Transsexuals and Thai Law
by Jason Armbrecht

11 April 2008

Walk down almost any busy street in Thailand, especially in a tourist hotspot such as Bangkok, Pattaya or Phuket, and chances are good that you will see at least one Thai transsexual. Thailand’s first sex change surgery was performed in 1972 and the country now hosts more of these procedures per year than any other country in the world. Estimates on the current number of Thai transsexuals range from 10,000 to 100,000, including a number of pop singers and television and movie stars. A transsexual beauty pageant, the Miss Tiffany’s Universe, is televised nationally each year. On the surface, Thailand appears to live up to its worldwide reputation as a place where transsexuals can experience greater freedom and acceptance than other nations. It would seem curious then that, accreting to Thailand Lawyers, Thai laws are in actuality quite conservative regarding transsexuals and their rights. A closer look at Thai society and culture, however, reveals a society with a decidedly mixed view of transsexuals - a view reflected in a legal system that does not afford transsexuals many of the rights and protections enjoyed by the rest of the population.

Thailand is roughly 95% Buddhist and as such, the issue of transsexuals in Thai society may be examined at through this lens. Unlike Christians, Buddhists cannot point to specific religious laws or teachings forbidding homosexuality, transsexuals or gay marriage. One of the fundamental teachings of Buddhism is tolerance of those who act differently or hold different views. At first blush, this tolerance (if not acceptance) would seem to extend to transsexuals in Thailand. Transsexuals are integrated into everyday life and physical or verbal assault on transsexuals in public is extremely rare.

This patina of tolerance is also borne out in a survey of male to female transsexuals conducted by Dr. Sam Winter, Associate Professor, Division of Learning, Development and Diversity, Faculty of Education at the University of Hong Kong. According to his findings, the transsexuals polled indicated that 40% of their fathers and 66% of their mothers either accepted or were encouraging when told of their decision to change genders, numbers he believes would be impossible to duplicate in the West.

Unfortunately for transsexuals, this familial tolerance does not mirror the opinion of certain sections of Thai society in relation to what legal protections should be afforded transsexuals. Nearly 70% of respondents in a Ramkhamhaeng University Public Opinion Center poll disapproved of legalizing gay marriage or allowing transsexuals to legally adopt their new gender on ID cards and passports.

The obvious question arises: If transsexuals are such a visible part of everyday Thai life, and are clearly tolerated by society, then why do some polls indicate that a majority of Thais oppose granting transsexuals the broad spectrum of legal protection that other nations (Netherlands and Belgium for example) have afforded transsexuals? These rights include legally changing their gender on public identity cards, the right to civil unions and employment protection rights. Again, Buddhism may play a role. While the Buddhist focus on tolerance does in part shape Thai society’s tolerant view of transsexuals, the Buddhist principle of karma may provide an alternative explanation. Karmicly speaking, we are all paying off debts accrued through actions in past lives. Many Thais view transsexuals’ lives as generally unhappy and unfulfilling. Some also deem that this unhappiness is the result of a karmic punishment forced on them by sexual misdeeds in past lives. The standard karmic tale is that transsexuals were formerly "playboys" in their former life and, as a result of breaking so many lovelorn hearts of women, were imposed the ultimate punishment: making them a woman trapped in a man's body, forever doomed to unrequited love. Therefore, they are a group to be pitied, not protected.

A fundamental misunderstanding of the nature of transsexuality might also contribute. There is a dearth of Thai language materials focused on educating the public about transsexuality. According to a 2003 study by Dr. Winter, 51% of university students agreed with the statement ‘(transsexuals) are men with something wrong with their mind.’ Considering these are ostensibly well-educated and open-minded young people, one can only imagine what the percentage would be if the rest of Thai society was polled.

Recent history demonstrates how quickly this type of prejudice can lead to institutional discrimination. In December 1996, a transsexual student enrolled in the education program at a public university murdered a female friend. In response, another well-known higher education institution in charge of Thailand’s teaching universities banned transgender and homosexual students from attending their teacher training facilities. Transsexuals were variously referred to as ‘sexually deviant’ and ‘sick…mentally’ by members of the institute, and considered a bad influence on children. This argument was simply keeping in line with the Department of Mental Health, which at the time considered homosexuality a mental disorder. Subsequent pressure from both Thai and Western gay rights groups soon forced a repeal of the ban.

