What's next after same-sex marriage?
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What's next after same-sex marriage?

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Apiwat
Apiwat "Porsch" Apiwatsayree and Sappanyoo "Arm" Panatkool pose after a photo session to celebrate the marriage equality bill, which will make Thailand Asia's third territory to legalise same-sex unions, at Government House in Bangkok on Wednesday. (Photo: Reuters)

Jan 23, 2025 will be remembered as a historic day for both Thailand and Southeast Asia. As a result of the amendments to the Thai Civil and Commercial Code -- which will come into effect on that day, 120 days after it was royally endorsed in the final months of 2024 -- same-sex couples will be able to register their marriage, and enjoy the rights of spouses under the law, regardless of their gender, without discrimination.

Thailand will be the first country in Southeast Asia to recognise same-sex marriages. As such, it is a great cause for celebration, but it is also a time to reflect on what the next steps would be.

The amendment effectively removed binary wordings -- such as man-woman and husband -- in almost 70 sections of the Civil Code, replacing them with neutral terms, such as "persons" or "individuals" and "spouses".

As a result, all Thais have equal footing when it comes to marital matters, irrespective of their gender. This includes matters pertaining to engagement and marital relations, property ownership, dissolution of marriages and custody arrangements, adoptions and inheritance.

The amendment also raised the minimum age for marriage from 17 to 18.

Despite the changes, there are still questions which remain unanswered. For instance, does the law cover foreign same-sex couples who wish to register their marriage in Thailand? Does the law apply to the four southernmost provinces of Thailand, where matters pertaining to marriage and inheritance are governed by a different set of religious laws?

Will the amendment result in the removal of binary distinctions in other laws? If so, how many other laws have to be reformed to ensure all such distinctions are gone?

Some of these questions can be answered immediately. First, foreign couples, respective of their gender and nationality, will be able to register their marriage in Thailand.

However, each partner must be able to prove they are not currently married, as bigamy is illegal in Thailand -- with some exceptions in the four southernmost provinces of Thailand.

There will be residual binary categorisation, even after the recent reforms. Section 1453 of the amended code still stipulates that after a man dies (or after the dissolution of a marriage) the widow is not allowed to remarry until 310 days have passed.

This is to prevent paternity confusion with regards to any pregnancy that may be detected after the male spouse passes away and other related questions.

However, the woman can remarry if she is marrying the previous husband again; if she has already given birth; if there is evidence that she is not pregnant; or if there is a judicial order allowing the marriage.

The four southern provinces are exempted from applying the amended version of the code, as to avoid contradicting the Islamic civil laws which govern partnerships in the Muslim-majority region.

As for questions about how many laws still need to be amended, the answer is over 50 laws -- from citizenship to labour laws -- still have to be revised to remove binary distinctions and make them more gender-neutral.

Of these, two in particular need urgent attention, namely the law on surrogacy -- to respond to the demand from same-sex couples who wish to have children -- and rules on gender identification, to enable transgender individuals to have their chosen gender listed on official documents.

The Thai law on surrogacy, which is known as the Protection for Children Born through Assisted Reproductive Technologies (ART) Act, dates back from 2015. Since that year, commercial surrogacy has been banned, which means foreign couples are no longer legally allowed to enter into a contract with a Thai surrogate.

However, that law opened the door to "altruistic surrogacy", whereby for humanitarian considerations, asking another woman to be a surrogate to enable a child to be born therefrom is possible, subject to various conditions.

First, only Thai couples can enter into such arrangements, with some leeway given to couples with one Thai partner which have been married for at least three years.

Second, the egg and sperm must come from the couple, with this flexibility. The sperm from a donor can be used with the egg of the wife, and the egg from a donor can be used with the sperm of the husband. The egg of a surrogate cannot be used.

Third, the process must be carried out within the family; meaning the surrogate must be a blood relative of the couple seeking surrogacy, for instance, the sister of the wife. The surrogate cannot be the parents or children of that couple.

That said, as of now, only "traditional couples" (meaning, a husband-wife partnership) are allowed to enter into an altruistic surrogacy arrangement. As such, the time has come to reform the law and delete the binary classification to enable same-sex couples to seek the help of a surrogate.

Another law that needs to be amended is the law on gender identification, which is especially important for transgender individuals.

While sex is a biological condition assigned at birth, gender is a social construct that is not based on biology.

Some of the issues which need considering include the following: Does a person need to have a gender-affirming surgery before they can legally affirm their gender? If so, does the person need to go through a period of mandatory psychological counselling?

Does the person need a certificate from a psychiatrist which shows they have completed the required counselling? And what would be the minimum age for a person to be able to change their gender identity?

International trends provide some of the answers, although not everything is crystal clear. UN mechanisms advocate against coercive medical operation; and gender affirmation should not depend on such operation. Gender is a natural state of affairs and not a pathological condition!

Several countries, such as Argentina and Malta, do not require counselling or a psychologist's certificate for gender affirmation.

However, internationally there is still no agreement on the minimum age for a person to choose their preferred gender, as well as the related issue of access to medical assistance (such as hormone treatment and "puberty blockers"). The various draft laws in Thailand suggest 15-18 as the minimum age.

Whatever the decision, an inclusive approach, based on progressive, reasoned and constructive debate, inspired by the spirit of "humanity in diversity", is the preferred pathway.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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