RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE IN INTERNATIONAL LAW AND VIETNAMESE LEGISLATION

1.2.1 Human rights violations against lesbian, gay, bisexual, transgender, and intersex people based on sexual orientation and gender identityError!. This thesis also focuses on some par

HO CHI MINH CITY UNIVERSITY OF LAW INTERNATIONAL LAW FACULTY

BÙI THỊ GIÁNG HƯƠNG

STUDE NT CO DE: 3260037

RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE

IN INTERNATIONAL LAW AND VIETNAMESE LEGISLATION

BACHELO R THESI S ACADE MIC YE A RS: 2007 -2011

SPECIALTY SUPERVISOR: LLM NGÔ HỮU PHƯỚC LANGUAGE SUPERVISOR : LLM PHAN NGỌC TÂM

HO CHI MINH CITY – 2011

I would also thank all who have given their assistance to me in completing

my thesis

And I save my deepest gratitude to my family in supporting me

Ho Chi Minh City, 2011 Bùi Thị Giáng Hương

LIST OF ABBREVIATIONS

CRC Convention on the Rights of the Child

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and

Cultural Rights

ICCPR-OP1 Optional Protocol to the International Covenant on

Civil and Political Rights

ICESCR-OP Optional Protocol to the International Covenant on

Economic, Social and CulturalRights

LGBTI Lesbian, gay, bisexual, transgender and intersex

SSM Same-sex marriage

SRS Sex reassignment surgery

UDHR Universal Declaration of Human Rights

UNHCR United Nations High Commissioner for Refugees

TABLE OF CONTENTS

Introduction Error! Bookmark not defined

Chapter 1: Theoretical issues of rights of lesbian, gay, bisexual, transgender

and intersex people in international law and Vietnamese legislationError! Bookmark not defined

1.1 General understanding of lesbian, gay, bisexual, transgender, and

intersex people Error! Bookmark not defined

1.1.1 General concepts and characteristics of lesbian, gay, and bisexual

people Error! Bookmark not defined

1.1.2 General concepts and characteristics of transgender peopleError! Bookmark not defined 1.1.3 General concepts and characteristics of intersex peopleError! Bookmark not defined

1.2 The issue of protecting rights of lesbian, gay, bisexual, transgender and

intersex people in international law and Vietnamese legislationError! Bookmark not defined

1.2.1 Human rights violations against lesbian, gay, bisexual, transgender, and

intersex people based on sexual orientation and gender identityError! Bookmark not defined

1.2.2 International and national legal basis to protect rights of lesbian, gay,

bisexual, transgender, and intersex people Error! Bookmark not defined

Chapter 2: Rights of lesbian, gay, bisexual, transgender, and intersex people

in international law and Vietnamese legislation Error! Bookmark not defined

2.1 Rights of lesbian, gay and bisexual people Error! Bookmark not defined

2.1.1 In international law Error! Bookmark not defined

2.1.2 In Vietnamese legislation Error! Bookmark not defined

2.2 Rights of transgender people Error! Bookmark not defined

2.2.1 In international law Error! Bookmark not defined

2.2.2 In Vietnamese legislation Error! Bookmark not defined

2.3 Rights of intersex people Error! Bookmark not defined

2.3.1 In international law Error! Bookmark not defined

2.3.2 In Vietnamese legislation Error! Bookmark not defined

2.4 Recommendations for the protection of rights of lesbian, gay, bisexual,

transgender and intersex people in international aspect and in Viet NamError! Bookmark not defined

2.4.1 In international aspect Error! Bookmark not defined

2.4.2 In Viet Nam Error! Bookmark not defined

Conclusion Error! Bookmark not defined Bibliography Error! Bookmark not defined

In many countries, their right to life, right to security of person and right to

freedom from torture and cruel, inhuman and degrading treatment and punishment have been relentlessly violated The same situation usually happens

to their right to respect for privacy, right to freedom of opinion and expression, right to freedom of peaceful assembly and association, right to found a family, right to work and other civil, political, economic, social and cultural rights Nowadays, it is known that in 78 countries laws criminalizing same-sex relations between consenting adults still exist1, which is affront to the human rights principle of equality and non-discrimination Moreover, nine countries even impose the death sentence to homosexual people.2 In Vietnam, LGBTI persons often experience contempt, defamation, and discrimination; same-sex marriages are not legally recognized, many transsexuals live without lawful acceptance to the change of their gender in legal papers; the provisions regulating the gender re-determination of intersex people are not fully complete in terms of human rights

Meanwhile, the protection of LGBTI people‟s human rights in Vietnam has

not been received adequate attention3, which leads to the result that their rights are not entirely respected and guaranteed Besides, the 37th session of the Standing Committee of the National Assembly on 4/1/2011 did identify that: one

1

Ending violence and criminal sanctions based on sexual orientation and gender identity: Statement

by the High Commissioner, 2010, available at http://www.unhchr.ch/ (last visited May 26, 2011) 2

They are Afghanistan, Iran, Nigeria, Pakistan, Chechnya, Mauritania, Saudi Arabia, Sudan and Yemen See Declaration of Montreal 2006, available at http://www.declarationofmontreal.org/declaration/DeclarationofMontreal.pdf (last visited May 5, 2011)

3

Trần Ngọc Đường (2010), Về Tổ chức bộ máy nhà nước và pháp luật về quyền con người theo

Nghị quyết 48 của Bộ Chính trị, Tạp chí Nghiên cứu Lập Pháp, số 15 (176) 8/2010, p 8

of the major tasks of the Congress in the period between 2011 and 2020 is to develop and improve the legal protection to homosexual, transgender and intersex persons – the specific groups in society.4As a consequence, the author

did choose the theme: "Rights of lesbian, gay, bisexual, transgender and intersex

people in international law and Vietnamese legislation" for the graduation thesis

with a desire to make a small contribution to the building and improving of laws protecting human rights of these individuals

2 Subjects and delimitation of the research

The subjects of this research are the LGBTI persons‟ right to the universal enjoyment of human rights without discrimination based on sexual orientation and gender identity This thesis also focuses on some particular issues of LGBTI persons such as the right to marry and found a family of lesbian, gay and bisexual people, the recognition of reassigned sex of transsexuals, and aspects of human rights with respect to the sex reassignment surgery that could amount to genital mutilation to intersex people around the world and the gender re-determination in Viet Nam This thesis is done on the basis of researching legal provisions of some core international and regional human rights treaties as well

as those of domestic legal instruments

3 Research situation and new issues

In Vietnam, the issue of the rights of lesbian, gay, bisexual, transgender and

intersex persons have been studied in the following articles: Thai Thi Tuyet Dung (2010), "Mot so van de ve viec thua nhan quyen cua nguoi dong tinh o Viet Nam"; Duong Hoan (2010), "Quyen ket hon cua nguoi dong tinh"; Cao Vu Minh (2010), "Quyen con nguoi duoc song theo dung gioi tinh cua minh", in the

Record Summary of Scientific Conference “Vai tro cua Nha nuoc trong viec dam

bao quyen cua cac nhom xa hoi de bi ton thuong” held by the Administrative

Law Faculty, HCM City University of Law on December 4th, 2010; Do Van Dai and Dao Thi Nguyet (2010), "Nhung hau qua phap ly cua viec xac dinh lai gioi tinh trong phap luat Viet Nam", Journal of the People's Court, No (24) 12 / 2010;

Mai Thi Ngoc Anh (2010), Sexual minorities rights and the perspective of

Vietnamese Legislation on this issue, Bachelor thesis, Ho Chi Minh City

Overall, the authors of these journal articles, scientific research topics were

successful in the study of different aspects of the issue The author Thai Thi Tuyet Dung has brought the attention to general issues of gay rights in Vietnam.5

In his article, the author Duong Hoan did support the capacity for same-sex marriage (SSM) with specific reasons.6 The author Cao Vu Minh has pointed out the inadequacies of regulations on the gender re-determination of intersex people,

in the perspective of administrative law.7 The authors Do Van Dai and Dao Thi Nguyet have mentioned the right to change name, right to marry, rights and obligations between children and parents of persons who made gender re-determination.8 Ms Mai Thi Ngoc Anh has referred to lesbian, gay, bisexual and transgender people as sexual minorities, claiming that they are subjects of human rights and are suffering discrimination That author also studied some aspects of their rights in international law and Vietnamese legislation and proposed some recommendations such as recognizing their rights in law, raising awareness of the community, recognizing the legal status for same-sex couples and accepting sex change in Vietnam

