Thailand Advances Groundbreaking Partnership Law Ahead of Taiwan

After Taiwan’s heartbreaking rejection of marriage equality in a referendum last November, the world’s attention has shifted to Thailand as another beacon for LGBT rights in Asia. The military government in Bangkok is considering a new civil partnerships law to be submitted to the Thai parliament and voted on in February.

The 2018 vote in Taiwan revealed public sentiment strongly against revising the existing Civil Code, which defines marriage between “male and female parties.” However, the Constitutional Court ruled in 2017 that this definition of marriage violates the constitution’s “guarantees of freedom of marriage under Article 22 and right to equality under Article 7.” Therefore, new legislation on LGBT marriage will likely be required to execute the court order by May 2019.

Thailand’s efforts are thus particularly instructive, as the Thai bill’s drafting committee intentionally created a separate marriage law for LGBT couples. Thai society also decided it was not ready to change the existing Civil & Commercial Code of Thailand in which marriage is defined. Instead, experts have proposed a new law to legalize partnerships between LGBT persons. This separate legal framework is not limited to same-sex couples—it is for any person not covered by the old code. It also grants several rights not currently enumerated for heterosexual couples.

Akawat Laowonsiri, a lecturer in law at the Faculty of Law, Thammasat University is part of the Working Group of Legal Experts who crafted this novel Life Partnership Registration Act. He was assigned by the Thai Ministry of Justice and the United Nations Development Programme (UNDP) to help draft this law; and as he is concurrently a PhD scholar in Germany, he was able to compare the German model with those from California, France, and nearly a dozen other legal systems, to inform Thailand’s new partnerships law.

In this interview, Laowonsiri discusses what the law means, its impact on LGBT persons in Thailand and abroad, and prospects for its passage this year.

This conversation has been edited for length and clarity.

Why are you pursuing legal remedies to address the status of LGBT persons in Thailand?

On the surface, Thailand is very friendly to LGBT people, but that is just the popular perception. It only appears to be LGBT friendly, whereas the everyday reality can be quite different. Gay people still cannot marry, and their rights can still be violated—so we must look to the law to address these issues, in both public and private matters.

In private contractual relationships, such as those between individuals, or between individuals and companies, only heterosexual married couples can be beneficiaries under current law. For example, companies may give benefits to people who are legally married, such as obtaining medical insurance for one’s partner; or if your marriage is legally registered with the government and you have kids, you can take maternity leave. But for LGBT people without the ability to legally register their marriage, companies do not accept their relationship, so they have no access to these benefits. In the public sphere, there are so many government agencies that enforce the law in ways that impact LGBT people—taxation, social welfare, nationality. To ensure LGBT people’s rights, we need to establish mechanisms that the public sector can enforce.

What are the key elements of the law being proposed?

There are two key elements—the provisions of the law [i.e. the rights it enumerates] and the mechanisms by which the law is executed. The goal of this legislation is to protect the rights of people of alternative genders, especially with regard to family law, and also other rights, such as employment rights and access to welfare. The goal is equal protection—so Thais may (1) establish a family, and then (2) have equal protection once their family is established.

Legally speaking, in Thailand, you need to register your family with the state for it to count. In other countries, there are common law families, but we are a civil law country, so you need government registration to make a marriage legal. It is the same registration process you would go through to establish a family if you were in a heterosexual couple. You would go to the district office, apply with witnesses present, and then declare officially that you would like to register a family.

What are some of the rights for couples that are protected under this law?

The law is intended to protect all legal aspects of life that a couple might confront. For example, taxation, employment benefits, eligibility for Thai nationality, among many others. Not all of the rights we have proposed will be adopted by the next committee that will review the draft law, but we hope most of them are accepted. Furthermore, public authorities will eventually have to enforce these rights, and they may not agree with all these provisions. If the law passes, they would be obliged to follow it, but we cannot guarantee enforcement of LGBT rights will be effective. But the first step, of course, is to set down these rights in the law.

The law specifically avoids the term “same-sex couples.” Why is that?