As far as the Thai government is concerned, male to female transsexuals are legally men. Transsexuals cannot legally change their gender on their ID cards, leading to problems with potential employers. Many employers do not want possible complications involved with hiring a transsexual if an equally qualified ‘normal’ person can be hired. Because of this, the vast majority are relegated to occupations traditionally held by women, i.e. waitresses, hairdressers, make-up artists, and vendors, even if they are university graduates. Transsexuals’ birth gender must remain the same on their passports as well, a fact which can lead to confusion and unwanted scrutiny at border crossings and immigration checkpoints. Thailand also prohibits same sex marriage, meaning that when the partner of a transsexual dies, the deceased’s family receives any and all assets.

There have been some positive developments, however, as the past six years have seen important legal gains for transsexuals and the gay community in general. In 2002, the Department of Mental Health, under intense pressure from the gay community, removed homosexuality from its list of mental disorders. This decision helped pave the way for the Thai military to announce in 2005 that it would discontinue its practice of dismissing transsexual and gay recruits for having ‘a severe mental disorder,’ and the subsequent announcement in March 2008 that the military would be adding a ‘third category’ for transsexuals. This third category would allow transsexuals to be dismissed from service due to ‘an illness that cannot be cured in thirty days’, thereby removing the scarlet letter of ‘mental disorder’ from their service records – records that must be provided at each job interview and with each loan application. 2007 saw the legislature expand the legal definition of rape from a man who forcibly has sex with someone to whom he is not legally married, to include forcible sex perpetrated by either sex against either sex. Before this change, a man who raped a transsexual could only be charged (if he was indeed even charged) with sexual molestation, a crime resulting in a fine. Offenders under the new law face the prospect of four to twenty years in jail.

With the September 2006 coup, the Thai military, perhaps counter-intuitively, provided the transsexual and gay communities their best chance to date of gaining constitutional protections. After the Council for National Security suspended the constitution, gay and lesbian rights groups such as the Anjaree Foundation, the first effective lesbian rights organization in Thailand, and the Gay Political Group of Thailand began lobbying the Constitutional Drafting Committee and the Constitutional Drafting Assembly to add language assuring protections for transgender, gay and lesbian citizens. A proposal to add the term ‘sexual diversities’ to the list of groups covered under the equality clause (Section 30) of the draft constitution was debated, but ultimately voted down by a 54 to 23 margin. A well-known transsexual advocate believes that semantics played a role in the defeat of the proposal. Speaking to the International Gay and Lesbian Human Rights Commission, she noted, ‘The fact that we do not have neutral words in the official Thai language was used by some Assembly members to sideline the importance of extending the equality and protection against discrimination for LGBT (Lesbian, Gay, Bi-sexual and Transsexual) people’. The LGBT community and academics have been trying to develop new terms regarding sexual orientation and the Thai word meaning ‘sexual diversities’ may have been confusing to some Assembly members, she said.

The 2007 Constitution, as currently written, states that ‘The Thai people, irrespective of their origins, sexes or religions, shall enjoy equal protection under this Constitution’ (Section 5) and ‘Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted’ (Section 30). Although transsexuals and homosexuals are not explicitly mentioned, there are signs that transsexuals and homosexuals will be actively using the new constitution as a basis for defending themselves against discrimination. Late last year, a leading proponent of the Gay Political Group of Thailand claimed that he was refused a life assurance policy by an insurance company due to his homosexuality. After meeting with the Constitution Drafting Council, who agreed that the company was violating his constitutional rights, he threatened legal action and petitioned the Commerce Ministry and the Office of the Insurance Commission (OIC), resulting in a certification from the OIC and the insurance company that homosexuals are guaranteed the right to purchase insurance policies.

While this case shows that the new constitution can and will be used by the gay and transsexual community to assert their rights, it is interesting to note that the concessions granted by the OIC and the insurance company do not cover transsexuals. This fact illuminates a problem facing transsexuals – while their plight may be more misunderstood by the general public and their path towards true equality more complex than the homosexual community’s, they have not yet formed an advocacy group focused solely on furthering their agenda. This might be due in part to Thai society’s traditional insistence on harmony and avoiding public confrontations. Advocacy and protests by gay and lesbian groups such as Anjaree and the Gay Political Group of Thailand, have resulted in transsexuals’ recent legal gains. Their social and legal status in Thailand, even when compared to the rest of the LGBT community, is unique. As such, further gains may require forceful advocacy by transsexual groups. As the advocate for a gay advocacy group in Thailand observes, ‘The situation is very bad for gays but for transgenders, it’s even worse.

Related article:

Translation of 2009 Regulation on sex change operations in Thailand

Guidelines for Sex Change Operations in Thailand

6 Response to “Transsexuals and Thai Law”

Post Comment >>