On June 18, 2024, Thailand's Senate approved a landmark marriage equality bill, making Thailand the first ASEAN country to legalise same-sex marriage. This progressive move marks a significant advancement in LGBTQ+ rights in the region. Despite Thailand's leadership, Southeast Asia remains largely hostile towards SOGI minorities, with many countries enforcing laws that criminalise non-hetero-cis identities. The article highlights the historical and political context influence of these laws that shows the role that colonial legacies and contemporary Western influences have in the life of queer people in the region. It also underscores the urgent need for broader regional reforms and the potential for Thailand to inspire similar advancements in neighbouring countries.
BY Andrea Di Marcoberardino
Introduction
On June 18, 2024, the Thai Kingdom’s Senate approved the Marriage Equality Bill, which consents to same-sex marriage in the country. The lower house first proposed the bill, which was approved with a vast majority in March.[1] This marks an incredible step forward for the rights of sexual orientation and gender identity (SOGI) minorities, not only for Thailand but also for Southeast Asian countries. The bill makes Thailand the first country to legalise same-sex marriage in the region, a more decisive step forward for the country in taking the role of regional leader for LGBTQ+ rights.[2] However, the situation for SOGI minorities in Southeast Asia is still dire, with several countries not granting protection and access to fundamental human rights and others directly criminalising any non-hetero-cis sexual orientation and/or gender identity. In order to analyse the positive impact of the Thai bill in such a complex socio-political context, it is necessary to explore the regional history and political environment in depth.
SOGI Minorities in Thailand
Thailand has long been the most progressive country in terms of SOGI minorities' rights in the region.[4] However, conservative and homophobic sentiments have long been part of Thai politics, and granting the bill's passage has been a long process. The approval of the marriage equality bill in Southeast Asian countries was sped up following a constitutional court ruling. The ruling declared the existing law, which only allowed marriage between heterosexual people, constitutional; however, it also invited the legislative power to expand the rights to all minorities.[5] The progressive Move Forward Party's victory in the previous elections also accelerated and played a pivotal role in the law's approval.[6]
The legislation provides LGBTQ+ couples with identical legal rights and recognition as those given to heterosexual couples, encompassing areas such as inheritance, adoption, and healthcare decision-making.[7] The Thai Prime Minister, Srettha Thavisin, commented on the approval of same-sex marriage and declared on his social networks: “We have come far in our journey towards social equality. I want to reaffirm my government’s commitment to pushing for the realisation of the Equal Marriage Bill, which today we can visibly see the light at the end of the tunnel.”[8] Still, Thailand is only the third country in all of Asia, after Nepal and Taiwan, to approve same-sex marriage and the first in the southeast part of the continent. Due to populist conservative politics and radical religious ideology, not only do the countries in the region not grant any rights to the LGBTQ community, but SOGI minority individuals face persecution, violence and discrimination daily. Countries like Myanmar, Brunei and some provinces of Indonesia openly condemn same-sex relationships and non-cisgender identities with punishments that, in some cases, include the death penalty.[9]
SOGI Minorities in Southeast Asia: THe Effect of Colonialism
Brunei operates under a dual legal system, where Sharia and common law run parallel. Based on the information provided by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) database under Article 82 of the Syariah Penal Code Order (SPCO) (2013), the death penalty can be imposed for acts of liwat (sodomy). Article 92(3) criminalises musahaqah (lesbian acts), which can result in a fine, imprisonment, whipping, or a combination of both. Article 377 (Chap 22) of the secular Penal Code (1951) criminalises “unnatural offences'', defined as “carnal intercourse against the order of nature with any man, woman, or animal”.[10] In 1886, British colonisers introduced the Indian Penal Code of 1860 to British Burma (modern Myanmar), alongside the Code of Penal Procedure (Act No. 24 of 1861) and the Evidence Act (Act No. 1 of 1872). According to Section 377 of the Indian Penal Code, any individual who willingly engaged in "carnal intercourse against the order of nature" with another man, woman, or animal faced penalties including life transportation or imprisonment.[11] In Malaysia, same-sex relationships were also criminalised during the colonial period in 1936 under Section 377 of the Penal Code of the Federated Malay States, which provides sentences of up to 20 years of imprisonment. [12]
The colonial heritage of homophobic laws in the region is evident. British, French, Spanish, United States and Dutch colonial rule in Southeast Asia has brought with them the anti-LGBTQ+ laws and sentiments that, after independence, were, in most cases, heightened. In the post-decolonisation homophobic sentiment, the Global North also played a pivotal role. As noted by William N Eskridge, the evangelisation process of Western countries destroyed indigenous culture far more openly towards SOGI minorities in Southeast Asia, exporting “their anti-homosexual attitudes''. [13] Based on Ann Soler's analysis, the spread of these anti-SOGI minorities' sentiments can be credited not only to the evangelisation of “Western principles'' on the colonised population but also to an exclusionary strategy, a desire for exclusion and marginalisation of Indigenous communities with queer traditions. [14] It is no coincidence that Thailand, the only country that did not fall under colonial rule, is indeed the most progressive nation towards queer people because they did not suffer the influence of European homophobia.
