Thailand provides the warmth of a home to a range of Pride activities to raise the profile of LGBTI (lesbian, gay, bisexual, transgender and intersex) persons, in addition to other aspects of gender diversity.
The country is equally a portal to global change, especially to advocate the decriminalisation of consensual same sex relations. Regrettably, approximately 65 countries still criminalise such relations, inflicting pain and suffering on couples wishing to enjoy intimate relationships anchored on love and friendship.
The global situation has improved on some fronts, but it has also backtracked. For instance, on a welcome note, a southern neighbour of Thailand has now reformed its old law against gay relationships, while several countries in South Asia have done the same. By contrast, a major country of the Association of Southeast Asian Nations (Asean) recently started to enforce a new law against extra-marital sexual relations and cohabitation, affecting both heterosexual and homosexual couples.
Most of the countries with a blinkered outlook on same sex relations are in Asia and Africa. Even more troubling is the development in an African country, which has proposed a new law to incriminate the fact that a person is gay, and there is to be mandatory reporting of the person by third parties to the authorities. This draconian development is inhumane and more than regressive, trespassing not only on the private act of "doing" but also on the personal fact of "being". This is a key violation of international human rights law and must be opposed.
For the purpose of transparency, the various criminal laws affecting same sex relations can be identified as falling into some six categories. First, there are the old colonial laws -- usually the infamous "section 377" of the criminal law/code prohibiting "carnal intercourse against the course of nature". While many such laws have now been reformed, a number remain. Three members of Asean still have these provisions on the books.
Second, there are the newer criminal laws such as the Criminal Code, which incriminate illicit acts, "acts against nature", "homosexuality" and "aggravated homosexuality". Lesbianism is sometimes castigated expressly. Some of the more severe sanctions can result in the death penalty.
Third, there are various laws on national security and constraints on freedoms which impact advocates of gender diversity. This is now linked with laws classifying the latter as propaganda, ideology and/or extremism. The range varies from national security laws, such as the computer crimes law, to laws vetting the operations of non-governmental organisations for receiving foreign funding. There are also laws against cross-dressing, usually a situation where a male person dresses as a female person. The latter laws impinge on the quest for gender expression.
Fourth, religious laws have been invoked increasingly in some countries to narrow the space for LGBTI. The issue pertains to how various religions are interpreted negatively against these groups. Regrettably, this can lead to various forms of corporal punishment, driving people underground and undermining the spirit of empathy, which should be at the heart of all spiritual beliefs. A quandary relates to which version of the so-called religion should prevail, and who calls the shots -- the liberal or the illiberal?
Fifth, there is the newer domain of digitalisation with the gamut of new laws on cyberspace, which might give rise to surveillance, social profiling and bias in relation to gender diversity. While most countries now have laws on personal data protection, there are also broad exceptions manipulated by non-democratic systems and cloistered minds to pry on the lives of LGBTI people where they are seen to be non-conformist, with algorithms targeting them for scrutiny.
And sixth, the advent of artificial intelligence (AI), accompanied by various laws or policies favouring control by the state and its business partners, or unethical self-automated systems, might lead to distortions, discrimination and other abuses, especially if the data sets training the AI are derived from reactionary sources.
Fortunately, there are elements of international human rights law which help to overcome those pitfalls. Many countries, including Thailand, are parties to the International Covenant on Civil and Political Rights, which is premised on the principle of non-discrimination and the right to privacy. In the well-known case of Toonen v Australia, the international Human Rights Committee found that an old colonial law prohibiting same sex relations was in breach of both the principle of non-discrimination and the human right to privacy under the Covenant.
International human rights advocates have gathered to advance the state of International Law by adopting the "Yogyakarta Principles" and the "Yogyakarta Principles plus 10 (YP+10)" -- Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles. These principles highlight various preferred axioms and practices, such as respect for sexual orientation and gender identity.
They address the issues of gender expression and sex characteristics. They propose rules to recognise gender identity (gender being different from biological sex) and protection of intersex persons from coercive medical procedures in breach of their sex characteristics. Interestingly, the principles assert that there is no need for gender markers (unless proven otherwise).
Concerning those criminal laws against same sex relations, there is an urgent need to desist from applying them, with the aim of abrogating them fully. On another front, some new laws may be required. For example, regrettably, several countries impose conversion therapy on gays, resulting in coerced psychological procedures to change their sexuality. As the preferred direction, an increasing number of countries are adopting laws to prohibit the practice.
Laws against incitement to hatred may also be needed to prevent provocation leading to discrimination and violence, as well as to set guardrails for the AI to forestall discrimination and abuse against LGBTI.
Of course, humane laws are but one of the several entry points to be advocated from the angle of intersectionality. That conjunction acknowledges that a person may have several "statuses", not only as LGBTI but also as humans with multiple vulnerabilities, such as economic/social/political condition, age, disability and displacement.
A holistic approach thus calls for other humanising measures such as good policies, practices, education, remedies and responsible technologies, as part of the rainbow kaleidoscope -- replete with empathy, mutual respect and shared understanding.
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