Nevertheless, there has been no work which comprehensively addressed the

following issues: the right to the universal enjoyment of human rights without discrimination based on sexual orientation and gender identity of LGBTI people

as a group in international law and Vietnam‟s legal system; the regulation of the right to respect for privacy, the right to marry and found a family of LGBTI persons, and human rights of post–operative transsexuals; as well as human rights aspects in gender re - determination of intersex people These are new issues of subject, which inspire the author to research

4 Research methodology

5

Thái Thị Tuyết Dung (2010), “Một số vấn đề về việc thừa nhận quyền của người đồng tính ở Việt

Nam”, Kỉ yếu khoa học Vai trò của Nhà nước trong việc bảo đảm quyền của các nhóm xã hội dễ bị

tổn thương, do Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày 4 tháng 12 năm 2010,

pp 128-131

6

Dương Hoán (2010), “Quyền kết hôn của người đồng tính”, Kỉ yếu khoa học Vai trò của Nhà nước

trong việc bảo đảm quyền của các nhóm xã hội dễ bị tổn thương, do Khoa Luật Hành Chính Đại học

Luật TP.HCM tổ chức ngày 4 tháng 12 năm 2010, pp 134-138

7

Cao Vũ Minh (2010), “Quyền của con người được sống theo đúng giới tính của mình”; Kỉ yếu

khoa học “Vai trò của Nhà nước trong việc bảo đảm quyền của các nhóm xã hội dễ bị tổn thương, do

Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày 4 tháng 12 năm 2010, pp 110-126 8

Đỗ Văn Đại và Đào Thị Nguyệt (2010), “Hậu quả pháp lý của việc xác định lại giới tính trong pháp

luật Việt Nam”, Tạp chí Tòa án nhân dân, số (24) 12/2010, pp 14-16

In order to achieve the research objectives, the author uses the methodology

of dialectical materialism and the basic methods in scientific research, including but not limited to: searching, collecting information and documents; statistics, classification and systematization of information and data; analysis, synthesis and comparison of information and data Furthermore, the author also uses the special measure in researching international law which is the comparative method to achieve the goals and tasks set out by the study

5 The composition of the subject

In company with the introduction, the table of contents, the list of abbreviations, the conclusion, and the bibliography, this thesis consists of two chapters with the following structure:

Chapter I: General theoretical issues of rights of lesbian, gay bisexual,

transgender and intersex people in international human rights law and Vietnamese legislation This chapter shall give the answers to the questions: Who

are lesbian, gay, bisexual, transgender and intersex? What specific human rights issues do they experience? What is the legal foundation for the protection of their human rights?

Chapter II: Rights of lesbian, gay, bisexual, transgender and intersex people

in international human rights law and Vietnamese legislation This chapter refers

to international, regional and domestic legal sources with respect to rights of these people Then some specific measures including legal ones and societal, educational ones to protect human rights of these individuals around the world in general and in Viet Nam in particular shall be mentioned

- -

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CHAPTER 1: THEORETICAL ISSUES OF RIGHTS OF LESBIAN, GAY,

BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE

IN INTERNATIONAL LAW AND VIETNAMESE LEGISLATION

1.1 General understanding of lesbian, gay, bisexual, transgender, and intersex people

1.1.1 General concepts and characteristics of lesbian, gay, and bisexual people

In international law, lesbian, gay, bisexual have not been defined in any

international treaties other than in some human rights documents of the United Nations, in some regional legal instruments and in many countries‟ laws under the concepts of "lesbian, gay, bisexual" along with the concepts of “transgender” and “intersex” people In its work to protect the right of LGBTI people to seek in other countries asylum from persecution based on sexual orientation and gender identity, United Nations High Commissioner for Refugees (UNHCR) has

developed a Glossary of Key Sexual Orientation and Gender Identity-Related

terms 9(from now referred to as the Glossary) to bring a consistent understanding

on the human rights issues faced by those people

In the Glossary, homosexual is defined as a person whose enduring physical,

romantic and/or emotional attraction is to people of the same sex, including both

lesbian and gay Bisexual is referred to as an individual who is physically,

romantically and/or emotionally attracted to both men and women And bisexuals need not have had equal sexual experience with both men and women In fact, they need not have had any sexual experience at all to identify as bisexual

Therefore, lesbian, gay, and bisexual people are considered to have different

sexual orientation from heterosexual people whose enduring physical, romantic

and/or emotional attraction is to people of the opposite sex Sexual orientation

refers to “each person‟s capacity for profound emotional, affectional and sexual

attraction to, and intimate and sexual relations with, individuals of a different

9

See UN High Commissioner for Refugees - The UN Refugee Agency, Discussion Paper: The

protection of lesbian, gay, bisexual, transgender and intersex asylum-Seekers and refugees,

September 22, 2010, available at: http://www.unhcr.org/refworld/pdfid/4cff9a8f2.pdf (last visited July 12, 2011)

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gender or the same gender or more than one gender”10 Sexual orientation is usually defined as consisting of heterosexuality, homosexuality, and bisexuality

In Vietnamese legislation, lesbian, gay and bisexual have never been defined

nor have never existed as a specific subject under legal protection like subjects such as women, children, persons with disabilities, etc The only record is the obvious prohibition of same-sex marriage (SSM) in Article 10 of the Marriage and Family Law 2000

In terms of medicine and society, for decades, there has been much research

on sexual orientation of human being in general and on homosexuality and bisexuality in particular A good number of studies suggest that sexual orientation seems to exist along a continuum ranging from exclusively heterosexual to exclusively homosexual and including varied forms of bisexuality rather than to separate into several categories.11 There is no consensus among scientists about the origins of a person‟s sexual orientation Many theories have been suggested, including but not limited to: genetic factors, in born hormonal factors, brain structures, psychological factors, environmental factors, social factors, family

order and congenital bisexuality The majority of scientists today believe that

sexual orientation results most likely from a complex interaction of environmental, cognitive and biological factors There is also substantial

evidence for the key role of biology (including genetic or inborn hormonal factors) in a person‟s sexuality.12

Homosexuality was once considered a mental illness or a psychological disorder and in need of therapy conversions, some of which were very cruel and inhumane13 Many gay people have also forced themselves to change their sexual orientation to heterosexuality for family pressures, social stigma, the religious

10

This term is cited by UNHCR from Yogyakarta Priciples on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, 2007 Yogyakarta Principles are principles on how to apply international human rights law into national law in relation

to sexual orientation and gender identity It was framed by a group of human rights experts on March

2007 at Yogyakarta, Indonesia Yogyakarta Principles are not legally binding themselves, but are an persuasive interpretation of international human rights treaties from the viewpoint of sexual orientation and gender identity, available at http://www.yogyakartaprinciples.org/principles_en.htm (last visited June 22, 2011)

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views or have been coerced to change it violently (for example, many lesbians have been raped with the reason to change their sexual orientation) Many Western medical and psychological organizations do not consider sexual orientation a conscious choice that can be forced to change and are afraid of the

potential harms of such therapies Psychiatrists, psychologists and other mental

health professionals claim that homosexuality is not an illness, a mental disorder

or an emotional problem Gay and bisexual people can live a happy and

successful life They may seek help from mental health organizations for their

"coming out" process (the process with many experiences from self-awareness of same-sex attractions, the accepting themselves as gay, lesbian to the disclosure to relatives, friends and society) or for strategies to overcome prejudice, and for the same reasons and life problems as those of heterosexual persons.14 In 1973, the

American Psychiatric Association removed homosexuality from the official manual that lists mental and emotional disorders Two years later, the American

Psychological Association also passed a resolution supporting this decision

Since 1990, in the International Classification of Disease version 10, World

Health Organization has stopped listing homosexuality as a disease, but as a sexual orientation

Homosexuality and bisexuality have also been recorded to exist in history of many societies and various cultures It is of difficulties in making comprehensive statistics on the proportion of lesbian, gay and bisexual to heterosexual as well as those of homosexuality and bisexuality to heterosexuality.15 In Viet Nam, homosexuality used to be recorded in the 16th and 17th century about men kings who have concubines; and in the periods of French and American war At the present, there has been no official statistics on the percentage of lesbian, gay and bisexuals living in the country.16

