Thailand: LGBT Activists Fight for Constitutional Protection

BACKGROUND:

In September 2006, the Thai military organized a coup against the government, suspended parliament and annulled the 1997 Constitution. Despite protests and condemnation of the coup and the military-led interim government, the process of drafting a new constitution got underway. A military-appointed Constitutional Drafting Committee (CDC) drafted the new constitution. In June 2007, a 100-member Constitution Drafting Assembly (CDA) debated and voted on the each clause of the draft. At the end of July/August 2007, the finalized draft will go before a national referendum.

Anjana Suvarnananda is a longtime Thai LGBT rights activist and founder of Anjaree Foundation, originally formed as a Thai group for women loving women and presently focusing on sexual rights. In 1998, Anjaree helped lift the ban on LGBT people appearing on television. In 2002, the group succeeded in getting the Thai Ministry of Health to publicly declare that homosexuality is not a mental illness. Between November 2006 and June 2007, Anjaree and other LGBT groups lobbied members of the CDC and CDA to ensure that the Constitution would include protections for LGBT people in Thailand.

IGLHRC wrote to the chair of the CDA in support of Anjaree and other Thai LGBT activists, urging members of the Assembly to provide constitutional protection for people experiencing discrimination on the basis of their sexual orientation, gender identity and gender expression.

Ms. Suvarnananda talks about the struggle and the outcome.
Grace Poore: My understanding is that the CDA voted against inclusion of LGBT rights in the Equality Clause of the Constitution.

Grace Poore: My understanding is that the CDA voted against inclusion of LGBT rights in the Equality Clause of the Constitution.

Anjana Suvarnananda: On the very first day of the debate, June 11, the Assembly spent 2.5 hours debating Section 30 and whether LGBT rights should be protected in two different places in the draft constitution. One was whether the clause, men, women and people of diverse sexualities shall enjoy equal rights should include “diverse sexualities,” which is a Thai term coined by the LGBT movement in the last few years. Two was whether the clause, forbids discrimination based on various aspects/categories, including sexual diversities should retain “sexual diversities” as a protected category. The Assembly also debated on the appropriate terms to be used for LGBT people, sexual orientation and gender identity. The fact that we do not have neutral words in the official Thai language was used by some Assembly members to sideline the importance of extending the equality and protection against discrimination for LGBT people. Other Assembly members said the word “sexual diversities” is not precise enough and is confusing. One Assemblyman said, “Protecting these people will make Thai society weak.” On the other side, many Assembly men and women argued for the position of the World Health Organization that homosexuality is not a mental-illness and referred to the Yogyakarta Principles as a vision for Thai society. There was strong sentiment during the debate and many people agreed on the principle of non-discrimination whoever you are, LGBT or straight. But when the question was asked, “What are the legal and social ramifications of including protection for this group of people?” no one chose to answer. In the end, 54 voted against the proposal to include LGBT, 23 voted to change the draft of the CDC and include LGBT rights, 2 abstained.

GP: So when people opposed the motion, were they agreeing to endorse discrimination against LGBT people?

Anjana: I suspect many Assembly members were confused about what voting to agree or disagree meant. Voting “agree” actually meant they agreed with the original draft by the CDC, which did not include protection for LGBT. I wonder how many CDA members voted opposite from what they really meant!

GP: What are some of the words in Thai language for sexual orientation, gender identity, gender expression?

Anjana: We are in the process of developing the terminology and a new analytical understanding of sexuality, sexual orientation and gender identity. Thai academics are trying to come up with words and neither they nor the LGBT community have arrived at a common set of words. The modern Thai word for homosexuality was coined 30 years or so ago by psychologists who followed the western psychological explanation of sexuality and divided people into heterosexual, homosexual, and bisexual. The word for homosexual became “rak-ruam-pet” which means same sex love. The word for heterosexual is “rak-tang-pet.” The word for transgender, “katoey,” already existed from much earlier, in the traditional Thai language. It’s colloquial and not considered an official word. “Katoey” is used to put transgender people down but it’s also a word that’s well understood because it’s been in our language for a long time. What this shows is that Thai society recognizes the existence of transgender even if transgender people are considered inferior. “Katoey” is also used for gay men who are overtly effeminate. A simplistic explanation of the Thai concept of gender and sexuality is that if you have a same sex relationship, you are not fulfilling your gender role, which is why “katoey” is used for overtly effeminate men because they are perceived as not fulfilling their gender role as men.

GP: Is katoey also used for butch lesbians?

AS: The word is mostly for gay men who are camp, not butch lesbians. Women don’t draw attention to themselves if they are very masculine because they can get treated badly. So this word is used more for MTF not FTM.

GP: Do you think the confusion around language became an excuse to vote against the motion to include LGBT as a protected category in the Constitution?

Anjana: Definitely! In the previous Constitution of 10 years ago, the word “pet” is mentioned in the Equality Clause. It means many things -- biological sex, sexual acts, sexuality, and also gender. But the word has been interpreted as biological sex of men and women. This time, there were a lot of questions about the word, “sexual diversities.” It shows how strong the assumption is that there is only one type of sexuality, which is heterosexuality.