We do not define participants under the Life Partnership Registration Act as “same-sex couples” because when Germany did this, it actually became a problem. Only gay couples [two males] or lesbian couples [two females] could register. But when Germany later accepted the idea of intersex persons, and couples with an intersex individual wanted to set up a family, they could not. [Editor’s Note: Even more recently, Germany also legally accepted “third gender” persons who self-identify in this category as well.

For the law in Thailand, we simply define a new category of persons—all those who are “not able to register according to the Civil and Commercial Code of Thailand” because of their sex. All people who are excluded from the existing law can now register under this new law. This is a legal innovation, as Thailand is the first country to propose this definition. Biologists note there are many genders, and so what is significant is that this law is very flexible and open—for example, if future scientists or societies determine there are more than three genders. Anyone who cannot register under existing laws can register under this one.

What is the current status of the marriage law proposal?

There are many steps in the process, which began in 2017. I serve on the Working Group of Legal Experts, a committee that is involved early in the process. I was assigned by UNDP and the Thai Ministry of Justice to draft this legislation, many parts of which are based on the German model. In our proposal, we drafted 98 articles of legislation. These 98 articles have since been submitted to another committee to review, which might possibly reduce it to, say, 70 articles. The actual provisions will remain confidential until they reveal the law during a public conference. Afterward, the law will go to the Council of State, which reviews draft legislation—all legislation in Thailand has pass through this body. Finally, it will go to the Thai Parliament, where a majority vote will pass the law. There is no set timeline, but we expect it will be enacted sometime next year.

People of different ages also have different perspectives on LGBT rights. One study I’ve seen for Thailand categorized people using age divisions such “Silent Generation” “Baby Boomers” “Generation X”, Generation Y and Generation Z—similar to the classification used in the United States. Older people are very skeptical about LGBT people and the formation of LGBT families—and they are currently the ones in the Thai parliament and the Council of State. In contrast, Generation Y and Z are much more friendly and generous toward LGBT people, but they are not in power. But if this draft law gets through the Council of State, we do expect the Thai parliament to eventually pass it.

Who else serves on the Working Group of Legal Experts?

The group includes mainly officials from the Ministry of Justice and those invited by the Ministry of Justice (which might include scholars and NGO workers). There are around 30 people on the Working Group to draft the Life Partnership Registration Act. We then pass the legislation on to the Committee Reviewing the Draft Life Partnership Registration Act. That group probably includes officers in the public sector, and possibly some NGOs, but their work is much more confidential. They will decide what gets passed on to the government and then eventually debated in parliament. Remember, there are no parliamentarians involved at the committee stage.

One of the frustrating things about legislating new laws in Thailand is that legal experts can do a lot of work to create the best law in the world—in the case of LGBT partnership rights, we picked the very best things from Europe, Latin America, and the United States to guide our legislation—but the next committee in the review process can still deconstruct it. They can remove parts of the proposed laws, and we would have no idea why. No one has to publicly explain why the proposed laws are suddenly changed. Sometimes no justification is given, even behind closed doors!

The law is for civil partnerships, or a “different” class of marriage. Why did you choose this method? Why did you not ask for existing marriage to be changed to include LGBT people, which is oftentimes the favored approach for ensuring equality?

The people who make decisions and who launched the process of drafting thought that Thailand was not ready to have a system like France or Germany that includes LGBT people in the Civil and Commercial Code. They decided that Thailand should have a separate system for gay partnerships.

However, including LGBT people in the Civil & Commercial Code—which seems to be a natural step forward—might not even protect them adequately. This is because the Civil & Commercial Code was drafted one hundred years ago. Since then, the world has made a lot of progress on human rights principles, rules, and treaties—all of those have implications for family relationships. The existing, century-old law cannot always help people who are stuck in abusive marriage arrangements.

One example is economic abuse in family relationships. Oftentimes in heterosexual couples, one partner has access to a bank account on the internet. The man’s name is registered for the house, for the car, for everything. That kind of contractual arrangement is abusive. If you rely on the old Civil and Commercial Code—which heterosexuals couples must—it cannot counter this abuse effectively. A new legal framework would be needed to give public authorities the power to act on these abuses.