14

See Sexual orientation and homosexuality, supra note 11

15

A statistics on large scale held in Australia with 19.307 people from the ages of 16 to 59 từ

2001-2002 discovered: 97.4% of men identified as heterosexual, 1.6% as homosexual, 0.9% as bisexual

To woman, the proportion was 97.7% heterosexual, 0.8% homosexual and 1.4% bisexual However, 8.6% of men and 15.1% of women reported that they used to have attraction to people of the same sex or experience of same-sex relations A survey in Den Mark 1992 showed 2.7% of 1.373 men used to have same sex relations In France 1992, a research with 20.055 people revealed 4,1% of men and 12,6% of women used to same sex experience In Norway 1988, in a survey with 6.300 people participated, 3,5% of men and 3% women used to have same sex relations In US, the president poll 2008, CNN surveyed that 4% of people identified as homosexual and bisexual See

Nhân khẩu học thiên hướng tình dục, Wikipedia, available at http://en.wikipedia.org/wiki/ (last

visited April 30, 2011)

16

See Đồng tính luyến ái ở Việt Nam, Wikipedia, available at http://en.wikipedia.org/wiki/ (last

visited April 30, 2011)

Page

1.1.2 General concepts and characteristics of transgender people

In international law, as mentioned above, transgender people along with

lesbian, gay, and bisexual people have been defined under the Glossary of the UNHCR However, in order to thoroughly understand the concept of transgender people, the notions of “gender”, “gender identity” and “gender expression” must

be mentioned first

In the Glossary of the UNHCR, the term “gender” refers to “the relationship

between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another” While “sex” differences are biologically determined (“sex” divides human being into male and female according to the biological characteristics), gender differences refer to the distinctions a culture makes in what it considers masculine or feminine and therefore, are socially determined Gender refers to the way a person identifies him or her as belonging to what gender and/or express that gender

Gender identity is “each person‟s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth It includes the personal sense of the body (which may involve, if freely

chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms”.17 Gender expression is “the external manifestation of one‟s gender

identity, usually expressed through „masculine‟, „feminine‟ or gender-variant

behavior, clothing, haircut, voice or body characteristics” Although most people have gender identity and/or gender expression in conformity with their sex assigned at birth, some do not

So, transgender people are defined in the Glossary as follows: “Transgender

is an umbrella term for people whose gender identity and/or gender expression differ from the sex they were assigned at birth The term may include but is not limited to: transsexuals, cross-dressers, and other gender-variant people”

The characteristics of these people are they have gender identity and/or gender expression differ from the sex assigned at birth while other people do not

People experience problems with gender identity are so-called transsexual

persons These people usually seek to make their gender expression match their gender identity, rather than their sex assigned at birth There are also people who

17

See Yogyakarta Principles, supra note 10

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just have gender expression differ from the sex assigned at birth but do not feel their gender is different from that sex; they are, for example, the cross-dresser or so-called transvestite people This thesis only focuses on transgender people in general as persons whose gender identity and/or gender expression are different from the sex assigned at birth and face human rights invasions for such differences, as well as on transsexual persons in particular for some of their specific human rights issues concerning the lawful recognition of their reassigned sex

Transsexual is a medical term to describe people who experience a conflict

between their physical sex and their gender identity They are transgender people whose gender identity is not compatible with gender assigned at birth For example, a person is born with male body but has female gender identity and vice versa Transsexuals may wish to make gender transition, the fact of altering their physical body through hormone therapy and, in some but not all cases, sex reassignment surgery, to match their gender identity but not all transsexuals have that wish as well as afford to it. 18

It is also essential to affirm that gender identity is different from sexual orientation Gender identity is one person‟s sense of being a man or a woman

while sexual orientation describes an individual‟ enduring physical, affectional, emotional attraction to another person Transgender people are considered to have the same variety of sexual orientation as other people and it is preferred to label a transgender person‟s sexual orientation based on their gender identity rather than their sex For example, a person who is assigned as male at birth and transitions to a female, and is attracted to a man would be labeled as heterosexual but not homosexual

In Vietnamese legislation, transgender people have never been mentioned

with a clear concept by Vietnamese legislators They are just referred to in only one legal provision which forbids "the gender transition to the people whose sex

is perfectly shaped”

In terms of medicine and society, transgender used to be identified as a

mental illness "Transsexualism", "dual role transvestism", "gender identity

18

Transsexual persons may experience long, complex process of altering a their sex assigned at birth

to match their identity, so-called transition/gender transition, which can include hormone therapy, psychological treatment and in some but not all cases, sex reassignment surgery/gender confirming surgery (SRS) SRS may be a complex procedure, including genital surgery, breast augmentation or

reduction, and hysterectomy See Transgender, Wikipedia, available at http://en.wikipedia.org/wiki/

(last visited April 28, 2011)

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disorder in adolescents or adults‟, "gender identity disorder not otherwise specified" were listed in International Statistical Classification of Diseases and

the American Diagnostic and Statistical Manual of Mental Disorders But in

2010, France has become the first country to remove transgender identity from the list of mental diseases Researches and studies of this condition are extremely

new in medicine and still evolve but transgender people are believed to have a normal and healthy life with their gender identity.19 According to the statistics in Netherlands, in every 20,000 men there is one who wants to change their sex to female, and the proportion is one in 60,000 when referring to female to male transsexuals.20 In Vietnam, according to statistics, in every 30 thousand men there is one transsexual; in women, the incidence is 1/100.000.21

1.1.3 General concepts and characteristics of intersex people

In international law, increasing intention of international community has

been recently drawn to the existence of intersex individuals As stated in the Glossary, intersex is defined as people who have “a condition of having sexual

anatomy that is not considered standard for a male or female Intersex can be used as an umbrella term covering differences of sexual development, which can consist of diagnosable congenital conditions in which development of chromosomal, gonadal or anatomic sex is atypical."

In the Viet Nam’s legal system, intersex people are not defined with the term

"intersex." Those people are associated with the characteristics as having "sex

congenital defects" or "sex is not configured correctly." According to the laws,

the "sex congenital defects are the abnormalities in the genitals of a person at birth, manifesting in the form of male pseudo – hermaphroditism, female pseudo

- hermaphroditism, and true hermaphroditism".22 "Sex is not configured correctly” is the case in which "sex chromosome may be the same as those of

19

See Transgender, ibid

20

See Nguyễn Thành Như, „Chuyển giới tính tại Thái Lan‟, Ykhoanet.com, available at

http://www.ykhoanet.com/tinhduc_gioitinh/tinhduc/65-16.html (last visited April 27, 2011)

21

See Thiên Chương (2007), „Những ngộ nhận thường gặp về người đồng tính‟, Việt Báo.vn,

available at tinh/11038511/111/ (last visited May 24, 2011)

http://vietbao.vn/Doi-song-Gia-dinh/Nhung-ngo-nhan-thuong-gap-ve-nguoi-dong-22

The male pseudo-hermaphrodite are persons “who have small penis, with testes, no uterus or ovary, the sex chromosome is XY or testis-determining gene or the combination of both cases” The female pseudo-hermaphrodite are persons “who have clitoris developing like penis, without testes but with ovaries, vagina, the sex chromosome is XX” “True hermaphrodite” are people “who have genitals that are not identified as of male or of female, and have both ovarian and testicular tissue, the chromosomal types may be of XX/XY; XXX/XY; XX/XXXY or of other types which is identified as true hermaphroditism” See Articles 5, 6 of Decree 88/2008/ND-CP on the gender re- determination

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male pseudo – hermaphrodite, female pseudo - hermaphrodite, and true hermaphrodite but the genitals are not fully differentiated and can not be accurately determined as male or female."

