In Legal Limbo: Thailand, Transgendered Men, and the Law

By Andrew Matzner

 

Introduction

A number of Western writers have commented on the social acceptance enjoyed by katoey in Thailand 1. The reasons behind this acceptance may, at first glance, be explained by two factors. First, Thailand's national religion, Buddhism, condemns neither homosexuality nor transgenderism. Second, there is a lack of both state and legal intervention against transgendered behavior. In a 1996 paper about representations of katoey in Thai academic literature, historian Peter Jackson states that "stronger resistance and antagonism to homosexuality exists at the level of discourse than at the level of institutional practices of everyday life" (94-95).

On the other hand, an examination of Thai sources reveals that social acceptance of katoey is not so absolute. While the odds of suffering physical violence because of their transgenderism are extremely low, nevertheless it is not uncommon for katoey to become estranged from their families; likewise, verbal harassment by strangers does occur. In addition, although transgenderism is not considered to be sinful by Buddhist standards, it is believed that a person is born as a katoey in order to pay for the bad karma of a past life. That is, a man who commits adultery is thought to be reborn as a katoey (Jackson 1995). It is significant that, according to Theravada Buddhism, neither women nor katoey are deemed capable of attaining enlightenment in their lifetimes. The possibility of reaching Nirvana is open only to men, by virtue of their sex. Finally, although it is true that there are no legal restrictions which actively circumscribe their lives, the Thai legal code nevertheless presents a host of problems for katoey.

In this essay, I would like to examine the place of katoey under contemporary Thai law by briefly focusing on several key issues. I believe that even a cursory discussion will reveal that, despite Thailand's reputation as a transgender utopia, the Thai legal system remains a highly ambiguous domain vis-à-vis its treatment of katoey.

 

Transgenderism and Thai society

Thais use the word "katoey" as a general term to refer to biological males who exhibit varying degrees of transgendered behavior, ranging from effeminacy to complete sex-reassignment. The wide range of identities and appearances of those within the katoey population means that it is difficult to translate this indigenous term into English. Nevertheless, attempts have been made. The terms "transsexual", "transvestite" and "drag queen" are among those most commonly chosen glosses by Western commentators on this topic. Yet all of these terms are problematic due to the Western cultural baggage attached to each. For example, in the Western academic and scientific literature, transvestitism refers to the behavior of heterosexual men for whom the wearing of women's clothing provides either sexual stimulation and/or relaxation. However, this type of behavior has yet to be documented for Thai transgendered men (which is not to imply that it therefore does not exist). It is also noteworthy that katoey generally seek as sexual partners gender-normative men who do not self-identify as gay. Since Western transvestites typically seek female sexual partners, it is problematic to use the term "transvestite" to refer to katoey.

I have found that katoey both understand and manifest their transgenderism in a multitude of ways (See Matzner 1999) that do not necessarily have correlates with Western models. Therefore, I believe that specific (and value-laden) terms such as transvestite, transsexual or drag queen should not be used to refer to this population. This is why I would like to simply use the indigenous term "katoey".

Thai attitudes toward katoey vary, although it can not be denied that they are much more publicly tolerated than their Western counterparts. The ubiquity of katoey in social spaces appears to indicate that transgenderism is integrated into the Thai social fabric, both in rural and urban contexts. However, the relative ease with which katoey are able to move in public belies the complexity of the nature of their acceptance. While the Thai cultural value of non-confrontation means that katoey are able to express their transgenderism in public without fear of receiving physical violence, many Thais do feel ambivalently about transgenderism. For instance, in a study I conducted concerning the attitudes of Chiang Mai University students toward katoey, the majority of informants stated that they would feel disappointed if their male child was transgendered. Most believed that having a son who is not a "real man" would bring shame upon their family. At the same time, however, many of these same students believed that in general, katoey tend to gifted in terms of creativity, diligence, and, perhaps most importantly, beauty (Matzner 1998).

