Draft legislation to criminalise 'sexual deviant behaviours' in the Sangha is discriminatory and violates the Buddha's teaching
The draft law to promote and protect Buddhism now being considered by the National Legislative Assembly proposes to criminalise monks who intentionally or negligently ordain those “with sexually deviant behaviours” (Article 40), as well as monks or novice monks “with sexually deviant behaviours who by any actions disgrace Buddhism” (Article 41).
Although “sexually deviant behaviours” is legally ill-defined, it is a familiar term to Thai lay people and commonly refers to lesbians, gays, bisexuals and transgenders. The fact that Article 41 fails to specify the “disgraceful” actions makes it clear that its target is not the actions, but the monks or novices who are or are perceived to be gay, bisexual or transgender. Because hetero-normative monks who commit these “disgraceful” actions would not be punished under this provision, the article must be dropped on grounds that it is discriminatory.
The drafters may argue that this group of people should be placed under special scrutiny because they should never be ordained to begin with – as reflected in Article 40 – citing as evidence the Buddha’s banning of “pandakas” from receiving ordination after one pandaka reportedly went around asking to be “defiled” by men. However, to induce that “pandakas” refer to male-born persons with same-sex desire, based on this passage in the Vinaya (monastic rules) taken out of context, is a logical fallacy. Witnessing one cat eating carrot doesn’t mean that all cats eat carrot.
Meaning of ‘pandaka’
The exact meaning of the term “pandaka” has long been unclear. However, this author’s article “Semen, Viagra and Pandaka: Ancient Endocrinology and Modern Day Discrimination” published in the Journal of the Oxford Centre for Buddhist Studies conclusively shows that it broadly refers to men with impotence and the inability to sire children, and not to “same-sex desire”.
The key lies in the opening passage of the second chapter of the Kathavatthu in the Abhidhamma section of the Buddhist canon, which categorically describes pandakas as unable to emit semen. This characterisation is supported by ancient Indian medical treatises such as the Caraka Samhita and the Susruta Samhita, as well as legal treatises such as the Naradasmrti and the Law of Manu.
Why did the ability to emit semen matter? In ancient India, having sons was of utmost importance. The Buddha laid down the first Vinaya rule to prohibit monks from sexual relations when a monk was asked by his parents to have sex with his former wife to sire offspring and thereby prevent their property being seized by the state. Sons perform rites for their deceased fathers. It’s believed that those who die without sons will go to a particular hell.
In ancient India, as in other pre-modern societies, the central purpose of sex was procreation. Being able to emit semen, therefore, was the paramount test of manhood.
The 5th-century monk Buddhaghosa expounded on five types of pandakas. The archetypal napumsaka pandakas are those who lack sexual organs from birth. These “sexless” individuals complete the Vinaya’s four sex categories along with males, females and ubhatobyanjanakas – those born with both male and female sex organs.
Disenfranchised by society as sexless and therefore sonless, many napumsaka-pandakas must have resorted to prostitution to survive. Reviled as promiscuous and lascivious, they in turn suffered discrimination as a group. (The pandaka responsible for the ban was likely of this type.)
The other four types are an extension of the same logic. Semen deficiency leads to son-lessness. Therefore, the seedless are only as good as the sexless and are similarly categorised as pandakas.
The definition of opakkamika (“by-assault”) pandakas as those whose seeds are annihilated by assault or violence will not surprise anyone in Thailand, where wives have been known to cut off their philandering husbands’ members.
More curiously, Buddhaghosa described asitta (“sprayed”) pandakas as those “whose sexual burning is assuaged by taking another man’s member in his mouth and being sprayed by semen” and usuya (“jealous”) pandakas as those “whose sexual burning is assuaged by watching other people having sex”. Although it’s tempting to equate the former with same-sex desire, ancient medical treatises diagnose both types as suffering from underdeveloped capacity to emit semen due to their parents’ deficiency. As a result, they need the said stimulation in order to copulate with women. Interestingly, the Kurundi Atthakatha – the commentary on the Vinaya – permits both these types to receive ordination.
What has long been most perplexing, however, is the bizarre description of pakkha (“fortnight”) pandakas who are pandakas during the waning half of the lunar month but whose sexual burning is assuaged during the waxing half. If one equates pandakas with homosexuals or transgenders, how can they be understood to change back and forth every fortnight?
The description only makes sense when these pandakas are identified with those suffering temporary impotence, which ancient medical treatises link to the Indian mythology of why the moon waxes and wanes. According to the myth, the Moon god has 28 wives – one for each night of the lunar month – and his sexual prowess and brightness rise and fall throughout the month due to semen depletion and recovery. (Another name for semen in Pali is “sukka”, which also means brightness.) The Kurundi Atthakatha permits this type of pandakas to be ordained during the “bright” fortnight, that is, when free from impotence.
The Buddhist canon
The inability to emit semen has nothing to do with same-sex desires. In the Buddhist canon itself, the word “pandaka” was not mentioned nor the ban applied in relation to the novice monks Kandaka and Mahaka who were caught “defiling” each other, venerable Vakkali who was attracted to the appearance of the Buddha, or venerable Soreyya whose sex “changed” twice.
Since for ancient Indians the hallmark of manhood is the ability to emit semen, a male-born person’s attraction to another man, or gender non-conformity, is irrelevant. One is a man and not a pandaka as long as one has the ability to emit semen and, by extension, the ability to sire children.
Therefore, the modern-day equivalents of pandakas are not gays or transgenders, but certain inter-sex persons who were born with neither male nor female sex organs, and men suffering permanently or temporarily from impotence whether through physical impairment or physiological conditions. The latter potentially disqualifies the significant proportion of the male population that takes aphrodisiacs and viagra.
As a result, the discriminatory articles 40 and 41 of the draft bill targeting gays, bisexual men and transgenders cannot claim any basis in Buddhism. If any monk shall be punished at all, the offence must be precisely prescribed by the Vinaya – such as is the case with the celibacy rule – and the punishment must also be carried out strictly according to the Vinaya – regardless of the monk’s sexual orientation or gender identity.
In fact, the whole idea of using laws to regulate the Sangha must be questioned. While alive, the Buddha never asked kings or states to interfere with the governance of the Sangha. If anything, he took measures, such as the rule not to ordain soldiers, to ensure non-interference by the state. To exert more state control over the Sangha with ill-conceived laws will only increase the Sangha’s dependence on state power at the expense of its internal strength, to the detriment of Buddhism as a whole.
PAISARN LIKHITPREECHAKUL is a Buddhist scholar with an MA in International Law and Human Rights from the UN-mandated University for Peace, Costa Rica. He has written for the Journal of the Oxford Centre for Buddhist Studies, and is a board member of the Foundation for SOGI Rights and Justice.