In terms of medicine and society: In order to learn more about intersex

individuals, we need to understand comprehensively the term “sex” “Sex” is the term referring to whether one is biologically male or female Sex differences based on biological factors such as differences in the reproductive organs and genitals or differences in height and body proportion of each sex.23 Although biological sex is often divided into male and female, there are some people that can not be clearly considered as standard male or female.24 They are intersex

people Intersex is a general term used for “a variety of conditions in which a

person is born with a reproductive or sexual anatomy that does not seem to fit the typical definitions of female or male For examples, a person might be born with

the appearance as a female on the outside, but having most of the male-typical anatomical features on the inside Or a person can be born with genitals that do not seem to belong to male or female types, for example, a girl can be born with notably large clitoris, or lacking a vaginal opening, or a boy may be born with a noticeably small penis, or with a scrotum divided and it looks like a female labia

Or a person can be born with mosaic genetics, so that some of their cells have

XX chromosomes (chromosomes) and some of them have XY”.25 There is no consensus among scientists on the definitions and conditions of intersex26 and who count as intersex and even on terms used to indicate the status of being intersex.27 According to the Intersex Society of North America (ISNA), the proportion of births whose bodies differ from standard male or female is one in

100 births every year around the world.28 In Viet Nam, infants with intersex

23

See Nancy J Cobb (2001), The Child, California State University, Los Angeles, p 257

24

See Mai Thị Ngọc Anh (2010), Sexual minorities rights and the perspective of Vietnamese

legislation on this issue, Bachelor thesis, HCM University of Law, p 6

25

See What is intersex, Frequently Asked Questions, Intersex Society North America, available at

http://www.isna.org/faq/ (last visited June 23, 2011)

26

See Intersex, Wikipedia, available at http://en.wikipedia.org/wiki/Intersex (last visited April 30,

2011) and „Thế nào là lưỡng giới tính giả? Nó được phân loại như thế nào? Tình trạng kinh nguyệt của người lưỡng giới tính ra sao?‟, Ykhoanet.com, available at http://www.ykhoanet.com/yhocphothong/sach_phunu/8F4.htm (last visited April 30, 2011)

27

For example, “hermaphrodite”, “true hermaphrodite, “pseudo hermaphrodite, “disorders of sex

development”, “variations of sex development” See Intersex, ibid

28

The intersex conditions cited by this organization from Blackless, Melanie, Anthony Charuvastra, Amanda Derryck, Anne Fausto-Sterling, Karl Lauzanne, and Ellen Lee 2000 „How sexually

dimorphic are we? Review and synthesis‟ American Journal of Human Biology 12:151-166

These conditions include 5-alpha reductase deficiency; androgen insensitivity syndrome; aphallia; clitoromegaly; congenital adrenal hyperplasia; gonadal dysgenesis (partial & complete); hypospadias; Klinefelter syndrome; micropenis; mosaicism involving sex chromosomes; ovo-testes

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conditions have increasingly caught the attention of the community with many cases recorded each year.29

In the history of medical literature, intersex people used to be categorized as

pseudo-hermaphrodite and true hermaphrodite True hermaphrodite are considered as people who have both ovaries and testes (ovarian and testicular tissues may be in the same gonad, or in two separate gonads: testicular tissues are

on one side and ovarian tissues are on the other, or one testis or one ovary on one side and the mixture of gonads is on the other); genitals are not clearly male or female, the penis may be very small, sometimes with the cleft urethra; the chromosome types are varied The male pseudo-hermaphrodite are persons who only have testes with XY chromosomes, but small penis, scrotums stick together and look like the female genitalia, even with small vagina In case of the androgen insensitivity syndrome, the genitals may completely the same as those

of female but without uterus and ovaries The female pseudo-hermaphrodite are persons who only have ovaries in the gonads with XX chromosomes, the genitals are partially masculinized and produces a large clitoris (like the penis of boys of the same age, may be larger), to virilisation and male appearance; the most common cause of these conditions is congenital adrenal hyperplasia.30 This categorization is based on gonadal tissues and persists in most medical text today Viet Nam also uses this perspective to make legal regulations of intersex people But this perspective is considered to be arbitrary and to fail to reflect the modern scientific understandings of intersex conditions, confusing clinicians and harming patients and their parents.31

In summary, intersex people are persons who have congenital conditions in

which development of chromosomal, hormonal, gonadal or anatomic sex is atypical In other words, it is not clearly to define them as standard male or female biologically These characteristics make them differ from other people and cause them human rights violations

(formerly called "true hermaphroditism"); partial androgen insensitivity syndrome;

progestin-induced virilisation; Swyer syndrome; Turner syndrome See What count as intersex, Frequently

Asked Questions, Intersex Society North America, available at http://www.isna.org/faq/ (last visited June 23, 2011)

See Trần Ngọc Bích (2008), „Tạo con giống cho người lưỡng giới (kì 1)‟, Sức khỏe và đời sống –

Cơ quan ngôn luận của Bộ Y tế, available at

http://suckhoedoisong.vn/2008669445783p0c6/tao-con-giong-cho-nguoi-luong-gioi-ky-i.htm (last visited May 3, 2011)

31

See Is a person who is intersex a hermaphrodite, Frequently Asked Questions, Intersex Society

North America, available at http://www.isna.org/faq/ (last visited June 23, 2011)

More to the point, lesbian, gay, bisexual, transgender and intersex people

have been referred generally with the acronym "LGBTI" as subjects who have

been suffering similar human rights invasions related to sexual orientation and gender identity There are many acronyms used in this issue with various meanings and rationales.32 The term "sexual minorities" is also listed in the Glossary of UNHCR to refer to the same subjects or just to the lesbian, gay, bisexual and transgender people United Nations High Commissioner for Human Rights have use the term “LGBTI” to indicate the groups of people who have been suffering discrimination based on sexual orientation and gender identity, one of discrimination forms against which the all human rights bodies of the United Nations need to combat.33

So, the general understanding of LGBTI persons in international law and

Vietnamese legislation has just been mentioned, along with some aspects related

to them in terms of society, medicine and psychology In many parts of the world, LGBTI persons face discrimination, persecution and abuse just because of their non-conformance with traditional gender norms, and of their different sexual

32

There are many acronyms in this issue which are LGB (lesbian, gay, and bisexual), LGBT/GLBT (lesbian, gay, bisexual, and transgender), LGBTQ/GLBTQ (lesbian, gay bisexual, transgender, Queer/Questioning) These terms represent for each group of individuals with specific

characteristics, having various meanings and purposes See LGBT, Wikipedia, available at

http://en.wikipedia.org/wiki/ (last visited June 4, 2011)

33

See A special focus on discrimination, Human Rights Issues: Discrimination, Untied Nations

Human Rights - Office of the High Commissioner for Human Rights, available at http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx (last visited June 1, 2011)

Human rights are addressed by United Nations as follows: “Human rights are

rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status We are all equally entitled to our human rights without discrimination These rights are all interrelated, interdependent and indivisible”.34 All human beings are born free and equal in dignity and rights That principle was declared in the Universal Declaration of Human Rights (UDHR) 1948, the common standard of achievement for all people and nations

The most basic civil, political, economic, social and cultural rights of human

– constitutive aspects of human rights - for the first time in the history have been

enshrined in the UDHR, such as right to life, liberty and security of person, right

to freedom from torture and inhuman treatment, right to equality before law without any discrimination, right to recognition as a person before the law, right

to respect for private life, family, home and correspondence, right to seek in other countries asylum from persecution; right to marry and to family, right to freedom

of thought, conscience and religion; right to freedom of opinion and expression; right to freedom of peaceful assembly and association; right to take part in the conduct of public affairs, to have equal access to public service, right to work, right to standard of living adequate for health and well-being, etc The UDHR did state that rights of an individual “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (Article 29)

It is an undeniable truth that all people, regardless of who they are, are the subjects of human rights and fundamental freedoms, without discrimination, for

34

See What are Human Rights, Your Human Rights, United Nations Human Rights - Office of the

High Commissioner for Human Rights, available at http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx (last visited June 1, 2011)

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the equality in dignity of every human being Therefore, LGBTI persons, as any

human, are entitled to the respect for and protection of their human rights They are the subjects of human rights and fundamental freedoms enshrined in international human rights law and must be ensured the enjoyment of all rights without any discrimination of any ground