Of course, it is necessary to note that attitudes of Thais towards katoey change dramatically depending on factors such as age, gender, geographical location, ethnicity, and economic status. What makes Thai society as a whole so exceptional, however, is the lack of overt harassment against katoey, and the openness with which increasing numbers of them are openly living in Thai society. Nonetheless, while this country's legal system does not restrict katoey from living and working in a cross-gendered manner, at the same time it also regulates less visible, but no less vital, aspects of their lives.

 

Transsexual surgery and the law

The most serious problem is faced by post-operative male transsexuals, in that they are still seen as men under the Thai law. Although the first reported sex change operation in Thailand was occurred in 1972, after all these years it still remains impossible for transsexuals to change their sex on documents such as passports, ID cards, and registration records. There have been only two cases in which transsexuals have petitioned the government to allow them to modify documents. The first instance occurred in 1972. A post-operative transsexual in Khon Kaen province sought to have the sex modified on her household registration forms from male to female. However, the Interior ministry refused her request, stating that "male or female characteristics have to comply with nature and the physical facts at birth. They are not something which can be acquired later as the result of an operation. Additionally, a person's legal sex is entirely based on genetic and chromosomal factors. It should be noted that sex-change operations are not endorsed by any law. However, if the plaintiff insists on having his documents changed, he is advised to submit his case to the courts" ( quoted in Rakkit 1997). This person subsequently decided to abandon the petition.

The next case actually went to court. Chumpol Silapaprajamphong submitted her application to change documents to both the Civil and Appeal courts. However, her case was turned down by both courts, based on the Supreme Court's ruling that an individual's sex is determined by genetic and chromosomal ingredients alone. The Court argued as well that according to the dictionary (specifically the 1950 edition published by the Thai Royal Academy), a woman is defined as a person who can deliver a baby (Rakkit 1997). Therefore, male transsexuals are precluded from claiming that identity, regardless of how complete their surgery might be.

 

Transsexuals and rape

Because they are considered under the law to be men, postoperative transsexuals - as well as katoey in general - are not protected by Thai laws relating to rape. This is due to the wording of Section 276 of Thailand's Penal Code. It defines a rapist as follows: "Whoever has sexual intercourse with a woman who is not his wife, against her will, by threatening her by any means whatever, by carrying out any act of violence, or by taking advantage of the fact that the woman is unable to resist". Accordingly, whether a transsexual is sexually violated either vaginally or anally, this particular law will not apply to her case, because she is still legally a man.

The only legal option for a transsexual in this matter would be to press charges of physical assault. The penalty for a person convicted of rape as opposed to physical assault is considerable. The former carries a prison term of between four and 20 years and/or a fine of Bt 8,000 to Bt 40,000. On the other hand, a person convicted of the latter faces a maximum prison term of two years and/or a maximum fine of Bt 4000 (Rakkit 1997).2

The rape law cited above has suffered severe criticism from Thai feminists, as it discounts the possibility that a wife may be forcibly sexually violated by her husband. At the present time, a proposal to amend this law has already been submitted to Parliament. The amendment would broaden the definition of rape to include the vaginal/anal forcible penetration of either a male or female, married or not. As of Spring 1999, this amendment had not yet been promulgated, and it is feared by some that it may end up languishing in its present condition for quite some time (Virada Somsawadi, personal communication).

 

Transsexuality as mental disorder: implications for legal and human rights issues

Together with the legal issues discussed above, psychological discourses have also played a role in affecting the lives of katoey. Mental health and medical practitioners, as well as government officials, generally view transgenderism as a psychological illness. This view has only rarely been challenged, a task made all the more difficult because of the lack of any kind of lobby group for transsexuals.

Under the current legal system, Thai government officials are permitted, with impunity, to take away the human rights of katoey. Consider, for example, the military draft. Registration at 18 years of age is compulsory, and at 21 every man must report at a specific date for selection into the armed forces. At this time, men are examined by an army doctor. Those who are deemed fit take part in a lottery to determine if they will actually serve for the two year term. Katoey with breasts are automatically disqualified from taking part in the lottery because of their advanced degree of feminization. According to Col Thanadol Phaochinda, katoey suffer from "a disease which causes a serious and permanent mental problem" (quoted in the Bangkok Post 1999).

