes amendments to the sections on marriage and family in the Civil and Commercial Code, or the Marriage Equality bill, initiated by MPs from the Move Forward Party, which will change the terminology used in the law to “spouse” instead of “husband” and “wife,” and “person” instead of “man” and “woman.”
Nevertheless, the Marriage Equality bill can still go before parliament. According to the 2019 Rules of Procedure of the House of Representatives, a bill proposed by an MP or by civil society can be forwarded to the Cabinet for a 60-day consideration period and must be returned to parliament after the time has lapsed. The House Speaker may also put it on the parliament agenda even though it has not been returned.
Meanwhile, signatures are being collected for another Marriage Equality Bill to be proposed to parliament. On November 28, 2021, during a protest at the Ratchaprasong intersection in Bangkok, 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. The petition proposes to amend Article 1448 to allow marriage registration between two people of any gender. It 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, if passed, will grant LGBTQ+ couples the same rights, duties, and legal recognition as heterosexual couples, including the right to adopt a child 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.
Within 24 hours of its launch, the petition gained over 150,000 signatures, 10 times the number legally required for a bill to be put before parliament. As of May 20, it has gained over 304,000 signatures.
Written by Prachatai