Thai lesbian couple petition court, say marriage law is unconstitutional

According to Thai activists, disallowing same-sex couples from marrying under the conventional law has important legal implications.
According to Thai activists, disallowing same-sex couples from marrying under the conventional law has important legal implications.PHOTO: REUTERS

BANGKOK - A lesbian couple in Thailand have filed a petition to the Constitutional Court, arguing that allowing marriage only between a man and a woman contravenes the basic law in the Kingdom.

The petition submitted on Friday (Nov 22) was drafted with assistance from the Foundation for SOGI Rights and Justice (FOR-SOGI), which hopes that the judges would help drive changes in the marriage law. SOGI stands for sexual orientation and gender identity.

“The Thai Constitution guarantees our birth rights of having a family and descendants. It also protects us citizens against discrimination of all kinds, including gender,” FOR-SOGI’s adviser Naiyana Supapung told The Straits Times.

“In the existing marriage registration form, your partner has to be a different sex from you. Otherwise, officials will not take your application. That is obviously unconstitutional.”

According to FOR-SOGI, disallowing same-sex couples from marrying under the conventional law has important legal implications: They cannot use their spouses’ welfare rights to receive medical treatments, do not benefit from life insurance payouts, and also cannot file criminal complaints on behalf of their spouses should the latter be killed or harmed.

The petition details the case of Ms Permsup Sae-ung, 49, and Ms Puangpet Hengkum, 34, who were rejected by officials in May this year when they tried to register their marriage.

Thailand has actually taken some tentative steps to address the issue, in the form of a draft civil partnership Bill which the Cabinet approved in principle in December last year.

The draft legislation, if passed, will give same-sex couples the right to jointly own property, to inherit property from each other, and to make medical decisions for each other in case of emergencies. 

 
 

While the legislation did not make it to parliament before the March 24 election, Thailand’s bureaucracy has continued work on it in background.

The Council of State – the government’s legal advisory body – is still deliberating on the Bill after the Ministry of Justice collected feedback through public consultation earlier this year.

According to Ms Nareeluc Pairchaiyapoom, director of international human rights law division at the ministry, the Bill may be modified to include adoption rights. 

It is not clear when the final version would be submitted to the new Cabinet and parliament for approval.

Opinion within the lesbian, gay, bisexual and transgender (LBGT) community in Thailand has been divided. While some see the Bill as a stepping stone for more progress in the still largely conservative Buddhist country, others argue that having a separate law for same-sex marriage actually lays the foundation for long-term discrimination against same-sex couples.

The most recent version of the Bill does not accord same-sex couples the right to their partners’ pensions or income tax benefits, unlike heterosexual married couples. It also does not address the right to adopt children, or to have children through surrogacy arrangements.

Meanwhile, the March election produced Thailand’s first ever openly LGBT members of parliament, all four of them from the opposition Future Forward Party.

Two of them, Ms Nateepat Kunsetthasit and Ms Tanwarin Sukkhapisit, proposed setting up a House of Representatives committee on gender diversity. In August, this motion was voted down 365 to 101 in the 500-seat House.

Ms Naiyana, FOR-SOGI’s adviser, argues that it would be foolhardy to pin all hopes on the draft legislation. “It’s still a distance from reality. It hasn’t even reached the (new) Cabinet, not to mention the parliament.”

Instead, she draws hope from the Charter court, which judged in 2003 that a then rule requiring a married woman to adopt her husband’s surname contravened the equal protection clause under the prevailing Constitution. The law was subsequently changed to give women a choice on this matter, and also on the honorific preceding her name.

“We saw changes through this channel, so we hope that the court will see it necessary to work on this matter,” said Ms Naiyana.