The Nation April 28, 2013 1:00 am
Lesbians, gays and others seek equal treatment under the law, not special favours and condescension
The recent move by the Parliamentary Commission on Law, Justice and Human Rights to legalise same-sex relationships came as a pleasant surprise to the local community of lesbians, gays, bisexuals, transgenders and intersex persons (LGBTIs). Three leading LGBTI activists were duly invited to sit on the working group established by the commission to prepare a draft.
However, the celebratory mood quickly evaporated when the voices of these representatives were heard but went largely unheeded. Indeed, the resulting bill provides cause for concerns. The exclusion of rights in regards to children - even biological ones from a previous marriage - deprives LGBTIs of opportunities to found a family. Worse, a "homosexuality test" was repeatedly mentioned as precondition for relationship registration under this law.
When LGBTI activists expressed their reservations at last week's public hearing, the bill's promoters told them they should feel lucky for not having been born Afghan or Iranian LGBTIs, to be thankful for the "favour" and stop being greedy. These shocking words reveal the prevalent cultural attitude regarding LGBTIs not as equals, but as pitiable inferiors - like beggars obliged to feel grateful for every mercy tossed into their bowls.
The bill's pushers should consult the Universal Declaration on Human Rights, which recognises inherent human dignity and equal, inalienable rights in all human beings. In other words, human rights are not a special favour or charity project. What lawmakers and governments must do is affirm these rights and removing the obstacles to their realisation.
Article 30 of our Constitution also prohibits discrimination on the basis of gender, which, its official statement of intention explicitly clarifies, refers not only to physical differences between males and females but also includes gender, sexual orientation and gender identity. This renders the Civil Code's chapter on marriage unconstitutional, not only for excluding same-sex couples but also for its prescribed inequality between husband and wife.
Without political will and interest to amend the outdated code, however, Thai lawmakers could have followed international good practices by enacting a new gender-neutral civil union law. Instead, they chose to write one specifically for two persons of the same gender - allegedly as a "favour" to LGBTIs. (None of the fourteen marriage-equality countries did this. South Africa enacted a new gender-neutral marriage law to augment its old ones. All remaining countries amended their marriage laws to remove gendered language.)
Separate is never equal; it has been proven time and again. This ill-conceived bill, if it becomes law, will be unconstitutional by formalising the segregation of LGBTIs. It can also be challenged for reverse discrimination by opposite-sex couples who may want to use it out of uneasiness with gender inequality in traditional marriage.
Besides the constitutionality issue, the bill's attempt to confine people in neat sex and gender boxes is problematic for transgenders and intersex persons. Writing sex and gender into law with no good reasons is an obstacle to future legal developments to guarantee equality and non-discrimination on the basis of gender.
By telling LGBTIs to be thankful for their lot, the bill's pushers reveal their view of LGBTI rights as "special rights" - to be given or withheld at will. This is exactly how hostile countries attack the rights of LGBTI, who they believe to be less than human and undeserving of any rights.
By telling LGBTIs to consider themselves lucky not having been born Afghans or Iranians, the bill's promoters unwittingly show how they are, in fact, identical to the very homophobes they feel superior to. All they can congratulate themselves on is having found a way to discriminate in the guise of human rights promotion and protection.