Nonetheless, LGBTI persons‟ human rights have been regularly violated

because of their sexual orientation, gender identity and the non-conformance to the prevailing gender norms Moreover, they have to suffer multiple

discrimination, violence, harassment, stigma, hatred, and prejudice related to other grounds including age, religion, color, disability, or economic, social and other conditions Such violations “undermine the integrity and dignity of those subjected to these abuse; may weaken their sense of self-worth and belonging to the community, lead many to conceal or suppress their identity and live lives of fear and invisibility."35

LGBTI persons face maltreatment and violence in many parts of the world

because of their actual or perceived sexual orientation and gender identity and of that not behaving according to the traditional gender norms that shape what is

“proper” to men or women They may be subject to mental, physical and sexual abuse36, including insult, rape37, assault, torture38, hate crimes and killings39 for their manner, dress, and appearance by both authorities and private actors Same-sex relations are criminalized in more than 70 countries, 7 countries even impose the death penalty to persons perceived to be gay where sexual orientation is

all See Taking a stand against homophobia, 2010, New and Events, Office of the High

Commissioner for Human Rights, available at http://www.ohchr.org/EN/NewsEvents/Pages/TakingAStandAgainstHomophobia.aspx (last visited June 26, 2011)

In New York, March 2010, three young men were kidnapped to a vacant apartment in the Bronx

and subjected to outrageous torture and abuse See Taking a stand against homophobia, ibid

39

From a report of an NGO working on LGBT issues in Brazil, there have been more than 3000

homosexual persons were murdered in this country See Laws criminalizing homosexuality are

incompatible with international human rights standards and fuel homophobia, 2011, New and

Events, United Nations Human Rights - Office of the High Commissioner for Human Rights, available at http://www.ohchr.org/EN/NewsEvents/Pages/Homophobia.aspx (last visited June 1, 2011)

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clearly an aspect of individual privacy Such laws can perpetuate the stigma, negative understandings, ill treatments, and crimes committed against LGBTI persons, causing an intolerant and violent environment not only for sexual minorities but also for all human being As consequences, many LGBTI persons are seeking in other countries asylum from persecution related to sexual orientation and gender identity However, in reality, LGBTI also faced difficulties and discrimination in exercising this right

Many LGBTI people experience invasions of privacy, arbitrary detention,

denial of employment 40 , education opportunities, access to health care and other social services and discrimination relating to the enjoyment of many other human rights, ranging from the civil, political rights to economic, social and cultural

ones For example, their right to freedom of speech and opinion, right to freedom

of peaceful assembly and association are usually restricted and threatened41: In Jerusalem, 2005, the authorities of this city decided to prohibit the annual peaceful parade of those persons, resulting in their suing for "the right to freely express their feelings" to Supreme Court in Israel A leader of Zimbabwe, Robert Mugabe, in the Zimbabwe International Book Festival in August 1995 said, "If anyone saw someone in the parade of gay people, let's catch them and hand them

to the police.”42 In Belgrade, United States on May 10, October, a group of protesters threw grenades at a peaceful parade of gay people, injuring 150 people…43 The violations to their right to equal treatment in employment, promotion, social services such as housing, health care, social insurance, public services and other rights are not only threatening the quality of their lives, but also driving them to hide their true identities, making them invisible and dehumanizing them

Human rights defenders who work to fight against violations aimed at LGBTI persons also faced many obstacles, harassment, hate crimes from many actors, ranging from government offices, private actors and even some non-governmental organizations which do not recognize issues relating to LGBTI persons as human rights ones In the most recent time, 2010, in Africa, the whole world was stunned before crimes targeted at LGBTI human rights defenders

40

See Thiên hướng tình dục trong quân đội, Wikipedia, available at http://en.wikipedia.org/wiki/

(last visited June 1, 2011)

41

See Người đồng tính được chính thức công khai hóa tại Ucraina, available at

http://chisau.fanbb.net/t1993-topic (last visited May 30, 2011)

Page

when many of them threatened by a public hate campaign initiated by a newspaper and then two people beaten until death at home.44 The UN High Commissioner for Human Rights has repeatedly warned about the prejudiced and violent environment in many parts of the world, which threats the safety of LGBTI people and their human rights defenders45

LGBTI persons may subject to the similar abuse, but they also have unique violations as distinct groups that must be put under specific protection of law according to their age, gender, sexual orientation, gender identity and other reasons, such as: gay people, lesbian people, bisexual people, transgender people

and intersex people

Lesbian, gay and bisexual persons46 suffer invasions not only to the right to life and security of persons, but also to the right to marry and to found a family in many countries, regardless of their intimate relationship However, nearly ten countries and territories have recognized same-sex marriage; and in a good number of countries, certain rights through institutions such as civil unions, domestic partnerships, or cohabiting registration have been granted to homosexual couples Nevertheless, those forms are not equal in many aspects in comparison with married heterosexual couples, even with unmarried heterosexual ones In many places, the homosexual couples taking care and supporting their love ones for the whole life are not entitled to visit their ill partners in hospital, to inherit the possession they have shared for years if one partner dies suddenly without leaving a will, to enjoy rights associated with housing, adopting children, raising children after divorce47 and other benefits to

46

In this thesis, bisexual persons shall be mentioned along with homosexual persons as people who suffer discrimination and violation based on their sex relations to the people of the same sex Because bisexuals are persons who are sexually, emotionally attracted to people of both sexes so that when they reveal or choose to act on their same sex relations, they would be considered as homosexual In fact, bisexual persons usually raised in heterosexual families and experience life as

heterosexual persons before identifying themselves as bisexual See April Martin, 1993, The Lesbian

and Gay Parenting Handbook: Creating and Raising Our Families, HarperCollins Publishers,

United States, p 139

47

In America, a lawyer for a homosexual person would have to overcome prejudice to obtain the child custody In the past, the reasons for denying a homosexual parent the custodianship were:

„homosexual persons would turn the child into a homosexual, molest the child, conduct sexual acts

in front of the child, or harm the child emotionally for the immoral environment and community disapproval‟ However, there has been no scientific that a parent‟ sexual orientation may negatively affect the child or they are likely to molest it or the child raised is likely to become homosexual In

received care of authorities like general harm against other women Gay and

bisexual persons also meet specific violations towards them for their unique

characteristics

Since lesbian, gay and bisexual persons suffer a lot of inequality, discrimination, they often conceal their sexual orientation, which causes trauma, mental consequences to them, even leads to commit suicide.49 In Vietnam, homosexuality is considered to infringe moral standards and to be an illness According to the statistics, "after discovering one‟s sexual orientation, about 20

to 40% of minors are denied or threatened by the members of their own family, 5% of them suffer physical injury".50 Also in the statistics, "the feelings of being isolated and refused may increase risks of suicide, drug abuse among those young men" A research of ISEE on discrimination of gay men in Vietnam showed that "1.5% of people said they were expelled if found to be gay; 4.1% of them encountered discrimination on housing issues; 4.5% of those persons reported that used to be attacked and beaten for being gay; 15.1% of people said were cursed by the family for their homosexuality".51 In 2002, the Ministry of

protect its best interests See Linda D Elrod 1993, Child Custody practice and Procedure, Deerfield,

IL: Clark Boardman Callaghan, 4-77 to 4-85; 6-67 to 6-70

48

See Karon Monaghan (2007), Equality Law, Oxford University Press Inc, New York, United

States, p 291

49

In September, 2010, California, US, 6 six teenage boys were reported to have committed suicide

after suffering homophobic bullies See Taking a stand against homophobia, supra note 36 and see

„Daniel Radcliffe chống nạn tự sát trong cộng đồng người đồng tính‟, 2010, Thethaovanhoa.vn,

available at http://thethaovanhoa.vn/135N2010)0301074416341T0/daniel-radcliffe-chong-nan-tu-sat trong-cong-dong-nguoi-dong-tinh.htm (last visited May 2, 2011)

50

See „Rối loạn tính dục ở trẻ em‟, 2010, Người lao động.com.vn, available at http://nld.com.vn/,

2010)0825105538831P1050C1035/roi-loan-tinh-duc-o-tre-em.htm (last visited April 30, 2011) 51

See Thái Thị Tuyết Dung, supra note 5, p 12

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Labors, Invalids and Social Affairs in Vietnam listed homosexuality as the "social evils" that should be eliminated along with the matter of prostitution and drugs.52

