Bangkok streets were in celebration mode last month when Thailand became the first country in Southeast Asia to legally recognise ‘marriage equality’ or same-sex marriage. The Marriage Equality Bill was overwhelmingly approved by Thailand’s House of Representatives in March; the Thai Senate adopted it in June. In September, it got the royal endorsement. The new law will take effect from January 22, 2025.
The Thai message is significant for many countries in Asia. Thailand, famously called the Land of Smiles in tourist brochures, has never been colonised. The classic charge of ‘copying the West,’ does not apply in this case. “In fact, in significant ways, Thailand has been ahead of its Western counterparts,” academics Peter A Newman and Holning Lau argued in a blog for East Asia Forum in September.
“Thailand decriminalised consensual same-sex intimacy in 1956 — a law that had seen no actual prosecutions previously — decades before major Western countries. It was only in 1981 that the European Court of Human Rights ruled against the United Kingdom’s criminalisation of same-sex intimacy. The US Supreme Court’s landmark case decriminalising sodomy did not occur until 2003,” write Newman and Lau.
Situating “Thailand’s marriage equality law within the country’s own history of law and policy reforms, it becomes apparent that marriage equality in Thailand amounts to much more than copying the West.
Marriage equality in Thailand is a potent antidote to claims that LGBTQ+ rights do not belong in Asia,” they add.
What fears and hopes does the idea of a ‘marriage equality’ law evoke in India?
In 2018, India's top court decriminalised consensual sex between two adults irrespective of their gender and partially struck down Section 377 of the what was then the Indian Penal Code. But India remains resistant to the idea of same sex marriage.
Many activists see the debate over marriage equality legislation as part of a broader narrative.
“As a country that is not part of the Western world, that has not been colonised, Thailand is more relatable to several other nations across the Global South. Thailand is certainly an inspiring example of how to do things differently, showing all of us how other worlds are possible. Other Asian countries which now recognise marriage equality are Nepal and Taiwan. These are fellow Asians. There is a cultural affinity. Queer love has been decriminalised in India, but the morality police in India continues to wage a war on choice,” says 28-year-old Anish Gawande, national spokesperson for the Nationalist Congress Party (SP) and founder of Pink List India, an archive of politicians supporting rights of LGBTQ, an umbrella term, broadly referring to all sexualities, romantic orientations, and gender identities which are not heterosexual or cisgender.
“The political and cultural opposition to marriage equality, which would give a legal status to queer couples, must be seen in the context of the current political landscape where efforts are being made to build a very masculine state and where the idea of masculinity fits a certain stereotype,” argues Gawande.
“The Indian state does not have a problem with decriminalising same sex relationships but it is not willing to give them legal rights which other Indians enjoy. There is also a fear that if one group of people — the LGBTQ community — is given the freedom of choice and legal rights, others — like inter-faith and inter-caste couples — will feel emboldened. Hindutva fears choice, especially in personal life. There is a fear that once choice is given free rein, there will be a lot more questioning of family, community and possibly the State,” says Gawande.
Gawande also questions the idea of LGBTQ couples being a threat, even if they are married. “Only a minuscule portion of the community is privileged enough to be open about its sexual orientation. Take my case. I can be ‘out’ because I have caste and class privileges. Political opposition to marriage equality must also be seen as part of an opposition to rights discourses.”
“If the (apex) Court says that the Parliament is the only entity to decide who can marry whom, and the conditions for marriage, it becomes subject to majoritarian whims and fancies. Tomorrow, if the Parliament wants to repeal the Special Marriage Act, that would be legally permissible post the judgement in Supriyo (Supriyo Chakraborty v Union of India),” says Rohin Bhatt, a Supreme Court lawyer, advocate of LGBTQ rights and author of a new book, The Urban Elite v. Union of India: The Unfulfilled Constitutional Promise of Marriage (In)Equality.
What can India learn from the Thai example?