This discharge carries lasting consequences. Due to the assumed connection between transgenderism and psychological disorder, a katoey dismissed from the conscription lottery becomes the recipient of an official notice which states the reason for her inability to serve in the military in terms of mental illness. This paper becomes part of the katoey's permanent record, and she is required to produce it when applying for employment in certain work sectors, such as government or business (Rakkit, personal communication).

A second example took place in late 1996, and concerns government-sanctioned discrimination against katoey. At that time, Rajabhat Institute, the national teachers' college, announced a ban against entering students who were katoey. The impetus for this public declaration (as it turned out, the ban had already been implemented, albeit informally, for several years on the school's 36 campuses) was a murder case which occured in Chiang Mai, a large city in northern Thailand. An education student, who happened to be transgendered, murdered an acquaintance during an argument, and disposed of the body by cutting up and distributing the pieces in various locations. This case produced a great deal of sensationalistic coverage by the press. Newspapers in particular highlighted the murderer's transgenderism, and took to proclaiming that katoey in general were violent and mentally unbalanced. Officials from Rajabhat, as well as members of the Ministry of Education, argued that katoey were poor role models for children, and therefore must not be permitted to become teachers.

The news of the ban sparked a wave of protests. Significantly, katoey were unable to organize to fight this attack on their human rights. Instead, international gay and lesbian rights groups, as well as Thai feminist NGOs, led the fight against the Rajabhat's decision. An ironic twist was that the Thai side of the demonstrations was led by Anjaree, a group devoted to fighting for the rights of lesbians. As it happened, this organization was the best equipped to mobilize resources to publicly address the issue of the ban.

Eventually, the teacher's college its dropped its prohibitory policy against katoey, but not before claiming that it was working to develop a psychological test that would weed out entering students who were "mentally unfit" (a category which presumably includes people who are transgendered).

The examples of the military draft and the national teacher's college ban illustrate the vulnerability of the Thai transgendered population. Their human rights can be taken away at any time, leaving them little recourse to the law.

 

The role of the new Thai constitution

In October 1997, Thailand promulgated its most recent constitution. Nicknamed "The People's Constitution", the finished document reflected the input of men and women from various sectors and levels of society. For the first time in its history, the Thai government had made the effort to involve members of society typically excluded from such policy-making.

Section 30 of the new constitution reads, in part, "All persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, physical or health condition, or personal status. . . shall not be permitted. . ."

However, laws which will protect the human rights of katoey did not automatically spring into being when this constitution was enacted. Instead, a plaintiff who believes that his/her human rights have been violated because of their transgenderism must first bring their individual case to court, and then make reference to the new constitution. In other words, until cases involving katoey start getting brought to court, human rights abuses will continue, regardless of what is written in the constitution. Thus, if the legal situation of katoey is to change, several things need to happen.

To begin, Thai government officials must be better educated about transgenderism. The currently favored medical model which views katoey as suffering from a debilitating mental disorder is based on out-moded and dis-credited Western psychological theories from the 1950s and 60s (See Jackson 1996). The endorsement of this explanation provides institutions such as the military and the national teacher's college with the justification for biases against katoey.

Reporters need to learn more as well. The Thai mass media also plays a significant role in disseminating misleading information about transgenderism. For instance, newspaper and magazine articles about katoey typically quote doctors from the medical and mental health professions. These "experts" tend to describe katoey in stereotypic terms, and view the etiology of transgendered behavior in a simplistic manner (for example: too much mother, not enough father).

Education about transgendered issues begins with seminars, press conferences, conferences, and books. Increased data about this topic means that officials or reporters can move beyond previously entrenched one-side source material. A continued effort to make information available about different aspects of transgenderism to different sectors of society will also serve to weaken government or media claims that "The" cause of transgenderism is so-and-so, or that "all" katoey have such-and-such personalities. But who will actually be distributing this new information, and from where will it come?