Transgender people whose gender identity and gender expression do not

match the societal norms about men and women also encounter other specific issues besides those human violations stated hereinbefore In many places as well

as in Viet Nam, transsexual persons who did undergo, are undergoing or have undergone gender transition shall suffer many discrimination and abuse Moreover, many people who are not recognized the post-transition gender would not have right to marry the person of their former sex If their change of gender

in identity cards, passports and other state papers are not permitted, they can not fully exercise basic rights and freedoms of a citizen They are also violated the right to respect for private life and personal secrets where the history of their gender transition is not protected in law In many parts of the world, transgender people lack of access to education, health and psychological care, work and housing.53 The prevalence of violence, attack targeted at the transgender community is also a serious human rights issue in many countries.54 In some states of US, the sex change of a father or a mother shall be considered one of the moral misconducts that can affect the judge‟s decision to grant the child custody

to the other father or mother because of the impact of bad family environment.55

In Viet Nam, transgender people also experience insult, isolation, discrimination,

52

See Đồng tính, Lưỡng giới, chuyển giới ở Việt Nam, Wikipedia, available at

http://vi.wikipedia.org/ (last visited June 1, 2011)

53

In Australia, 2005, a survey of 5000 people who identified themselves as LGBTI persons found that 59.3% of participants reported experiencing personal insults or verbal abuse, 23% of people used to suffer threats of violence Physical attack and other kinds of physical violence were reported

by 13.7% of people Around 10% of participants reported being refused employment or promotion for their sexuality About the same proportion of people used to be thrown objects at them Trans- males, trans-females, intersex males and intersex females generally suffered higher rates of discrimination where 23.5% of trans-males, 34.9% of trans-females, 18.2% of intersex males and 28.6% if intersex females used to be refused a job or a promotion Most participants (67.3%) indicated that fear of prejudice or discrimination caused them to modify their daily activities

See Anna Chapman, Protection from discrimination on the basis of sexual orientation or sex and/or

gender identity in Australia, 2010, Human Rights, Australian Human Rights Commission, available

at http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/research_paper.html (last visited June 4, 2011)

54

In Honduras, 7 transgender were reported being killed in this country within 2 months from November 2010 to January 2011, adding to the total amount of transgender people killed in this country up to 34 persons since 2009, according to the Inter-American Commission on Human Rights, Organization of American States In Brazil, according a report of a NGO on LGBT human rights issues, only in 2010, there were 250 LGBT killed in this country for their sexual orientation

and gender identity See Laws criminalizing homosexuality are incompatible with international

human rights standards and fuel homophobia, supra note 41

55

See Linda D Elrod, supra note 47, paragraphs 4-77; 6-70

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physical, mental and sexual assault without appropriate protection of the authorities

Intersex persons also endure stigma and discrimination as LGBT people for

failing to conform to the prevailing gender norms Seeing that they are not particularly a standard male or female and/or have characteristics of both sexes, they may be subject to harm if they publicly transition to the other sex or choose

to stay in a non-binary gender status In some countries including Viet Nam, they are regarded as defected persons or even an evil or a monster shocking parents and community In some countries, that „evil‟ will be subject to ritual ceremonies and family will be persecuted for having an intersex child.56 However, their most notable human rights issue is the unwanted sexual reassignment that could lead

to genital mutilation to obey the rigid binary sex and gender norms, especially on intersex children This particular issue shall be addressed in Chapter 2, item 2.3

in detail

In brief, the human rights of LGBTI community have been severely infringed,

which is at variance with international human rights principles of equality and

non-discrimination That eradicating discrimination based on sexual orientation

and gender identity toward LGBTI people is an urgent human rights issue, as

well as other forms of discrimination against which the whole world is trying to fight They need to be protected at both international and national level under obligatory human rights treaties and other domestic legal instruments

1.2.2 International and national legal basis to protect rights of lesbian, gay, bisexual, transgender, and intersex people

LGBTI people have encountered particular human rights issues related to their differences in sexual orientation, gender identity and sex development The invasion of the natural human rights of those people poses an urgent demand on the development a mechanism to protect them vis-à-vis laws and other instruments to ensure equality and justice in the society However, unlike other forms of discrimination (such as racial discrimination, religious discrimination, discrimination against women, persons with disabilities, migrants, minorities, or indigenous people) that are all put under legal protection in binding treaties or at least in international declarations, principles, or standard rules, discrimination

56

See Anna Chapman, supra note 53 and see UN High Commissioner for Refugees - The UN Refugee Agency, supra note 9

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against LGBTI persons based on sexual orientation and gender identity has not been mentioned in any international treaty

However, the international community is putting much effort into framing an

international instrument in relation to sexual orientation and gender identity to

protect LGBTI persons during recent years In 2006, in Montreal, Canada, the

United Nations Office of High Commissioner for Human Rights and LGBT

activists approved a Declaration of Human Rights for LGBT persons (so-called

Declaration of Montreal) that expressed the LGBTI people‟s requirements for essential rights consisting of right to be protected against state and private violence, right to freedom of expression, assembly and association and right to engage in private, consensual, adult sexual relations This Declaration also mentioned some global issues experienced by LGBTI persons, for example the

matter of asylum and migration Two years later, in 2008, France and Netherlands initiated a United Nations Declaration on Sexual Orientation and

Gender Identity and submitted it to the General Assembly to adopt as a

resolution, which was supported by 85 countries The document proposed the condemnation of discrimination, violence, stigmatization, exclusion, sanction, torture, arbitrary detention and deprivation of human rights against LGBTI persons However, it then encountered the opposition from 57 other countries with an Arab-league statement and then both statements were not adopted.57 Most

recently, in Geneva, June, 2011, the UN has had an official action to protect

LGBTI persons‟ rights when adopting a Resolution on Sexual Orientation and

Gender Identity.58 The Resolution asserted that "all human being are entitled to all rights and freedoms without any discrimination” and raised concern about violence and discrimination against LGBTI persons around the world A report

on discriminatory laws and practices and violence against individuals based on their sexual orientation and gender identity in the world has been requested available and a discussion will be held at the Human Rights Council to consider such report with appropriate international legal measures to solve the problem.59

58

See Resolution on Sexual Orientation and Gender Identity: a groundbreaking achievement, 2011,

Hivos Unlimited, available at Orientation-and-Gender-Identity-a-groundbreaking-achievement (last visited June 26, 2011)

http://www.hivos.nl/eng/News/News/Resolution-on-Sexual-59

See „UN rights body hits out against violence based on sexual orientation‟, 2011, UN News

Centre, available at http://www.un.org/apps/news/story.asp?NewsID=38762&Cr=prejudice&Cr1=

(last visited June 26, 2011)

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Even though it will take much time to make effort become reality, an international legal frame for the protection of LGBTI people‟s human rights against discrimination based on sexual orientation, gender identity and other grounds as well as for the specific application of general human rights in relation

to their characteristics is potential On the other hand, at the present, we must to

make use of available international and domestic legal basis to protect LGBTI persons

On December 10, 1948, the General Assembly of Untied Nations adopted the Universal Declaration of Human Rights, officially establishing "a common standard to be achieved for all peoples and nations" on civil, political, economic, cultural, social rights of all human being Along with the Declaration, the International Covenant on Civil and Political Rights (1966) (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (1966)

(ICESCR) have shaped the so-called International Bill of Human Rights,

enshrining the most basic aspects of human rights for every individual in the

world In addition, a series of important international and regional human rights

treaties adopted from 1945 did form the consistent legal framework for the

protection of human rights at global level At almost the same time, many human rights mechanisms including Charter-based bodies, Treaties-based bodies and other regional human rights bodies have been established, ensuring State parties‟ compliance with their treaty provisions for the respect, and enforcement of human rights standards at national level

In conjunction with the legal-binding instruments including customary law,

covenants, statues, protocols and conventions, there are other international

supplementary sources relating to human rights with certain practical force in

states‟ conduct, such as: declarations, principles, standard rules, guidelines, recommendations adopted at the international level; also with comments, recommendations and conclusions made by treaty committees in the process of monitoring the compliance of states parties to the treaty provisions or of considering individuals‟ communications or complaints against states parties for their invasions on human rights; as well as the decisions, judgments of the International Court of Justice, regional courts, especially the European Court of