GP: Subsequently on July 1, another debate took place in the Assembly. This time many more members (60 out of 100) agreed to protect the rights of LGBT people because their own colleagues within the Assembly lobbied them. But what appeared to be a victory at first turned out to be a defeat. Apparently, there were complaints by some members that since the Assembly already voted on this issue, they could not bring it back to the Asembly for debate. Meaning the issue was dead on the floor. Was anything different in the proposal the 2nd time around? Why were there more members willing to support it?

Anjana: Second time around, a newly-coined word was used, “attalaktangpet” which means, “sexual identity.” Attalak is a Sanskrit word used in Thai language but not many people understand it.

GP: It must be heart-breaking to have such a critical decision founder over language issues.

AS: It was a very tight race and the 2nd time it was really heart-breaking because we were close and we thought we’d won. But the good thing is that those Assembly members who lobbied in the Assembly for LGBT protections were very engaged in the debate and they were very committed. They showed they really cared. And the debate was televised nationally so millions of people saw the debate on TV. But the Constitution still has to go through a national referendum. There is a chance that it won’t pass. But we are not sure yet what the government and the Council for National Security, which is the military body, will do. We may have to draft another constitution in a few years. Then we will have another chance to get LGBT rights into the Constitution.

GP: What kind of alliances are there between LGBT and non LGBT for the rights of the LGBT community in Thailand?

AS: The Progressives are boycotting the constitutional process on principle. They don’t support the drafting of the new constitution because the process was set up by the military, which staged a coup in 2006. The military tore up our old constitution from 1997. The Progressives also don’t agree that it was the military that chose whom to be in the Assembly and who would draft the constitution. So LGBT groups had to push for our own rights during the constitutional process. Progressives mostly work on economic justice and social justice. They have not seen sexuality as part of the movement. They don’t take up some of the women’s issues, or child rights or LGBT issues. Most of them fight for community rights and want to put forward the image that everyone is united, without internal tension and division. Since these issues are not articulated by the mainstream progressive movement, they have to be raised by specific groups like LGBT groups or child rights groups or women’s rights groups. On the other hand, the LGBT community does not see itself as part of a broader social justice movement. Many LGBT don’t connect their issues with other forms of oppression. For example, there’s a national security bill being drafted. It will give more power to the military. The Progressives are mobilizing people to stop the bill and I don’t see LGBT groups there. Some individual Progressives do care about LGBT issues but the movement as a whole does not pull LGBT community in, so we stay separated on how we approach our struggles and there is not enough dialogue between the groups. LGBT groups are also under-resourced and there is no capacity to work with other groups and be part of the broader movement. For instance, there are only one or two people working as employees of an LGBT organization and they could not leave the office to join the actions for justice that were taking place every day. Also, very few LGBT people dare to be out at that level where they feel they can speak up in a large public forum or to the media.

GP: Is the homophobia in Thai society driven by religion or culture or something else? What was behind the opposition to including LGBT protections in the Assembly debate?

AS: Legislators are no different from the general public. They are not informed enough. I can’t get behind the minds of people who oppose our rights. I don’t understand why they are against LGBT. Some Assembly members took pity on Transgender but at different points of the debate, it was not clear if they were talking about gay-lesbian or transgender. There was language confusion. If you look at the English language, many words have been developed only recently, for example, gender expression. We haven’t got there yet.

GP: Fundamentalist Christianity, Catholicism, and Islam tends to drive the opposition to LGBT rights and inclusion in many countries. What role does religious homophobia play in Thailand?

AS: Religion is not an important barrier here. The way Buddhism deals with sexuality is different. Everyone is supposed to be humble about their sexuality and to control their own sexual drives. This idea gets imposed on women more strongly, I think. Islam and Christianity seem to promote a particular type of sexuality. In Buddhism, there’s no promoting of procreation and no Adam and Eve stories. We talk more about the cycle of life and death. We don’t target women’s procreation as much. Abortion is an issue because it’s considered killing of life and not so much about controlling women’s procreation. Not to say Buddhism is not prejudiced because although there’s no singling out of one sexuality over another, there’s the underlying assumption that what is normal is heterosexual. We also think people are born in this life as a result of what they did in their last life and that being human is a higher form of being than a dog or an ant. Women are considered a lower form of life in relation to men. And some people think that LGBT is a lower form of life. They believe that those who are born LGBT in this life must have done bad things in their last life. Another group of people think that because of social injustices, it’s a very hard to be LGBT and they have a sad life. They believe that if you are LGBT it must be punishment for doing something bad in the past life.

GP: What would having Constitutional protection mean on a day to day basis for the LGBT community? And how would these protections get translated into a culture of acceptance?