Present-day Western influence has also contributed to building the identities of LGBTQ+ people in the region. For instance, the ethnographic study of Tom Boellstorff about sexuality and nation in Indonesia shows how, in the fourth most populous country and with the most prominent Muslim community in the world, there is an archipelago of identities that perceive love, sex, romance, and spaces in a diverse way and in which mass media, politics and globalisation plays a pivotal role in shaping them and in fostering a common perception of a union with the Western queer world. [15] In this sense, in the 21st century, the role of the Western world has changed from the colonisers that instilled queerphobic sentiments in the region to the model of the globalised world that shapes the idea of queerness, creating a dangerous perception of uniformity in a vast and complex world of identities and orientations.
In this panorama, the effects of such restrictive legislations or disinterest of the governments towards the rights of SOGI minorities have created various complexities in the region. The last factsheet report on “Sexual Orientation, Gender Identity and Expression and Sex Characteristics (SOGIESC) and the UN Human Rights Mechanism in Southeast Asia (2017-2020),” realised by the ASEAN SOGIE Caucus, revealed a concerning situation. Several concerns for the safety of LGBTQ+ individuals in all the countries of the region were noted, with particular emphasis on the prevention of violence and discrimination against LGBTIQ+ women and trans people. [16]
Conclusion
Thailand’s marriage equality bill represents a crucial step forward for a more inclusive future for SOGI minorities in Southeast Asia. However, it has been shown that the situation is still worrying and dangerous for LGBTQ+ individuals who live in the region, who face constant persecution and danger. Still, this is not the first step forward towards the recognition of more rights for non-cis-hetero individuals; in 2019-2020, the 18th Philippine Congress approved the SOGIE equality bill that represented a legislative milestone in the fight against discrimination towards LGBTQ+ people. [17] The hope is that something similar to what happened in South America with the approval of same-sex marriage in Argentina in 2010 provoked an avalanche of bills that protected and increased the rights of LGBTQ+ individuals in neighbouring countries. Nevertheless, the two areas are demographically, politically and socially very different, and the starting situation for the LGBTQ+ community is not the same. For instance, Wilkinson et al. noted a particular trend in Southeast Asia in which significant steps forward towards queer rights went in parallel with major setbacks and restrictive laws, [18] a very diverse situation to what has been experienced in South America. In this context, the primary hope is that countries like Thailand and the Philippines can become regional ambassadors of LGBTQ+ rights and instances. At the same time, activists and people from all over the world must become interested and serve as a megaphone of the needs and instances of SOGI minorities in Southeast Asia.
References
[1] Kyle Knight and Sunai Phasuk, ‘Victory for Same-Sex Marriage in Thailand Other Asia-Pacific Governments Should Follow Example of LGBT Rights Progress’, Human Rights Watch, 18 June 2024.
[2] Helen Regan and Kocha Olarn, ‘“Monumental Step Forward”: Thailand to Become First Southeast Asian Nation to Legalize Same-Sex Marriage’, CNN, 18 June 2024.
[3] ILGA, ‘ILGA Database World’, 2024.
[4] Al Jazeera, ‘Thai Parliament Passes Same-Sex Marriage Bill’, 27 March 2024.
[5] Ibid.
[6] Regan and Olarn, ‘“Monumental Step Forward”: Thailand to Become First Southeast Asian Nation to Legalize Same-Sex Marriage’.
[7] Ibid.
[8] Srettha Thavisin, as quoted in Regan and Olarn, ‘“Monumental Step Forward”: Thailand to Become First Southeast Asian Nation to Legalize Same-Sex Marriage’.
[9] ILGA, ‘ILGA Database World’.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] William N Eskridge, ‘A History of Same-Sex Marriage’, Virginia Law Review, vol. 79, 1993, p.1473.
[14] Ann Stoler, ‘Sexual Affronts and Racial Frontiers: European Identities and the Cultural Politics of Exclusion in Colonial Southeast Asia’, Comparative Studies in Society and History 34, no. 3 (1992): 514–51.
[15] Tom Boellstorff, Gay Archipelago: Sexuality and Nation in Indonesia (Princeton University Press, 2005).
[16] ASEAN SOGIE Caucus, ‘Fact Sheet: Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) and the UN Human Rights Mechanisms in Southeast Asia (2017-2020)’, 2021.
[17] Tracy Mae Ildefonso, ‘SOGIE Equality Bill Deliberations in the 18th Congress of the Philippines: A Persisting Battle against Discrimination’, South East Asia Research 32, no. 1 (2024): 95–111.
[18] Cai Wilkinson et al., ‘LGBT Rights in Southeast Asia: One Step Forward, Two Steps Back?’, IAFOR Journal of Asian Studies 3, no. 1 (2017).
