Righting the wrong
Next Tuesday, the Administrative Court will rule on the landmark case brought by the Sexual Diversity Network against the Defence Ministry almost five years ago for labelling transgender conscript Samart "Namwarn" Meecharoen on her Sor Dor 43 military-dis
It is hoped that the court's decision will be made on the basis of human rights, equality and dignity rather than on the crude categorisation of multitudinous human diversity based on medical opinions, which fail miserably when it comes to the understanding of human sexuality and gender expressions.
It's worrying that the judge who summarised the case based his opinion on outdated medical opinions, which diminish the human dignity of transgenders (see last week's column). By stating that the "psychosis" label should only be applied to post-surgery transgenders (and not the pre-surgery plaintiff) the court will also repeat the same injustice as the military, albeit on different victims. Commenting on this, LGBT activist Timo Ojanen said, "It will be plain wrong because any psychiatrist can tell you that before one is allowed to have sex-reassignment surgery, one must prove precisely the opposite: that one is of sound mind - not psychotic."
The court can do much better in its final ruling simply by sticking to the international human rights laws, to which Thailand is a signatory, as well as our own constitution.
Article 30 of the 2007 Constitution protects individuals from discrimination on the basis of phet. Phet is a much broader term than "sex" and refers to sexual identity and gender diversity as well. According to the "Intentions of the Constitution of the Kingdom of Thailand," issued by the Constitution Drafting Assembly, "Differences in phet, in addition to meaning the differences between men and women, also denote the differences between individuals in sexual identity or gender or sexual diversity, which may be different from the phet in which the person was born. Consequently, the word phet already denotes the above meanings and the individuals within the above categories should not be discriminated against."
Article 2 of the Universal Declaration of Human Rights (UDHR) reads: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
As the Sor Dor 43 form is routinely required in the applications for jobs and post graduate studies, the military has violated Namwarn's human rights, including her ability to find work or continue her education. Thailand is under an international legal obligation to guarantee the right of "everyone to gain his living by work", as provided under Article 6 of the Covenant on Economic, Social and Cultural Rights, and the right to an education, as provided under article 13 of the Covenant, which recognises the right to education. By interfering with the petitioner's rights to work and study on the basis of her gender identity, Thailand has failed in its obligation to respect the right to work and education under international law.
As the military has already promised to not appeal court decision, we are now pinning our hopes on the court that Namwarn's paper will be corrected to contain the term "incongruity between current gender and at-birth sex" - a wording that was concluded as being acceptable to both the military and LGBT community.