AS: The recognition of equal rights of LGBT in the Constitution will immediately send a message to the public, the government and the media that we are as much humans as any other Thais. But for real legal protection, we would have to work on identifying and changing different law and practices that discriminate against LGBT people. We would have to use what’s written in the Constitution to challenge these laws. For example, we don’t have an anti-discrimination bill that will protect us from discrimination in jobs, education and social benefits. You can see there are no transgender people as bankers, there are very few women as bankers and very few effeminate gay men as bankers. Transgender people may be visible in society but they can only be makeup artists, hairdressers, cabaret showgirls and waitresses. Transgender people with high education can’t get a professional job. Laws relating to giving benefits to same sex couples, ID cards with titles like Mr or Ms, all these will have to be changed.

GP: What other steps are you taking besides seeking constitutional protection? What are some of the other struggles?

AS: Anjaree group started out working on LGBT rights but now we are working within the framework of sexual rights for everyone with a deep understanding of the double and triple oppression that LGBT in Thai society face. We are planning to propose the drafting of the anti-discrimination bill based on Section 30 of the Constitution and to ensure that the bill includes LGBT as a protected group. Last year, a network of LGBT groups under the name of Network for Sexual Diversities began working on the case of a transgender (MTF) woman who went through the conscription process. She was given an exemption paper saying, she is “permanently mentally ill.” All Thai men are conscripted into the military and need to show their conscription papers when they apply for a job. Because her paper said, permanently mentally ill, she could not get an apprenticeship during her third year in university. We helped file a grievance report to the national Human Rights Commission and negotiated with the Ministry of Defense on changing the documentation for this trans woman. The Ministry said they were not authorized to change the clause without court permission. The lawyers took it to court and the court has decided there are sufficient grounds to hear this case. If we win, this will set a precedent and the military will have to remove the clause, “permanently mentally ill” as the reason for giving an exemption. It will open thousands of new doors of employment for trans women. It will dramatically change their life for the better.

GP: Looking ahead to 2008, anything we need to know?

AS: We would like to develop a study on discriminatory laws and their impact on our lives and use the study results for our advocacy work. We are organizing an academic conference on sexuality and sexual rights in the first week of January 2008 just before the International Thai Studies Conference in Bangkok. ILGA will organize its Asia regional meeting in Chiangmai in 2008 and the impact will propel the activism for LGBT rights which has been growing in strength these past few years in Thailand.


IGLHRC wrote to the Chair of the Constitutional Draft Assembly to express support for the Thai LGBT community’s efforts to get recognition and protection under the Constitution. Anjaree is using the letter as part of its public seminars to address myths and misunderstanding concerning LGBT, encourage Assembly members to continue supporting the LGBT community, and to educate the media.
International Gay and Lesbian Human Rights Commission
80 Maiden Lane, Suite 1505, New York, NY 10038
T: 212.268.8040 • F: 212.430.6060
Email: iglhrc@iglhrc.org • Website: www.iglhrc.org

June 10, 2007

Chairperson, Constitution Drafting Assembly
Thai Parliament Building
2 Uthong Nai Road, Dusit District, Bangkok 10300

Dear Chairperson,

The International Gay and Lesbian Human Rights Commission (IGLHRC) is dismayed to hear that the Constitution Drafting Committee (CDC) has dropped protection of the rights of lesbians, gays, bisexuals and transgender (LGBT) people from the Equality Clause (Section 30) in the second draft of the Constitution.

Thailand is not alone in its efforts to safeguard the rights of people of all sexual diversities. There is
precedent around the world to adopt non-discrimination provisions in the Constitution so that LGBT people can enjoy equal rights.

The United Nations Human Rights Committee affirmed in its decision in Toonen v. Australia (1994) that existing protections against discrimination in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) should be understood to include sexual orientation as a protected status. Ecuador, Fiji, Portugal, South Africa, Sweden, Switzerland and some states in Brazil and Germany include sexual orientation as a protected category in the constitution.

Forty-nine countries including South Korea, Taiwan and Japan prohibit discrimination based on sexual orientation in employment; 39 countries including the previously mentioned Asian countries protect the rights of sexual minorities in areas other than employment; 16 countries including China and Japan have laws that recognize the changed gender of transsexuals who have undergone gender reassignment surgery; and Belgium, Canada, Netherlands and Spain have legalized same-sex marriage.

IGLHRC urges all members of the Constitution Drafting Assembly (CDA) to vote for the inclusion of sexual orientation, gender identity and gender expression as protected categories in your Constitution. Without this protection there is no equality for LGBT people. They continue to be forced to live as second-class citizens, under the constant pressure of secrecy and lies, job discrimination and family rejection because of societal condemnation.

Thailand must join the long list of countries trying to change the climate of intolerance against some of its most vulnerable citizens. Vote to include the clause that has been introduced by the National Legislative Assemblyman, Mr. Sawing Tan-oot who has called for protection of LGBT rights in the Constitution.

Sincerely,

Paula Ettelbrick,
Paula Ettelbrick
Executive Director
pettelbrick@iglhrc.org