Thailand’s new constitution may protect transgender people from discrimination—but not in the way that you think.
Jay Michaelson | STILL STIGMATIZED | 02.08.15
Thailand made headlines last month for proposing that its new constitution should prohibit discrimination on the basis of gender identity and gender expression. That would put the Southeast Asian nation ahead of 32 U.S. states and all but a few countries.
What does this mean? And why Thailand? The answers to these questions are easily misunderstood, because sexual orientation and gender identity (SOGI in international-policy-speak) mean different things in different cultural contexts. In this case, third-gender Thai people are both recognized and stigmatized. Traditional attitudes are both problem and solution.
First, this is a significant step forward. “This is a historic move in Thailand and a breakthrough for the Thai transgender community and Thai activists,” said Joe Wong of the Asia Pacific Transgender Network (APTN), a regional organization based in Bangkok.
And yet the widely-reported notion that Thailand is explicitly protecting “third gender” people is not quite accurate, according to activists.
Ajarn Ronnapoom, President of the Transgender Alliance (ThaiTGA), told The Daily Beast that while the 2007 constitution prohibits discrimination on the basis of sex, the new proposal would include sex and gender (phet) generally—not “third gender” specifically. However, a proposed annex would, for the first time, clarify that that “gender” includes all gender identities—not just male and female ones, but also those of phet thi sam, or third gender—and gender expressions, including those associated with homosexuality.
The nuances then got lost in translation. Just as “gay” is sometimes used as shorthand for LGBTQ people in the United States, “third gender” is shorthand in Thailand. Local media used the term, and international media copied it, misunderstanding the context.
That being said, the Thai proposal is well ahead of the Western norm, and it derives from longstanding South and Southeast Asian traditions, which predate the Western concept of “transgender” by thousands of years. India, for example, has the hijra, biologically male individuals who wear women’s clothes and often play special roles (sometimes welcome, sometimes not really) at weddings and other public rituals. Similar classes of people exist in Nepal, Pakistan, and Bangladesh.
In Thailand, the most common transgender-like category is the kathoey, who are individuals born biologically male, but who may take on female gender identity (i.e. conceive of themselves as female), gender expression (i.e., express/present themselves as female), or sexual characteristics (i.e. undergo gender confirmation/sexual reassignment surgery). The colloquial English translation of kathoey is “ladyboy.”
Ladyboys are ubiquitous in Thailand, although they work in disproportionately high numbers as entertainers and sex workers—not, say, doctors and lawyers. While there are a few pioneering kathoey politicians and activists, many people still regard kathoey less like respectable transgender people, and more like drag queens. (A film about an analogous situation in the Philippines, Out Run, was part of the Daily Beast’s Quorum program.)
And that’s the point. It’s not that Thailand, India, and Nepal have boned up on advanced gender theory and democratic politics. It’s that these roles and identities are part of the traditional cultures themselves —for better and for worse.
For better, trans* people do enjoy a degree of safety and public acceptance that can be mind-boggling to Americans. (The asterisk in “trans*” is especially helpful here, since many hijra, kathoey, etc., might not identity as—or even understand the meaning of – transgender or transsexual specifically.) In Thailand, there are estimated to be between 10,000 and 100,000 kathoey in a country with a population of 56 million. They are well-known actors, models, and movie stars. They walk openly on the streets. There are beauty pageants and cabarets. And Thailand leads the world in sexual-reassignment surgeries.
For worse, the kathoey identity is widely stigmatized. There’s a reason so many “ladyboys” do sex work—they are often excluded from ‘upper class’ professions, rejected by their families, and marginalized. Many Thai believe that being a kathoey is karmic retribution for bad deeds in a past life. Western discourses of medicalization have contributed to third-gender people being seen as sick or disordered. More broadly, Wong of the APTN told The Daily Beast, “transgender people still face daily challenges (use of public facilities, employment, school) largely due to not having legislation on gender recognition of transgender people.”
In in contrast to longstanding cultural mores regarding transgender women, “the movement for transmen is relatively new, as with the entire Asia region,” said Wong. “Most of the transmen I spoke with in Thailand told me the laws in here would never legally recognise their gender and many have resigned to it.”
And yet, that is what the current proposal would do. “With this constitution, it will provide protection to all transgender women and men since it does not imply Kathoeys only,” Wong told The Daily Beast.
Interestingly, in the United States, transgender equality has lagged behind that of the rights of gays and lesbians, but South and Southeast Asia is the opposite: the recognition of third-gender persons does not necessarily translate into pro-gay policies. India’s Supreme Court effectively recriminalized homosexuality in 2013. Thailand’s schools teach that homosexuality is a disease. Pressure to marry—but only heterosexually–in Thailand’s family-centric culture is intense.
For these reasons, Western media depiction of the recent anti-discrimination proposals have often been incorrect. Yes, this is a significant step forward for gender minorities in Thailand. But it is not an expansion of liberal rights to a newly identified class of people, as in the United States. Rather, it is the transformation of a traditional class of gender minority, from recognized and stigmatized, to newly understood and newly protected.
This is why some legal experts have said the quasi-constitutional provision has good odds of success. (According to Ronnapoom from ThaiTGA, the current proposal is “just the first step of constitution enactment;” and next goes to a national reform council for approval.) In America, many people still don’t believe transgender folks exist—not just backwoods legislators in Kentucky, mind you, but the entire Southern Baptist Convention, as well. These are people who believe that sex and gender are identical, and that we’re only talking about preferences and lifestyles.
In Thailand, everyone knows that kathoey exist. In big cities, they see them on the street every day. The question is whether they are citizens with equal rights, or people who are known, accepted, but also less than fully human.