Conversations with Thai LGBTQ activists make clear that the debate over marriage equality in their country is also part of a wider narrative and has been as much about legal and financial implications as about relationship and rights.
It took concerted efforts by activists for nearly two decades to get to this point.
“There have been years of struggle. Now, every political party wants the support of the LGBTQ community. Marriage equality law came into existence because there was political will. The LGBTQ community is also made up of voters — more than 4.5 million, even by a very conservative estimate. There are many more who are not open about their status. The corporate sector has also realised our importance. More and more companies are supportive, have welfare policies for LGBTQ. This includes big names like DTAC,Thailand’s third largest GSM phone company, Sansiri, one of the largest real estate developers in Thailand and so on,” says Nada Chaiyajit, a Thai LGBTQ advocate, and a scholar currently pursuing higher studies in the United Kingdom.
Nada told me that The Tourism Authority of Thailand, a government agency, started a campaign ‘Go Thai, Be Free’ more than 10 years ago to attract foreign gay and lesbian travellers to Thailand. “This was part of looking for new revenue streams and not wanting to be dependent on tourists from only a few countries.”
But there was opposition. And as an activist, Nada has been at the receiving end.
“It is true that some clerics from the Muslim and Catholic communities opposed the marriage equality law but their arguments were rejected. The marriage equality law will certainly give more rights. However, in parts of Thailand, despite the legal status, same sex couples could still find it difficult because of cultural norms. As a Muslim intersex-transgender rights advocate, I have personally faced many threats of violence so we need to continue our struggle even if the law is a milestone,” says Nada.
Naphat Krutthai, better known as Jim, who works for The Asia Pacific Coalition on Male Sexual Health (APCOM), a Bangkok-based advocacy group working with the LGBTQ in the Asia-Pacific, also flags the long struggle that has led to “to where we are now.”
To Jim, the law’s big attraction is not only the legal status it gives to same sex couples but also its link with practical issues like property, inheritance, and a medical emergency.
“As I get older, I am concerned about medical emergencies. A partner who is not a legal spouse has no rights. The law will give more protection to the LGBTQ community but challenges remain, and the big one is cultural acceptance, outside big cities like Bangkok.”
Same-sex love is still not widely accepted in rural Thailand, says Jim. “It also depends on whether you have money. If a person belonging to the LGBTQ community has money, it means privilege, and greater acceptability. The marriage equality law is important because we are now as acceptable as others. This may also lead to more families being more welcoming.”
In India, petitions by same-sex couples for marriage equality has been wending their way through the courts. The Modi government opposed the recent appeals, arguing that the petitions reflected “urban, elitist” views and could not be compared with the views of the legislature which reflected a wider spectrum of views.
In October 2023, the issue jumped onto national and international headlines when the Supreme Court (Supriyo Chakraborty v Union of India) concluded that marriage is not a ‘fundamental right’ and the provisions of Special Marriage Act, 1954, and Foreign Marriage Act cannot be interpreted to include the marriage of non-heterosexual partners. However, all the judges on the bench agreed that queerness cannot be framed as an elitist concept prevailing only in urban areas.
As it stands now, same-sex love is not a criminal offence in India and LGBTQ people can engage in relationships without fear of legal repercussions. But the Supreme Court ruling denied them marriage rights (and therefore legal status in terms of family matters, like inheritance or even hospital visitation rights), leaving the matter to the legislature to decide if non-heterosexual unions can be legally recognised.
Thailand also went through some of these challenges.
But today influential sections of the political and business class see merit in courting the LGBTQ community.
As Rohin Bhatt puts it “The strongest argument I make is that we are equal citizens who want equality. We are not asking for anything more, and the Court and the government have failed us.”
The message from Thailand — there is merit in patience and persistence.
Patralekha Chatterjee is a writer and columnist who spends her time in South and Southeast Asia, and looks at modern-day connects between the two adjacent regions. X: @Patralekha2011
