Signs of Hope in Asia: Exploring Thailand’s Marriage Equality Act

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Thailand’s government achieved significant progress when it passed the Marriage Equality Act in September 2024, setting its enforcement date in January. While a majority of Thai citizens support same-sex marriage, previous attempts to legalize it failed to pass through the House of Representatives. Therefore, this Act marks a remarkable victory for gay rights in Thailand and in Southeast Asia, generally, by being the first country to legalize same-sex marriage in the region and the second country in all of Asia. Functionally, the Act legalizes same-sex marriage by amending the Civil and Commercial Code’s language on marriage from gendered, heteronormative terms like ‘husband’ and ‘wife’ with the neutral term  ‘spouse’. Practically, this change grants LGBTQ+ couples the right to get married and access the same legal rights as heterosexual couples. Given the significance of this legislation, it is imperative to explore the history behind the Act, assess its effectiveness, and consider additional policies that can improve its shortcomings. 

Background

To understand how the Marriage Equality Act came to be, one must first understand the 2015 Gender Equality Act. The 2015 Act was the first national legislation in the country that protected against discrimination on the grounds of gender expression. Before this Act, transgender Thai citizens often faced workplace discrimination, including missed promotions and termination based on gender identity. Additionally, a UN Development Programme report highlights more consequences, notating that, in Thailand, “[t]he inability to change their identity and name, coupled with societal transphobia, limits transgender individuals to employment in low-level jobs in entertainment, as store clerks, beauticians, waitresses, and in the sex industry”. With its passing, the Gender Equality Act provided an avenue to take legal action for those citizens facing workplace or public discrimination based on gender identity. However, the Act failed to be comprehensive since it allowed for exceptions on religious and national security grounds, concerns the UN Committee on the Elimination of Discrimination against Women (CEDAW) brought up. These exemptions showcase Thailand’s policy shortcomings despite its public attempts to improve the lives of LGBTQ+ citizens.

By 2020, Thailand started to explicitly promote itself as an LGBTQ+ friendly place to promote tourism among queer people. This was particularly evident in the Deputy Governor of Thailand’s Tourism Authority report to the local press, stating how she views LGBTQ+ members as a good market audience due to their income level, adding that she aims to welcome these tourists authentically.  One such attempt was the website “Go Thai. Be Free” the Tourism Authority of Thailand launched to specifically encourage LGBTQ+ members to visit. Alongside the launch of the website, Thailand even invited LGBTQ+ influencers to help promote Thailand as a vacation spot. These attempts have worked and have led many tourists to report feeling safe while visiting Thailand. Jer Jer, a Taiwanese YouTuber, mentions how Thai society recognizes LGBT communities in a positive manner, even going as far as to state that even in comparison to Taiwan which does have a legal mechanism to support LGBT, Thai society better recognizes the community.  

Despite its shortcomings at the time, the Thai government has recently attempted to legalize same-sex marriage, addressing one of the core issues its LGBTQ+ citizens face. In November 2021, Thailand’s Constitutional Court ruled that laws allowing only men and women to marry were constitutional, but also remarked that Thailand’s lawmakers should create laws to guarantee same-sex marriage. A year after the ruling, the Parliament debated amendments to the Constitution that would either legalize same-sex marriage or permit civil unions among same-sex couples, but those amendments failed to pass. The fate of these rights changed in August of 2023 with the election of the majority Pheu Thai Party in the Parliament. With a campaign promise to legalize same-sex marriage, their victory eventually led to the Marriage Equality Act, passing in the lower house in April 2024 Four hundred members voted for the Act, 10 against it, and five were absent. In June, the Act passed the Senate,  and it received monarchical approval from the King on September 24, enabling it to take effect in 120 days.

Given the unprecedented nature of the Marriage Equality Act, it is important to explore what exactly it accomplishes. The law legalizes same-sex marriage by amending Thailand’s Civil and Commercial Code—the country’s main body of provisions that deals with the legal rights of people, such as property rights, inheritance, and family law. The Act changes 68 provisions of the Code to include gender-neutral language. Thus, LGBTQ+ couples may now access the same legal benefits as heterosexual couples: inheritance, adoption, access to welfare, government benefits, and more. The Act also changes other parts of the Code, such as the minimum age to get married.

The Exclusivity of the Marriage Equality Act

While the Act makes substantial progress on legal rights for same-sex couples, gaps remain to make the protections fully inclusive for all LGBTQ+ communities. One such gap is the lack of proper protection for transgender people in Thailand: despite allowing same-sex marriage, uncertainty the Act is unclear whether it  protects all genders, outside male and female,  to get married. Emilie Palamy Pradichit, the founder of the Bangkok-based human rights organization Manushya Foundation, sums up the confusion: “It means only people of the same sex recognized as father or mother will be allowed to marry because it is a same-sex bill, not a true marriage equality bill. For example, if a transgender woman wants to marry a non-binary person, they won’t be able to. Thailand does not have a legal gender identity law—that’s a core issue.” As is made clear by her, the Act only achieves a victory for a portion of the LGBTQ+ population, not all of it. Therefore, to protect all LGBTQ+ citizens, Thailand must expand the law to include various gender identities.

