January 23, 2025 was an historic day for Thailand and Southeast Asia. As a result of the new Thai law amending the longstanding Thai Civil and Commercial Code (taking effect 120 days after its royal promulgation in the final months of 2024), same sex couples are able to register their marriage and enjoy full rights and duties as spouses without gender discrimination. This is also the first time for a Southeast Asian country. It is a great cause for celebration, cherishing love and friendship in their gender diversity. It is also time to prospect for the ‘next steps’.

In effect, nearly seventy sections of the Civil Code have been amended to delete binary wording such as man-woman, husbands-wives, male fiancé-female fiancée. Instead, gender neutral terms are now in place; those terms include ‘persons’ (or depending on the translation, ‘individuals’), ‘spouses’, and ‘engaged couples’. There is now equal footing for all in marital matters, irrespective of gender. This pertains to engagement and marriage relations, in particular the interdependence between couples in looking after each other, property related ownership, dissolution of marriages and engagements, adoptions and inheritance. The new law has also raised the minimum age of marriage from the previous 17 years old to 18 years old.

In such setting, there remain some interesting queries which deserve clarification. Does the new law benefit same sex foreigners who wish to register their marriage in Thailand? Has the binary categorisation of man-woman been excised completely or not under the new law? Does the law apply to the four Southern provinces of Thailand where Islamic law prevails on family and inheritance in regard to Muslims ? How many other laws have to be reformed relating to gender discrimination after January 23?

Answers can be provided to most of those questions as follows. Yes, foreign couples, irrespective of gender, will be able to register their marriage in Thailand. However, foreigners have to provide proof that they are not already married. Of note is that bigamy is illegal in Thailand, although there is flexibility in relation to the four provinces mentioned.

There is residual binary categorisation even after the recent reforms. Section 1453 of the amended Code still stipulates that after the male spouse dies or after the dissolution of the marriage, the female spouse is not allowed to remarry another man until 310 days have passed. This is to prevent confusion in regard to possible pregnancy of the woman and related paternity questions. However, the woman can remarry if she is marrying the previous husband again; if she has already given birth; if there is evidence that she is not pregnant; or if there is a judicial order allowing the marriage.

The adjusted law excludes the four Southern provinces from their application and this follows the general legal situation which avoids overlap with Islamic law in that region; that specific law applies to the relationship between Muslim couples in their marital and family relationship.

As for forward-looking reforms, some 50 laws, ranging from nationality law to labour law, will have to be amended to delete the binary wording and replace it by gender-neutral terms. Two areas of Thai law need urgent attention: Surrogacy so as to respond to the desire of same sex couples to have children and gender identity recognition to enable transgender persons to affirm their gender and change their identification documents.

The Thai law on surrogacy dates from 2015. The law is called: The Protection for Children Born through Assisted Reproductive Technologies (ART) Act. Since that year, commercial surrogacy has been banned and this has affected especially foreign couples who wish to enter into a contract with Thai women, with the latter acting as surrogates. However, that law opened the door to ‘altruistic surrogacy’ whereby for humanitarian considerations, asking another woman to be a surrogate to enable a child to be born therefrom is possible subject to various conditions.

First, the couple seeking the surrogacy must have Thai nationality—or at least one spouse is Thai, married for three years before seeking the help of a surrogate. Based on the egg of the wife, the sperm of the husband or the embryo emanating from their fusion, the born child is considered to be that of the couple. Valid surrogacy is thus due to this mix: 1) egg of wife and sperm of husband; 2) egg of wife and sperm of donor, not of the husband; 3) sperm of husband and egg of donor, not of wife. The egg of the surrogate must not be used in the process. Second, the process is intra-familial; the surrogate must be a blood relative of one or other of the couple seeking the surrogacy, for instance, the sister of the latter. The surrogate cannot be the parents or children of that couple. However, altruistic surrogacy is only allowed in regard to the traditional couple of (male) husband and (female) wife. What is now needed is to reform that law so as to delete the binary classification to enable same sex couples to seek the help of a surrogate.

The other key law needed is a law to recognise gender identity, especially linked with transgender persons. Importantly, while sex is a biological condition assigned at birth, gender is a social construct based on autonomy-cum-identity, not based on biology. Key issues include the following. Does a person need to have a medical operation/surgery to prove change of gender? Does the person need to go through counselling? Does the person need a certificate from a psychiatrist to affirm the gender identity? What is the minimum age for a person in this case?

International trends provide some of the answers, although not everything is crystal clear. UN mechanisms advocate against coercive medical operation; gender identity affirmation should not depend on such operation. Gender identity is a natural state of affairs and not a pathological condition!

Several countries with a broad mind set, such as Argentina and Malta, do not require counselling or a psychological certificate for gender affirmation. However, internationally there is still no agreement on the minimum age for a person to affirm the preferred gender, with the related issue of access to medical assistance (such as hormone treatment and ‘puberty blockers’). The various draft laws in Thailand vary between 15 and 18 as the minimum age.

A sense of inclusivity, based on progressive, reasoned and constructive debate, is the preferred pathway, inspired by the spirit of ‘humanity in diversity’.

• —The Jakarta Post (Indonesia)/ ANN