On Friday (22 November), two LGBT couples, along with the Foundation for SOGI Rights and Justice (For-SOGI), went to the Constitutional Court to file a petition asking the court to rule whether the current Thai marriage law violates the 2017 Constitution.

The two couples with representatives from LGBT rights organizations in front of the Constitutional Court

The Thai Civil and Commercial Code defines marriage as being between a man and a woman, denying same-sex couples the right to be legally married. On 4 June 2019, after a couple was denied marriage registration by the Phasi Charoen District Office because the law does not allow marriage registration between two women, For-SOGI filed a complaint with the Ombudsman to rule whether Article 1448 is in conformity with Section 27 of the 2017 Constitution.

Under Section 27 of the 2017 Constitution, all persons are “equal before the law, and shall have rights and liberties and be protected equally under the law.” This section also states that “unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious belief, education, or political view which is not contrary to the provisions of the Constitution, or on any other grounds shall not be permitted.” For-SOGI and the couple therefore filed a complaint with the Ombudsman on the ground that denying marriage registration to same-sex couples is discrimination.

However, on 27 August 2019, the Ombudsman ruled that, according to Article 1448, marriage can only be contracted between a man and a woman, and that because the law only considers the gender a person is assigned at birth, it is not considered gender-based discrimination which would be a violation of the Constitution. The Ombudsman therefore would not file a request for a Constitutional Court ruling. In addition, since the Rights and Liberties Protection Department is already in the process of drafting a civil partnership bill, the Ombudsman dismissed the couple’s complaint.

The couple and representatives from For-SOGI therefore went to the Constitutional Court on 22 November 2019 to directly file their petition asking the Court to rule whether Article 1448 is in violation of Section 27 of the Constitution.

Permsap Sae-Ung, who came to the Court with her partner Puangphet Hengkham, to file the petition, said that she is filing the petition in order to receive what is considered a basic human right.

“I am one of the citizens under the law, so the law has to protect the two of us, or protect every LGBT person, not just couples who are men and women,” said Permsap. She and Puangphet have been together for 11 years, but have not been able to legally marry as Thai law does not allow registration of marriage between two women, which causes issues when it comes to authorizing medical treatment for each other.

The lack of marriage equality has meant that same-sex couples in Thailand face issues such as not having the power of attorney to make medical decisions on behalf of their partners. They are unable to adopt a child together or to have access to assisted reproductive technology. In cases where one partner dies, the other is not able to inherit or make legal decisions about their partner’s assets, and in cases where one partner is not a Thai national, they are not entitled to a marriage visa in order to take residence in Thailand with their partner. 

Earlier this year, Taiwan became the first country in Asia to legalize same-sex marriage. Meanwhile, Thailand’s plan for a Civil Partnership Bill, which faced criticism from NGOs and LGBT rights activists for not giving same-sex couples equal rights to heterosexual couples, seem to have already fallen through, but a group of LGBT rights organizations is now pursuing an amendment to the Civil and Commercial Code to have the definition of marriage changed from being between a man and a woman to between two persons.

The Constitutional Court will first have to consider whether to accept the case or not. Currently, it is not known how long this will take.