Human Rights; and the doctrines, the opinions of human rights experts… All

formed the international provisions, principles and standards for establishing,

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protecting and promoting the rights and fundamental freedoms for all members

of the human family, which are so-called international human rights law.60

International human rights law is an important legal basis for the protection

of LGBTI community since they contain the most important human rights principle which is „human rights are for all human being without discrimination

of all forms‟ This principle was stated explicitly in the UDHR in the Article 2 as

follows: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or

other status" The phrase "other status" is used as a structure containing all

grounds in which discrimination can originate to ensure that everybody is under the protection and are entitled to all human rights without discrimination61 of all kinds Thus, all entities in society are obliged to respect, protect and fulfill human rights and fundamental freedoms of all individuals including LGBTI persons

This structure was reiterated in Article 2 of the ICCPR as well as in Article 2 of

the ICESCR and other international legal instruments The European Convention

on Human Rights (ECHR), in Article 14, the American Convention on Human Rights (ACHR) 1969, in Article 1, the African Charter on Human and People's Rights (ACHPR) 1981, in Article 2, also use this structure, which expresses the consensus of all nations in the world of the international human rights principle: human rights are for all, in an equal and non-discriminatory way

Viet Nam has also become the state party of the ICCPR, the ICESCR and many other international human rights treaties In consequences, Vietnam is bound by the provisions of such treaties and therefore must manifest them in national law, ensuring human rights for its citizens and all individuals in the society including sexual minorities, without discrimination of any ground, even discrimination related to sexual orientation and gender identity Moreover, in the

60

See Hỏi Đáp về Quyền con người (2010), Khoa Luật Đại học Quốc gia Hà Nội, Nhà Xuất Bản

Công An Nhân Dân, Hà Nội., p 73

61

In the General Comment 18, the Human Rights Committee (the Committee that ICCPR established to monitor the implementation of State Parties to the provisions of the Covenant) noted that the term „discrimination‟ is not defined by the Covenant, however, according to other provisions

of the Covenant, the Committee believes that the term "discrimination" „as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms‟ See Human Rights Committee - General Comments, Office of United Nations High Commissioner for Human Rights, available at http://www2.ohchr.org/english/bodies/hrc/comments.htm (last visited June 23, 2011)

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Constitution 1992, Vietnam has also affirmed the principle that human rights are

equal and non-discriminatory in the Articles 50, 52 as follows: "all political,

civil, economic cultural and social rights are embodied in the citizen rights and stipulated in the Constitution and laws" along with that “all citizens are equal before the law"

International human rights law also contain many specific provisions that prohibit discrimination on many grounds and against many subjects, which is

very useful for the protection of LGBTI people‟ rights since they do not only face

human rights violations based on grounds of sexual orientation and gender identity but also experience many forms of discrimination on other grounds, such

as: age, sex, disability, color, religion, national origin, and other economic and

social status Therefore, it is indispensable to protect the LGBTI persons under

all existing binding human rights treaties for they are first a human being with

lots of vulnerabilities before being a LGBTI person Further, the implementation

of such international instruments must be made on the viewpoint of sexual orientation and gender identity The Yogyakarta Principles on the Application of

International Human Rights Law in relation to Sexual Orientation and Gender Identity developed by human rights experts have given states guidance on their conduct of obligations and contained useful recommendations for the implementation of general human rights in this particular issue at national level

In summary of this chapter, not only general understanding of the LGBTI

persons in terms of science but also the specific human rights issues facing them have been mentioned in this chapter Though any individual in this world is entitled to all human rights and fundamental freedoms for the equality in dignity, the LGBTI community has been subject to severe discrimination and violations

in many places related to their sexual orientation and gender identity as well as their non-conformance to prevailing gender and sex norms Furthermore, these violations are also compounded with other forms of invasions based on their race, age, religion, disability, or economic, social and other status for they are also normal human being that have every form of disability, members of every age group and of every social and economic class Despite the fact that there have not been particular human rights treaties dealing totally with their issues, according to all existing international instruments with undeniable principles and standards of equality and non-discrimination, they are all entitled to the universal

enjoyment of all human rights and fundamental freedoms On the other hand,

even though all human rights of LGBTI community must be recognized and

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protected, a thorough research to improve legal provisions in respecting, protecting and fulfilling all of their rights including civil, political, economic, social and cultural rights from discrimination based on sexual orientation and gender identity is a complicated issue and covers various aspects Therefore, the author only mentioned some specific and most notable human rights issues of lesbian, gay, bisexual, transgender and intersex persons with regard to the legal provisions of Vietnamese legislation on the same subjects hereinafter The author shall then bring some recommendations to reinforce the international and domestic protection of LGBTI persons‟ rights

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CHAPTER 2: RIGHTS OF LESBIAN, GAY, BISEXUAL,

TRANSGENDER, AND INTERSEX PEOPLE IN INTERNATIONAL

LAW AND VIETNAMESE LEGISLATION

2.1 Rights of lesbian, gay and bisexual people

2.1.1 In international law

The Human Rights Committee (HRC) monitoring the ICCPR has made a good

number of decisions on homosexuals‟ human rights when considering complaints from individuals claiming to be victims of any violations of any rights set forth in the ICCPR by the State party to the First Optional Protocol to the International Civil and Political Rights 1966.62 Although such decisions are only binding to State parties involved in the cases, they are considered the official opinions explaining the implementation of the ICCPR so that they set legal sources protecting rights for homosexuals as well as other LGBTI persons

In the case of Toonen v Australia (1994), the author (of the complaint)

alleged that Tasmanian laws which criminalized sexual relations between consenting males in private place threatened the privacy and freedom of the author.63 The author affirmed such laws violated Articles 2(1), 17 and 26 of the Covenant because they distinguish between individuals in their exercise to the right to respect for privacy because of “their sexual orientation, sexual activity and sexual identity”.64

HRC did made the decision that the term "sex" in Articles 2 and 26 of the ICCPR is to be taken to include "sexual orientation" as a ground under protection from discrimination However, it seems more appropriate to classify "sexual orientation" as an “other status” rather than as “an aspect of one‟s gender” In a

different case, Young v Australia, HRC clearly asserted that “sexual orientation

62

When an individual claims to be the victims of violations of any of the rights set forth in the Covenant by a State Party of, the Committee shall receive and consider his or her‟ communication (Article 1 of ICCPR-OP1) but only when that individual has exhausted all domestic remedies and the same matter is not being examined under another procedure of international investigation or settlement (Article 5 of ICCPR-OP), available at (http://www2.ohchr.org/english/law/ccpr-one.htm (last visited June 24, 2011)

63

See Sarah Joseph, Jenny Schultz and Melissa Castan (2004), The International Covenant on Civil

and Political Rights: Cases, Materials, and Commentary, 2nd edition, Oxford University Press, United States, pp 43, 80, 81

64

See Sarah Joseph, Jenny Schultz and Melissa Castan, ibid, p 495

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decisions are an important basis to protect homosexual persons‟ right to universal enjoyment of human rights without discrimination of any grounds

HRC also held in the case that "adult consensual sexual activity in private is covered by the concept of privacy" and such laws criminalizing homosexuals

directly “interferes” with the author‟s right to privacy66 protected by Article 17 of the Covenant.67 This decision evidently affirms that any infringement on same-sex relations in private place constitutes a violation to the right to respect for private life of an individual, one of the most fundamental personal rights of a human being, and is at variance with all the principles set in international human rights law

In this case, another issue was discussed That is about the relation between the universalist and relativist of human rights ICCPR and other international

human rights treaties are expressed in universalist language, which means all human rights in such treaties are reserved for all human being regardless of the different cultures in which they live However, states can make some reservations

to some Articles for cultural differences Such rights of reservations are yet limited in the General Comment 24 of HRC Moreover, some limitations to certain rights in ICCPR (for example to protect „public morals, a relativist concept varies from state to state) may be enunciated in relativist way and cause the uncertainty, flexibility to human rights interpretation and cultural debate over the rights protected In its decision of this case, HRC said the fact that all the other states of Australia had abolished laws criminalizing same-sex relations and homosexuality was widely accepted in the country laid evidence that the prohibition was not necessary to protect public morals That means if another country lacked the acceptance of homosexuality, it would lead to an opposite decision Therefore, this decision indicated that the ICCPR, an international human rights treaty with the principle of universality, may be explained in

culturally relativist manner Nonetheless, HRC has clearly expressed disapproval

The Article 23 of the ICCPR refers to the “family” as a fundamental unit entitled to the protection of society and state and to the right to marry and to found a family The question raised is whether the homosexuals living together

with their children are considered a family and protected by law, and have the right to marry each other and to found a family?

