Teerarojjanapongs I and Champathong II v. The Governor of Chiang Mai Province, Chiang Mai Administrative Court of Thailand (5 February 2010)
The plaintiffs filed a complaint to the Administrative Court challenging a regulation that prohibited participants in a parade from wearing attire that expressed “sexual deviance.”
Each year the Province of Chiang Mai held a flower festival. As part of the festival there was a competition of festival floats. In 2009, the Governor of Chiang Mai issued regulations that required that women and men sitting on the floats had to dress properly and prohibited attire expressing sexual deviance. Plaintiffs filed a complaint against this provision of the regulations.
Whether a regulation prohibiting the wearing of attire that expressed “sexual deviance” was unconstitutional.
Constitution of Thailand, Article 26 (human dignity) and Article 30 (equality and equal protection).
Flower Festival, Chiang Mai Province, 34th time, year 2553, Article 4.
Regulations for arranging Flower Festival floats joining the Flower Festival competition in the Chiang Mai.
Reasoning of the Court
The plaintiffs argued that the challenged provision would prevent persons “who are neither men nor women” (transgender individuals) from participating in the flower festival floats parade. The plaintiffs argued that the regulation was unconstitutional because it constituted unfair discrimination based on sexual difference and did not respect human dignity.
The defendant, on the other hand, argued that the ban on attire expressing sexual deviance had actually been in force each year since 2007 but, in practice, the defendant’s officers had never prevented “persons who have sexual diversity” from participating in the parade. This was because there had never been problems related to inappropriate or immoral attire. The defendant also argued that the ban was intended to be implemented solely within the framework of the flower festival beauty competition.
The Court first noted that three conditions had to be satisfied before it could issue a restraining order. (1) Success must be likely on the merits. (2) Failure to issue an order would cause severe injury to the plaintiff that would be difficult to amend afterwards. (3) Issue of a restraining order would not pose problems to the administration of State bodies or the provision of public services.
The Court then applied these conditions to the case. With regard to the first, the Court analysed the constitutional provisions concerning fundamental rights and freedoms and the legitimacy of grounds for their limitation.
In particular, Article 29 provided that the rights and freedoms guaranteed in the Constitution could be limited by law but only to the extent necessary and in a way that did not violate the essence of the right or freedom involved. Article 30 stated that all individuals were equal before the law and enjoyed equal legal protection. Unjust discrimination was therefore forbidden.
The Court noted that the challenged provision directly limited the rights of persons wearing certain kinds of dress to participate in the parade. In the Court’s view, this had a broad impact and denied the equal rights of “persons who have sexual diversity”. The challenged provision was therefore likely to be unlawful.
With regard to the second condition for issuing a restraining order, the Court held that if the regulation remained in force, persons dressing contrary to their gender could be prevented from participating in the parade. This would constitute an injury that could not be amended after the event had finished.
As for the third condition, the Court noted that the defendant had admitted that in the flower festival parade some participants had always dressed in a way that did not correspond to their ”natural gender”, but that there had been no instances of inappropriate attire. Therefore, preventing the authorities from implementing the challenged provision would not obstruct public administration or the provision of services.
The Court issued a temporary restraining order preventing the regulation from taking effect.