Asian values and legal systems: opportunities and setbacks for the advancement of LGBTI rights and interests in enterprises, employment, immigration, property relations and related matters ; The Thai perspective!
Over the years, LGBTI (lesbian, gay, bisexual, transgender and intersex) rights have steadily developed and progressed, mainly in Europe and the USA. Indeed, in some jurisdictions, the LGBTI community have the same rights as heterosexual couples. However, this has not been so common in Asia, until last year, when Taiwan took a huge step in passing the Marriage Equality Act in May 2019. This is seen as a significant development and achievement as traditional cultures and traditions still dominate in this part of the world. There is a very large LGBTI community within Asia whom can be described as both educated and progressive but, until now, it is only Taiwan that has adequate regulations in place to safeguard the LGBTI community’s interest.
The only other country remotely trying to follow in the footsteps of Taiwan is Thailand; where a Civil Partnership Bill is currently going through the parliamentary process. Although it is argued that the bill does not give so many rights, it is however quite promising to see that there are some rights, compared to no rights at all.
The biggest hurdle in Asia is overcoming the cultural barriers. The LGBTI community are often comfortable with their identity within the work place or with friends but not necessarily so with their parents and family. Acceptance of them by the family is still not there, and many have to live ‘in the closet’ so to speak. This clearly hinders the development of LGBTI rights in general within Asia.
With the development of a move civilised society, there is quite a lot of tolerance and acceptance but often there is not much legal backing. Hence, the LGBTI community remains quite vulnerable.
The position in Thailand in general is pretty accepting of LGBTI people, especially in Bangkok and the surrounding areas. This is evident across society, with businesses catering specifically for the LGBTI community; parliament members who are openly transgender; and even champion boxers from the LGBTI community. Indeed, in the recent election, there was strong support for the LGBTI parliament representatives. There is even a budget airline that encourages transgender community to work as cabin crew. There appear to be very little issues in Thailand with the LGBTI community.
However, despite all this acceptance, there are still no specific laws that protect the rights of the LGBTI community in Thailand.
In Thailand, there is the Gender Equality Act B.E. 2558 , which stipulates that “unfair gender discrimination in any act or omission of the act which causes division, discrimination or limitation of any right and benefit either directly or indirectly without justification due to the fact that the person is male or female, or of a different appearance from his/her own sex by birth.”. This Act is intended to protect people, specifically LGBTI people, from discrimination, and sets out that such discrimination is punishable. However, there has been much criticism of this Act in that the government and public bodies have not promoted it enough. Consequently, there are still many incidences of discrimination that take place, merely because the LGBTI community have not actively been made aware of their rights.
Reliance in case of discrimination is under Sections 4 and 27 of the Thai Constitution, which states that all persons are equal before the law, shall have rights and liberties, and be protected equally under the law. Although not commonly used, the Gender Equality Act B.E. 2558  can be argued to be supportive towards the LGBTI community.
Under the Labour Protection Act (1998), all employees are treated equally. Going by this interpretation, there is some form of protection for the LGBTI community, although said Act does not specifically mention the LGBTI community. Relying on this, there may potentially be a cause of action before a labour tribunal/court. That being said, thus far, there has not been any instance where an issue relating to unfair dismissal by reason of sexuality was brought before a labour tribunal or labour court. In spite of this, we are convinced there are regular situations of such manner arising but complaints are seldom made due to the LGBTI community’s lack of knowledge of their rights.
Although, Section 1448 of the Marriage Act currently defines ‘marriage’ as a legal union only between a man and a woman, this is contradictory with the Thai Constitution, which puts all Thai citizens on an equal platform.
In situations of discrimination, it is often hard to prove the incident occurred as employers would almost never state that promotions or hiring of staff is done based on the sexual orientation of a candidate. The common phrase used in such situation is “does not meet the job requirement”. There is also no evidence of candidates challenging the matter. Having said that, there are several LGBTI people working in the Thai Government; some of whom are in quite senior positions. Again, there are no statistics available to indicate discrimination based on their sexuality relating to promotion or hiring.
Technically, the Thai Labour Protection Act provides that all employees are to be treated equally; no reference is made on gender. By relying on this, there should be no difference in treatment for the LGBTI community.
The Thai Labour Protection Act also provides provisions to stop sexual harassment in the workplace. Going by the basic principle in the Act that treats all employees equally, it can be argued that such provisions would also cover the LGBTI community.
With ever growing awareness and the development of the subject matter in many Western countries, it is becoming more common for work rules in organisations to cover harassment in general, which may extend towards the LGBTI community.
While waiting for the Civil Partnership Act to come into force, the concerned parties would have to rely on Wills and Contracts when dealing with inheritance and distribution of property. In the Civil Partnership Bill, there are provisions that offer rights to same-sex couples on managing joint assets, liabilities and the ability to give or receive inheritances. However, it is unclear when this Bill will become an Act.
A question often arising in the case of disputes is would a Thai court be willing to accept the rights of an LGBTI party? In such regard, in a recent case involving a Thai national and a deceased Brit, the Thai national petitioned the court to appoint him as the administrator of the deceased’s estate. Despite the case being dismissed by the lower court, the appellate court reversed the judgement and granted the Petition.
It is interesting to note that the appellate court recognises the equal rights for same-sex couples without discrimination on the gender differences according to the principles of the Declaration of Human Rights, of which Thailand is a member.
Although this decision is not binding on future cases, it is still encouraging to note that the courts are showing signs of “acceptance”.
Thailand’s perspective is very unique in terms of LGBTI rights. Despite there being no significant legislation aimed towards the LGBTI community, Thai society is very tolerant and accepting towards the LGBTI community, and has been for quite some time. There is strong evidence to show that the LGBTI community are widely accepted in Thai society; there are now transgender politicians and prominent business owners from the LGBTI community in Thailand.
In the absence of significant legislation protecting the LGBTI community, the pending Civil Partnership Bill is eagerly anticipated to become law. This would be the starting point for some form of protection towards the LGBTI community. Hopefully, enactment of the Civil Partnership Act will trigger further legislative implementations that would further widen the scope of protection towards the LGBTI community in Thailand.
In the wider context of Asia, many countries are dictated by culture and customs that are not easy to put aside or bypass. Thus, it may take some time but there is still hope. To expect sweeping and significant changes across the whole of Asia is maybe a bit too ambitious, but we expect to see advancements within this area in some places, such as Thailand and Japan. However, due to certain religious backgrounds, some countries may find it harder to get any bills through parliament on LGBTI rights.
This article is written by Rajen Ramiah
SCL Law Group