 

Conclusion: Addressing the future

First, it will be necessary to create a network or non-governmental organization (NGO) consisting of katoey who are willing to actively engage with the public and fight for changes in the Thai law. Lesbians have already done it, with Anjaree. This group is dedicated to educating the public about women who love women, and publicly challenging discriminatory and misleading media representations about lesbianism and homosexuality in general. Anjaree also functions as a support system and social network as well. Moreover, its small but widely distributed magazine, Anjareesan, allows members of the group to produce discourses about lesbianism in their own words. Previously, the only information available to the general public about lesbianism was produced by the mass media, and saturated with the voices of "authorities" such as doctors and professors, rather than lesbians themselves. By following the model of Anjaree, katoey can begin to take their destiny into their own hands, instead of leaving it up to unsympathetic parties.

Next, a lobby group made up of plastic surgeons should be formed to press for changes regarding the documentation of the sex of transsexuals. Likewise, a lobby group composed of lawyers could address issues such as the current legal definition of rape which excludes katoey. Groups such as these could be instrumental in influencing both government policy and public opinion concerning katoey. These groups could also provide the much needed support for a katoey who decides to take her case to court. In addition, both groups would be able join forces with human rights and feminist groups. For instance, any addition to the women's voices already opposing the current rape law would only strengthen that campaign.

It is only through formal organization that katoey and their supporters can begin to effectively address the problematic status of transgendered people in Thai society. Until that occurs, katoey will be second-class citizens, particularly under the law. But there are promising signs of change. In Chiang Mai, a large city in the north, there is talk among katoey bar-workers of forming an NGO. At the same time, across town, a group of upwardly mobile professional katoey tired of backward public attitudes are discussing the same thing. And in Bangkok, Dr. Preecha, the city's preeminent sex-reassignment surgeon, tells me that he has noticed a change among his ex-patients. More of them are joining informal support groups. Less are willing to quietly endure their dissatisfaction with their continued classification as men.

These are hopeful signs. The sooner an organization for katoey joins the nation's 3000 NGOs, the sooner will the idea of equality for all under the law even begin to approach reality.

 

Notes

1For examples of Western writers who state that transgenderism is accepted in Thai society, see Jackson (1995: 188), Cummings (1997: 135), and Hammer (1997: 21). I use the term "transgendered men" in the title of this essay in order to indicate that I am concerned with biological males who express varying degrees of transgenderism. However, because some katoey identify as women, it would be inappropriate to continue to label them with an epithet which includes the word "man". Therefore, for the remainder of the paper, I will use the indigeous term "katoey". I recognize that it is problematic to use a single term to refer to disparate forms of transgenderism. However, this discussion will have to take place at another time. back

2. Before July 1997, 1 dollar = 25 baht. Since then the baht has been devalued, and its exchange rate has fluctuated. At the time of this writing (spring 1999), 1 dollar = 37 baht.back

 

References

Bangkok Post (1999) 'Conscription: Army men to show respect', March 19, p.2.

Cummings, Joe (1997) Thailand: A Lonely Planet Travel Survival Kit. Oakland, California: Lonely Planet.

Hammer, Damon (1997) 1998 Thai Scene Gay Guide . Swaffham, England: The Gay Men's Press.

Jackson, Peter (1995) Dear Uncle Go: Male Homosexuality in Thailand. Bangkok: Bua Luang Books.

Jackson, Peter (1996) 'Thai Academic Studies of Kathoeys and Gay Men: A Brief Critical History', In Proceedings of the 6th International Conference on Thai Studies, Theme III: Family, Community and Sexual Subcultures in the AIDS Era., pp. 83- 101. Chiang Mai, Thailand, October 14-16, 1996.

Matzner, Andrew (1998) 'Analyzing 'Acceptance': Thai Social Attitudes Toward Transgendered Men', unpublished paper.

Matzner, Andrew (1999) 'Roses of the North', The Bangkok Post, January 9, Outlook Section p.1.

Rakkit, Rattachumpoth (1997) 'The Invisible Women', The Nation, March 19, Focus Section p.1.

 

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