LGBTQ law change is an inevitability
The release of the Constitutional Court's full written verdict on same-sex marriage spells a rough path ahead for the campaign to ensure equal gender rights for all.
Issued on Thursday, the 12-page document provides a full explanation behind the court's ruling on Nov 17 that Section 1448 of the Civil and Commercial Code, which only allows for a man and a woman to register their marriage, is not against the Thai constitution.
The ruling responds to a request by the Central Juvenile and Family Court, which received a petition from a female couple whose request for a marriage registration was turned down last year by the registrar citing Section 1448.
The Constitutional Court's decision is based on the principle of Thai tradition and custom, defining marriage as "the voluntary agreement between men and women to live together within the husband and wife relationship".
The purpose of this relationship is to reproduce children, establish families, and maintain family lineages, so same-sex marriage, as described by court ruling as "sexual preference and attraction", does not fall in line with this purpose.
The idea of marriage being exclusive to heterosexual relationships aligns with the origin of Section 1448, introduced in 1976 and developed from the Civil and Commercial Code's 1923 version, which preserves Thai traditions and customs said to align with "nature".
Though it seems like the legislation contravenes the principle of human rights, according to the court, the legislation categorically protects the equal rights of men and women in marriage. It ensures their access to specific social welfare benefits created for each gender -- such as healthcare coverage for cervical cancer and prostate gland enlargement.
The state and lawmakers can bring gender rights protection to specific groups of people "as an exceptional case", suggesting the state may implement alternative laws to ensure legal marriage status for same-sex couples without changing the wording in Section 1448.
"Similar to the state and lawmakers who discover discrimination against people with different genders [beyond men and women, the state and lawmakers can initiate new laws [in separation from the marriage law] to protect [their rights] specifically."
In addition, the court raises concern for same-sex marriage fraud that may exploit the benefits from state social welfare or tax deduction, affecting state security.
Needless to say, the ruling broke many LGBTQ (lesbian, gay, bisexual, transgender and queer or questioning) hearts.
One of my LGBTQ friends said the ruling struck a blow to the Thai notion of identity. "The concept of Thainess strips me of my identity," he said, adding that Thai laws have been shaped by tradition and inherited customs, and have yet to change to meet modern standards and the expectations of a new generation.
I do agree with him. With respect to the law, it is about time the state and policy markers examine the meaning and characteristics of morality and righteousness defined in our legislation.
As the world becomes more globalised, is it still right to hold on to age-old Thai ideas of righteousness and morality? Can the concepts of Thainess and Thai morality evolve with time?
This legislation, in my opinion, speaks volumes about the Thai society of old. Originally written in the 70s, Section 1448 reflects gender norms of the time which defined relationships as being between men and women only. For me, this law was written to respond to the society and economics in the 60s and 70s -- the early decades of Thailand's modernisation driven with a booming economy and a requirement for large numbers of workers in manufacturing and urbanisation.
But this particular law might not speak to my generation. With respect to traditional marriage, the concepts of love and marriage are no longer cast in stone. The idea of love, marriage and even procreation, have evolved with time and recently changed into perhaps an unrecognisable form especially for older generations.
The line between the role of men and women in families and at work is blurred. Concepts of love and marriage are no longer exclusive rights to cisgender. Now, universal values such as love and respect for others' identities are mainstream, which people have discovered through social media and pass on as values regardless of sovereignty and race.
Our ability to love regardless of gender may identify our goodness, not tradition and custom.
Like women-men relationships, LGBTQ couples want to share their lives and decision-making with their partners -- from financial issues to medical decisions on behalf of another. But these are not allowed under Section 1448.
Same-sex marriage proponents are aware of the difficulties lawmakers face in amending Section 1448. They have instead turned to push for a civil partnership bill to allow them to share decisions with partners on issues, including property shared ownership, child adoption, and inheritance.
In 2015, civil society sought to prevent gender discrimination in all forms with the Gender Equality Act. But that does not ensure same-sex marriage unless Section 1448 is amended to allow equal marriage regardless of sexual orientation and gender identity.
In a rapidly evolving society, adopting a new set of values is necessary, especially regarding marriage law. In daily life, marriages and relationships among LGBTQ couples are a daily reality. They are part of a cultural new normal, if not mainstream already.
Like it or not, my parents' generation will have to prepare for big changes and learn to live with the gender identifications of their offspring and their in-laws.Terms like gay and lesbian will be outdated, replaced by newer definitions such as non-binary, agender and beyond. The young generation demand the freedom to describe their own genders as they redefine the traditional concepts of love and marriage.
That poses a challenge to policy markers and legislators. The question is not when the law will change but how far it will change. No matter when that may be, the mainstream will keep moving forward and all lovers and couples, no matter their gender, will continue to demand equal rights until they are treated equally.
Paritta Wangkiat is a Bangkok Post columnist.
Paritta Wangkiat is a Bangkok Post columnist.