Thailand poised to recognize ‘third gender’ in new constitution

Members of a commission charged with writing Thailand’s new constitution this week said they have proposed the inclusion of “third gender” people in its non-discrimination clause.

January 15, 2015 | by Michael K. Lavers

Members of a commission charged with writing Thailand’s new constitution this week said they have proposed the inclusion of “third gender” people in its non-discrimination clause.

Kamnoon Sittisamarn, a spokesperson for the Constitution Drafting Committee, a panel the Thai military created after scrapping the country’s previous constitution following last May’s coup, told Reuters on Thursday the provision would guarantee the protection of what the newswire described as “all sexual minorities.”

“We are putting the words ‘third gender’ in the constitution because Thai society has advanced,” Sittisamarn told Reuters. “There are not only men and women; we need to protect all sexes. We consider all sexes to be equal.”

The Nation, a Bangkok-based newspaper, on Wednesday reported the “third gender” provision would be the first time a Thai constitution would specifically acknowledge gender.

India, other Asian countries recognize ‘third gender’

The India Supreme Court in April 2014 issued a landmark ruling that recognizes trans people and hijras and eunuchs — groups who feature prominently in Hindu mythology and religious texts that do not identify as either male or female — as a “third gender.”

Nepal, Pakistan Bangladesh also recognize trans people as a third sex.

A Malaysian court last November struck down a law in the state of Negeri Sembilan that bans Muslim men from wearing women’s clothing in public. Lawmakers in the Philippines have faced renewed calls to approve an LGBT-inclusive anti-discrimination measure in response to the October death of a trans woman who was allegedly murdered by a U.S. Marine.

Thai LGBT rights advocates welcomed the proposed inclusion of “third gender” in their country’s new constitution.

“It would treat all citizens equally and help to protect from discrimination in all areas including ease of doing business and also personal life,” Natee Teerarojjanapongs, a prominent gay activist, told Reuters.

Midnight Poonkasetwattana, executive director of the Asia Pacific Coalition on Male Sexual Health, which is based in Bangkok, described the proposal to the Washington Blade as “good news.”

Doug Sanders, a retired Canadian law professor who has lived Bangkok for 12 years, pointed out he feels the proposed provision will face little resistance from Thai politicians and religious officials.

“Including ‘third sex’ in the constitution is unlikely to be polarizing on political party lines, and unlikely to be seen by the military government as breaking any taboo,” he told the Blade.

LGBT Thais lack legal protections

Bangkok, Pattaya and Phuket have large and visible LGBT communities.

The Thai Ministry of Health in 2002 announced that it no longer views homosexuality as a mental illness. LGBT people have been able to serve openly in the country’s military since 2005.

Thailand in 2016 will host the International Lesbian Gay Bisexual Trans and Intersex (ILGA) Association’s World Conference. Paiboon Varahapaitoon, commissioner of the National Human Rights Commission of Thailand, last October traveled to Mexico City to join Thai LGBT rights advocates who campaigned to hold the organization’s biennial gathering in Bangkok.

LGBT Thais lack basic legal protections in spite of their country’s reputation as one of Asia’s most tolerant countries.

Thailand’s hate crimes and anti-discrimination laws do not include sexual orientation or gender identity and expression.

Efforts to add LGBT-specific language to the country’s 2007 constitution failed, in part, because members of the committee the previous military government charged with drafting the document concluded it was unnecessary. They said the Thai word “phet,” which means “sex” and “gender,” encompasses sexual orientation.

A court later ruled officials in Chiang Mai Province violated the country’s constitution when it prevented kathoey — trans women or effeminate gay men who are often seen as members of the “third gender” in Thailand — from participating in government-organized parades and festivals.

Debate on a bill that seeks to extend marriage rights to same-sex couples in Thailand stalled last year after the coup.

Poonkasetwattana told the Blade during an interview at the 2014 ILGA World Conference in Mexico City last October that HIV rates among men who have sex with men and trans people are “still very appalling.”

He noted Thais are unable to legally change their gender on their identity cards. He told the Blade that police continue to target trans sex workers and use condoms as evidence against them.

“Culturally we’re very open,” said Poonkasetwattana. “In terms of the laws and enabling policies and supportive environments that doesn’t support it at all.”

The Constitution Drafting Committee is expected to formally present its recommendations to an advisory group — the National Reform Council that King Bhumibol Adulyadej has endorsed — in the coming months.