Not only does the Act fail to properly protect all marriage rights, but it also fails to fully protect LGBTQ+ individuals' rights to start a family through adoption or surrogacy because of its restrictive language. It omits gender-neutral language in family law sections, retaining only “mother” and “father” instead of switching to “parents,” a change that would make the Act more inclusive of different gender identities, such as non-binary citizens. Currently, the language in the law makes it hard for trans couples, Ariya Milintapa shared. Because she adopted her younger brother as his “uncle”, she is his legal guardian. But because of the law, she has had a hard time registering him in school as schools demanded legal proof her and her husband were mother and father, language the current Code does not allow her to claim. However, for now, as  Nada Chaiyajit, a law lecturer at Mae Fah Luang University, points out, these excluded groups have a greater likelihood of experiencing discriminatory social consequences; for example, kids might be motivated to make fun of other kids’ parents for not being “real” parents. These shortcomings underscore the need for additional legislation to protect all LGBTQ+ communities in Thailand. 

How to Make the Marriage Equality Act Inclusive

Although the Act is a significant milestone for Thailand’s treatment of LGBTQ+ individuals, further actions by its government remain necessary. To protect transgender citizens, Thailand should adopt a policy akin to the Move Forward Party’s rejected proposal in February 2024, which would have allowed transgender and non-binary people to select legal titles that reflect their gender instead of their assigned sex at birth. While the proposal failed to pass due to concerns from the opposition that it would increase scamming and sexual assault, the government should nonetheless persist in advancing similar legislation to close gaps in legal protection for transgender citizens. Specifically, a legal gender identity law would secure transgender individuals’ rights to nondiscrimination in healthcare, education, and employment. 

A model example of this type of legislation can be found in Argentina. In 2012, the country passed a gender identity law that removed related barriers, such as requiring medical diagnoses and judges’ opinions for legal gender recognition. As of April 2023, 16,090 individuals in Argentina successfully applied for and received identity cards that reflect their gender. Furthermore, Argentina's law’s success might address Thailand’s opposing party's concerns about the Move Forward Party's rejected Act. Mariana Carbajal, a feminist Argentine journalist, explains that there have been no such cases of scams even 11 years after the law was passed. Additionally, Raquel Asensio, a lawyer and coordinator of gender issues at Argentina’s Public Defender’s office, provides a moral justification to legislation like Argentina’s: “The idea that someone is going to lie to take advantage is to ignore the lives of transgender people, who are still affected by discrimination and rights violations.”

Argentina’s law has since been praised due to its use of the ‘self-determination model’ mentioned earlier, which allows individuals to decide their own gender and legal documentation without a medical analysis or the approval of a judge. Argentina’s law significantly improved the lives of its trans citizens, with many of them reporting that it made them feel more comfortable using public services as they no longer had to be misgendered when seeking public services. Therefore, if Thailand wants to truly become a haven for LGBTQ+ tourists and its own queer community, a similar approach to Argentina’s would be essential for comprehensive protection.

Finally, to secure familial rights for trans and non-binary people, Thailand’s government should change the Code’s language of “mother” and “father” to “parents.” This simple switch sets the legal and social expectation that the country recognizes that parents can be of all different genders, and thus would help resolve discrimination issues. This constructive change was made in South Africa, with the Court adding the language “permanent life partner” to an Act, which successfully shifted and transformed the public image of the family from a heteronormative one to one focused on the care embedded in the family—irrespective of the gender of the involved individuals.  Considering South Africa’s success, Thailand should follow suit to lessen the social discrimination that rainbow families face.

Conclusion

The Marriage Equality Act is a pivotal step toward LGBTQ+ equality in Thailand and a strong message to Southeast Asia. Given that Thailand is the first country in the region to legalize same-sex marriage, and considering India’s recent ruling against same-sex marriage and Singapore’s restrictions on marriage definition challenges, the law serves as a revolutionary sign to the region. Moreover, the Act represents a victory for activists who have long advocated marriage equality. It may also signal future success for gender identity legislation. Finally, and quite interestingly, the Act could have economic benefits. Before the pandemic, even without legalizing same sex marriage, LGBTQ travel generated $6.5 billion. With the Act in place, that number is predicted to increase. However, despite the strength of the Act, continued efforts remain essential to ensure comprehensive protections for all LGBTQ+ citizens.

References

(To be published soon.)