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SCL Nishimura, Bangkok
Thailand is commonly known as a place that is popular for its LGBTI community and a popular destination for LGBTI tourists from all around the world. Its society is very accepting of the community. Despite such acceptance and tolerance, there are few LGBTI-specific laws to safeguard the LGBTI community in general. The Thai Constitution and several Thai Acts refer to ‘equal’ rights to all Thai nationals, but no specific reference is made to the LGBTI community at large. However, despite the imbalance, the community is striving and its push for reform is progressing well.
Past decades saw many changes in the realms of human rights and the rights of individuals to express themselves, in particular, LGBTI rights. Europe saw many changes, from civil partnership to same-sex marriage. In some ways, LGBTI rights are less of an issue in Europe and in the United States. However, in Asia, we have much to catch up with on these issues.
Taiwan took the lead last year, when it took a huge step in passing the Marriage Equality Act, in May 2019. This was seen as a significant development and achievement as traditional cultures and traditions still dominate in this part of the world.
There is a very large LGBTI community within Asia. They can be described as both educated and progressive but, until now, it is only Taiwan that has adequate regulations in place to safeguard the LGBTI community’s interests.
Following Taiwan, Thailand took a baby step by introducing the Civil Partnership Bill, which is still in the parliamentary process. Although it is argued that the Bill does not give so many rights, it is however promising to see that there are some rights, compared to no rights at all. Something is better than nothing.
In Thailand, society is fairly accepting of LGBTI people, especially in Bangkok and the surrounding areas. This is evident across society, with businesses catering specifically for the LGBTI community; Parliament members who are openly transgender; and even champion boxers from the LGBTI community. In 2019’s major election, there was strong support for the LGBTI Parliament representatives. There is also a budget airline that encourages the transgender community to work as cabin crew. There appear to be very few issues in Thailand with the LGBTI community.
However, despite this acceptance towards the LGBTI community, there are still no specific laws that protect LGBTI rights in Thailand.
The Gender Equality Act BE 2558 2015 stipulates that ‘unfair gender discrimination in any act or omission of the act which causes division, discrimination or limitation of any right and benefit either directly or indirectly without justification due to the fact that the person is male or female, or of a different appearance from his/her own sex by birth’. This Act is intended to protect people, specifically LGBTI people, from discrimination, and sets out that such discrimination is punishable. However, there has been much criticism of this Act in that the government and public bodies have not promoted it enough. Consequently, there are still many incidences of discrimination that take place, merely because the LGBTI community have not actively been made aware of their rights.
In case of discrimination, one can rely under sections 4 and 27 of the Thai Constitution, which states that all persons are equal before the law, shall have rights and liberties, and be protected equally under the law. Although not commonly used, the Act can be argued to also be supportive towards the LGBTI community.
Under the Labour Protection Act 1998, all employees are to be treated equally. Going by this interpretation, there is some implicit form of protection for the LGBTI community, although said Act does not specifically mention the LGBTI community. Relying on this, there may potentially be a cause of action before a labour tribunal/court. That being said, thus far, there has not been any instance where an issue relating to unfair dismissal by reason of sexuality was brought before a labour tribunal or labour court. In spite of this, we are convinced there are regular situations of such manner arising but complaints are seldom made due to the LGBTI community’s lack of knowledge of their rights.
Technically, the Thai Labour Protection Act provides that all employees are to be treated equally; no reference is explicitly made to gender. By relying on this, there should be no difference in treatment for the LGBTI community.
Although, section 1448 of the Marriage Act currently defines ‘marriage’ as a legal union only between a man and a woman, this is contradictory with the Thai Constitution, which puts all Thai citizens on an equal platform.
In situations of discrimination, it is often hard to prove the incident occurred as employers would almost never state that promotions or hiring of staff is done based on the sexual orientation of a candidate. The common phrase used in such situation is ‘does not meet the job requirement’. There is also no evidence of candidates challenging the matter. Having said that, there are several LGBTI people working in the Thai Government; some of whom are in quite senior positions. Again, there are no statistics available to indicate discrimination based on their sexuality relating to promotion or hiring.
The Thai Labour Protection Act also provides provisions to stop sexual harassment in the workplace. Going by the basic principle in the Act that treats all employees equally, it can be argued that such provisions would also cover the LGBTI community.
With ever-growing awareness and the development of the subject matter in many Western countries, especially in Europe, it is becoming more common for work rules in organisations to cover harassment in general, which may extend towards the LGBTI community.
While waiting for the Thai Civil Partnership Act to come into force, the concerned parties would have to rely on wills and contracts when dealing with inheritance and distribution of property. In the Civil Partnership Bill, there are provisions that offer rights to same-sex couples on managing joint assets, liabilities and the ability to give or receive inheritances. However, it is unclear when this Bill will become an Act.
A question often arising in the case of disputes is, would a Thai court be willing to accept the rights of a LGBTI party? In such regard, in a recent case involving a Thai national and a deceased British national, the Thai national petitioned the court to appoint him as the administrator of the deceased’s estate. Despite the case being dismissed by the lower court, the appellate court reversed the judgment and granted the Petition.
It is interesting to note that the appellate court recognises the equal rights for same-sex couples without discrimination on the gender differences according to the principles of the Declaration of Human Rights, of which Thailand is a member.
Although this decision is not binding on future cases, it is still encouraging to note that the courts are showing signs of ‘acceptance’.
In the areas of immigration, there are no rights for the LGBTI community, so far. If a couple who are married or have entered into a civil partnership in Europe move to Bangkok for work, the ‘spouse’ travelling with the spouse, would not be granted a ‘dependent’ visa, as would be the case when a heterosexual couple moves to Thailand for work. This leaves the travelling spouse in considerable hardship as they are subject to strict immigration rules. Normal immigration rules allow a person entering the country to stay in the country between 30–90 days, with the necessary visa. This may put undue pressure on the relationship. The lack of proper immigration rules for the LGBTI community can also be seen as a major disadvantage for members of the LGBTI community outside Thailand who are interested in immigrating to Thailand for work.
In the absence of significant legislation protecting the LGBTI community, the pending Civil Partnership Bill is eagerly anticipated to become law. This would be the starting point for some form of protection towards the LGBTI community within Thailand. Hopefully, enactment of the Civil Partnership Act will trigger further legislative implementations that would further widen the scope of protection towards the LGBTI community in Thailand.
In general, the biggest hurdle in Asia is overcoming cultural barriers. Individuals in the LGBTI community are often comfortable with their identity within the workplace or with friends but not necessarily so with their parents and family. Acceptance of them by the family is still not there, and many have to live ‘in the closet’. This clearly hinders the development of LGBTI rights in general within Asia.
With the development of a more civilised society, there is considerable tolerance and acceptance but often there is not much legal backing. Hence, the LGBTI community remains quite vulnerable.
Thailand’s perspective is unique in terms of LGBTI rights. Despite there being no significant legislation aimed towards the LGBTI community, Thai society is very tolerant and accepting of them, and has been for quite some time. There is strong evidence to show that the LGBTI community is widely accepted in Thai society.
In the wider context of Asia, many countries are dictated by culture and customs that are not easy to put aside or bypass. Thus, it may take some time but there is still hope. To expect sweeping and significant changes across the whole of Asia is maybe a bit too ambitious, but we expect to see advancements within this area in some places, such as Thailand and Japan. However, due to certain religious backgrounds, some countries may find it harder to get any bills through Parliament on LGBTI rights in the short term.