But now that we have been assigned by UNDP to think about LGBT marriage and draft a new law, we want to establish a system of marriage that is even better than the heterosexual law. Then heterosexual people can look to the LGBT system to solve some of those problems that exist with their own marriage laws.

What if people say that having two types of marriage still means unequal treatment for LGBT people?

If our proposals go through, then LGBT people will be protected better than heterosexual people. It’s an experiment, and it could be an inspiration for heterosexuals, too. Thailand might even change the Civil & Commercial Code in the future to account for these new protections for people who enter a marriage. I do not think it is bad to give more benefits to LGBT people than heterosexual people through this framework. In the long run, it is going to be good for everyone—an inspiration for all countries in the world.

That said, many provisions in the original version crafted through UNDP may be cropped out in the version that goes through government, which means LGBT people will not gain all the rights we hope they will gain. But in any case, with the proposed UNDP draft law, we are making it open source, so even if Thailand does not adopt it, then anyone else can adopt it

It is particularly useful for civil law jurisdictions that wish to improve families and partnerships. For example, provisions in our draft law that remedy economic abuse in an LGBT family can be borrowed and applied to heterosexual families, through the method of “legal analogy.” Other types of legal jurisdictions may also find the draft law useful for reference.

What should we look for as the next steps that will happen to make the law a reality?

The government announces the law on the Ministry of Justice website, and then people or organizations who want to participate in a public hearing about the law will register. The process for joining in these hearings is not especially transparent.

At a public hearing for this law in Hat Yai, I was actually confronted by Muslim extremists who wanted the government to cancel the legislation. Alternatively, they suggested this legislation should not apply to Muslims in Thailand.

After the public hearing period, the law will then be revised, and eventually passed on to the Thai parliament for a vote, sometime later this year.

Why do you think the government is promoting the measure at this time?

There is currently a lot condemnation of the military government. People generally think that the military has a poor record on human rights. This is the regime’s argument that they can do good things for the Thai people. Maybe it could be considered propaganda? But they want to show to the people they can do good things, even on human rights.

The movement for LGBT rights in Thailand was active 20 years ago, but went dormant. Now that the military government is in place—and perhaps this is surprising—it has played a significant role to move the discussion forward again. It has motivated people to come together and work on the issue.

The military’s expertise is not the law, so when they want to do something about the country’s laws, they actually assign the task to civilians. They know which civilians and public officials should be involved on legal issues, and these are the ones who have influence, as the military government would defer to them in writing (or re-writing) laws. The military government directed the Ministry of Justice to drive forward this project. The ministry was interested in the issue before, but the process was very slow. Many years ago, there was draft legislation that went through the process but failed. This time, it is moving very fast.

If the law is passed, what other steps for equality do you look forward to pursuing next?

There are so many things. I am concerned about role of the public authorities and the government’s administrative organs. They each have their own laws, codes, and practices, and there are many conservative people in those bodies. We have to change their mindsets and help them learn why they should protect LGBT people. Training would help, but the media should also bring attention to any abuses or failures to follow the new law. We need the government enforce the law appropriately to protect LGBT people’s rights

We also need to influence the public to treat LGBT people with respect and kindness. If this law is enacted, then LGBT people will be able to adopt kids. But what if their children are bullied? In this case, it’s not just about the law—you also have to shift perspectives, educate people, and change society so that we don’t mistreat LGBT people.

Will LGBT people be happy with this new law? What do you think is the most important outcome by having this law?

I believe LGBT people will be happy to have a law, though they might not be satisfied with how the law is eventually enforced. Problems of interpretation may also arise, for example, when the law interacts with other legislation that is supervised by other authorities. And the law itself might not be complete, since many provisions that we wanted to include were rejected, or may be stripped away in the legislative process. But at the end of the day, we get something.

The most important point is that this effort is about legal innovation. The new framework for partnerships is something we are trying to make happen in Thailand. We tried to make it the best that we can, to be a model that other countries can follow. I don’t think it will be completely successful—some things will pass, but some things will be rejected. However, simply in coming up with a draft law, we are also giving the world all the research we have done for our country. If Thailand does not pass this law, we encourage other countries to please take it on.