Blog Post #12: Accepting the Third Gender: Thailand’s Constitutional Change Could Begin New Trend in Asian Countries

By Jacqueline Morley

President Barack Obama made history last week by being the first U.S. President to use the words “lesbian,” “bisexual,” and “transgender” in a State of the Union address.[1] President Obama proclaimed that Americans must “condemn the persecution of women, or religious minorities, or people who are lesbian, gay, bisexual, or transgender.”[2]His speech marked the first time that a president had distinguished between “lesbian” and “gay” rather than using “gay” as a catchall phrase.[3] The decision to use both terms represents a gesture of inclusion and acceptance that only continues to show President Obama’s support for the LGBT community.[4]

President Obama’s recognition of the transgender community in his address came roughly a week after Thailand announced plans to include a new gender identification in its constitution: the “third gender.”[5]Thailand has an extensive transgender community, with many of its transgender citizens participating in the country’s pervasive entertainment scene.[6] In Thailand, transgender women tend to be identified under the umbrella term “kathoey.”[7] Unfortunately, this is not an exclusive or specific term because it seemingly describes both sexual practices and gender identity.[8] For example, men that identify biologically as men and are attracted to other men are considered “kathoey,” while biological males that identify as women are also considered “kathoey” with no attention given to their actual sexual preferences.[9]

The proposed changes to the Thai constitution would provide the legal recognition that transgender men and women need the option to self-identify, rather than be categorized as male or female.[10] The Constitutional Drafting Committee has promulgated the proposal, but this change to the Thai Constitution will need to be officially approved by the National Council for Peace and Order, which came to power last May after a military coup that disbanded the previous committee.[11]Kamnoon Sittisamarn, the spokesperson for the Committee, noted that the addition of the “third gender” is necessary because “there are not only men and women” and that the Thai government “need(s) to protect all sexes.”[12]

The decision comes on the heels of similar changes by other Asian nations: Nepal, Pakistan, and Bangladesh, which have all recently instituted policies concerning the recognition of a third gender.[13] For example, India, where transgender individuals have been harshly discriminated against, granted transsexual and transgender citizens the right to self-identify last year.[14] Such changes are exceedingly important because, as the HIV Law Commission noted in its 2012 report, transgender individuals often find it impossible to seek medical attention, as they lack the proper documentation.[15] However, these changes, both in Thailand and the other Asian nations, create an odd juxtaposition with the stringent anti-same-sex marriage sentiments in these countries. Many of these governments remain strongly opposed to the allowance of marriage between same-sex couples and give no indication of possible future changes on the subject.[16] It is seemingly paradoxical that Thailand, a historically conservative country with strictly delineated gender roles, would enact a provision that allows for the recognition of transgender people.[17]

Yet, the importance of this proposal should not be marginalized. Thailand’s progress is commendable and it is important to remember that even though the United States has made considerable progress in recent years on a number of LGBT issues, there is no specific constitutional protection afforded to members of the transgender community.[18] Although transgender people are protected from discrimination under the Constitution, the Supreme Court has not actually considered the question and until it does, transgender rights are not fully solidified.[19] A number of states and cities have enacted various provisions that protect transgender individuals from discrimination in areas such as housing, employment, and education,[20]but none of these laws are uniform or nationally binding. Thailand’s decision should come as a reminder that there is still progress to be made, in both the U.S. and throughout the world, in the promotion and protection of transgender rights.

[1] Alexandra Jaffe, Obama Makes Historic “Transgender” Reference in SOTU, Cnn (January 21, 2015, 11:55 AM),http://edition.cnn.com/2015/01/20/politics/obama-transgender-sotu/.

[2] Id.

[3] Mark Joseph Stern and J. Bryan Lowder, LGBT Comes to the SOTU,Slate (January 20, 2015, 9:57 PM),http://www.slate.com/blogs/outward/2015/01/20/state_of_the_union_obama_includes_transgender_and_bisexual_in_the_2015_address.html.

[4] Toni Newman, President Barack Obama and Transgender Rights: The Real Deal, The Huffington Post (April 12, 2012, 5:14 PM)http://www.huffingtonpost.com/toni-newman/obama-transgender-rights_b_1420542.html.

[5] Amy Sawitta Leferve, Thailand to Recognized ‘Third Gender’ in New Constitution: Panel, Reuters.com (January 15, 2015, 4:40 AM),http://www.reuters.com/article/2015/01/15/us-thailand-politics-idUSKBN0KO0SC20150115.

[6] LeeRar Costa, Male Bodies, Women’s Souls: Personal Narratives of Thailand’s Transgendered, 20 (2013).

[7] Id. at 14.

[8] Id. at 19.

[9] Id.

[10] Madison Park and Kiki Dhitavat, Thailand’s New Constitution Could Soon Recognize Third Gender, CNN (January 16, 2015, 4:41 AM)http://edition.cnn.com/2015/01/16/world/third-gender-thailand/.

[11] Leferve, supra note 5.

[12] Charles Pulliam-Moore, Thailand Constitution to Legally Recognize a ‘Third Gender,’ Towleroad.com (January 16, 2015),http://www.towleroad.com/2015/01/thailand-constiution-to-legally-recognize-a-third-gender.html.

[13] Madison Park and Kiki Dhitavat, supra note 10.

[14] Id.; see also Report, HIV Law Commission, 51-53, available athttp://www.hivlawcommission.org/resources/report/FinalReport-Risks,Rights&Health-EN.pdf.

[15] HIV Law Commission, at 52.

[16] Madison Park and Kiki Dhitavat, Thailand’s New Constitution Could Soon Recognize Third Gender, Cnn (January 16, 2015, 4:41 AM)http://edition.cnn.com/2015/01/16/world/third-gender-thailand/.

[17] LeeRar Costa, Male Bodies, Women’s Souls: Personal Narratives of Thailand’s Transgendered, 15-16 (2013).

[18] Know Your Rights—Transgender People and the Law, Am. Civil Liberties Union (April 24, 2013), https://www.aclu.org/lgbt-rights/know-your-rights-transgender-people-and-law.

[19] Id.

[20] Id.