First of all, we need to understand what the “family” is In its General

Comment 16, 1988, HRC stated that "the objectives of the Covenant require that

for purposes of Article 17 this term (“family”) be given a broad interpretation to

include all those comprising the family as understood in the society of the State party concerned” In the General Comment 19, 1990, HRC noted that “the concept of the family may differ in some respects from State to State However, when a group of persons is regarded as a family under the legislation and practice

of a State, it must be given the protection referred to in Article 23.”

The notes pointed out that the concept of “family” varies from State to State but a State can not narrow the definition of "family" than that accepted its society and to violate the spirit of the Article in protecting various forms of family, diluting the human rights standards.69 In fact, many national regulations just define the concept “family” based on notions of “marriage” and “couples” which are usually used to show heterosexual relationship Thus, many same-sex couples living with each other without right to marry and with their children in many countries lack the legal protection and constitute discrimination between individuals in the exercise of their rights In the Hendricks v Netherlands (1985), HRC stated that the definition of “family” is not determined by the concept of marriage but embraced the relations between parents and child so that a divorce

just ends a marriage but not a family However, the HRC has not confirmed

whether homosexual couples, with and without children, have made a family or

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not.70 It must be noted that there have been a lot of homosexual persons living together with their children, creating close parental relations and participating in life actively as other heterosexual families They are truly forms of family that need protection of state and society

With regard to the right to marry, in the case of Joslin et al v New Zealand

(1999), the author claimed that the marriage law of New Zealand, which only allowed opposite-sex marriage, was a violation of their rights in Articles 23 (2), 2 (1) However, the HRC noted that the 23 is the only Article in the Covenant using the term “men and women” instead “every human being”, “everyone”, or “all persons” That not using the general term confirmed that Article 23 only lays the obligations of States “to recognize marriage as the union of a man and a woman wishing to marry each other” The HRC decided that New Zealand had not violated articles 16, 17, 23 and 26 by refusing to recognize marriages between

homosexual couples Thus, the HRC has clearly denied that the ICCPR

guarantees the right to same-sex marriage under Article 23 of the Convention.71With respect to the right to found a family: the content of this right is

mentioned in General comment 19 as follows: “the right to found a family implies “the possibility to procreate and live together” and “the possibility to live together implies the adoption of appropriate measures.” However, the right to found a family is only ensured to people who have the right to marry in the same

paragraph; so, homosexual persons who are stated as not having the right to

marry under Article 23 (in the case of Joslin et al v New Zealand) will not be recognized the right to found a family72 including right to adoption under the

ICCPR

To put it briefly, the Committee monitoring the ICCPR has had important

decisions about the right to respect for private life of homosexuals for their personal relations; and laws criminalizing or prohibiting such relations constitute

a severe human rights violation Moreover, discrimination based on sexual orientation is claimed to be prohibited under Article 2 and Article 26 of ICCPR However, HRC has said that ICPPR refuses to recognize same-sex marriage under the Article 23 explicitly Acknowledging that the question "whether a person can have right to marry and to found a family with whom he loves, regardless of their gender or sex" should be reviewed in the trend of legal

the interpretation of the term “sex or other status" as including "sexual

orientation" in the prohibited grounds of discrimination”

In the Europe Convention on Human Rights 1950 (ECHR), many provisions

have been used to protect rights of homosexuals in many cases brought to the European Court of Human Rights (ECtHR).80 ECtHR has made similar decisions

General Comment No 14 of 2000, General Comment No 15 of 2002, General Comment No 18

of 2005 See Combating discrimination based on sexual orientation and gender identity, Your

Human Rights–Discrimination, Office of High Commissioner for Human Rights, available at http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx (last visited May 31, 2011) and

Ending violence and criminal sanctions based on sexual orientation and gender identity, supra note

In the Lustig - Prean and Beckett v United Kingdom case (1999), Smith and Grady v United Kingdom (1999) ECtHR had the ruling that the removal of four applicants from the army for their homosexuality was a violation to Article 8 of the Convention since the damage to moral and the operation of the army by their presence was not proved clearly.84 The Court also considered that discrimination

based on homophobic was prohibited as well as other grounds of discrimination.85 However, in the case of Modionos v Cyprus, ECtHR had different finding on the discharge of the applicants from the Royal Navy solely only on reason of the applicant‟s homosexuality The court decided that the removal “was in accordance with law and could be said to be in the interests of national security and for the prevention of disorder” Nonetheless, the Court also emphasized that such discharge was not necessary in a democratic society and the restrictions relating to a most intimate part of a person‟s privacy required serious reasons for the interferences.86

82

See Clare Ovey and Robin C A White (2006), The European Convention on Human Rights,

Oxford University Press, United States, p 271

83

See Helen Keller and Allec Stone Sweet (2008), A Europe of Rights: The Impact of the European

Court on National Legal Systems, Oxford University Press, United States, p 62

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Same-sex marriage has not been recognized by ECtHR too The court used

the similar reasoning as that of HRC on the same subject because the Article 12

of the ECHR also uses the term "women and men" In the case of Rees v United Kingdom (1987), ECtHR said: "In the Court‟s opinion, the right to marry guaranteed by Article 12 refers to the traditional marriage between people of opposite biological sex." That's means state parties to the Convention are not obliged to recognize marriage between homosexuals or civil partnerships.87 In the Charter of Fundamental Rights of the European Union (2000), the right to marry and to found a family is mentioned in Article 9 and expressed as follows:

“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights” This provision does not refer to gender, however it do not clearly specify the duty of states to recognize civil partnerships or homosexual marriage.88 However, this

Charter has been the first regional treaty that clearly identified sexual orientation as a prohibited ground of discrimination among with other traditional grounds It is stated in the Article 21 that “Any discrimination based

on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a

national minority, property, birth, disability, age or sexual orientation shall be

prohibited” Though this Charter only applies to European Union member states,

it has impressed the need to include sexual orientation into the prohibited grounds of discrimination and has been actually a good precedent to other human rights treaty set up from now on

The right to found a family under Article 12 of the Convention is almost certainly not applied to unmarried couples and this issue is freely regulated by

family for homosexual persons (including right to adoption and to access to methods of artificial reproduction) because the right to marry is only for married people However, homosexuals may use other provisions to protect some aspects

of rights related to their family For example, in the Salgueiro da Silva v Mouta Portugal (1999), ECtHR held that discrimination based on sexual orientation is also listed in the prohibited grounds of discrimination and that not permitting the parent who has same-sex relationships to take care of the child for the reason of

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protecting the it‟s interests is completely inappropriate to Article 14 on prohibition of discrimination.90

Other regional human rights treaties also contain provisions that can be used

to protect the human rights of homosexuals For instance, Article 1 of the

American Convention on Human Rights 1969 refers to the respect for “the rights and freedoms for everyone regardless of race, color and other social conditions” In the case of Velasquez Dodriguez v Honduras (1998) the Inter-American Commission on Human Rights has asserted that the right to conjugal visit is for all citizens, regardless of who he or she is, and a lesbian is also allowed to her partners.91 With regard to the issue in Africa, there have been complaints brought to the African Commission on Human and People‟s Rights related to homosexuality But commissioners stated that “homosexuality offends the African sense of dignity and morality‟ and issues related to homosexual persons have “hardly been advocated as human rights issues in Africa”, which showed the conflict “between tradition and cultures perceived in Africa with the human rights and spirit of the African Charter”.92

With respect to national laws, many countries in all regions over the world also have certain legal instruments

to protect human rights of homosexual, bisexual persons in many areas by listing sexual orientation as a prohibited ground of discrimination in general or in some particular areas

2.1.2 In Vietnamese legislation

Homosexuality and bisexuality as well as homosexual conduct are neither prohibited nor criminalized in the history of Viet Nam‟s legal system In fact, under the Constitution, codes, laws, rules and other legal instruments of Vietnam, homosexual, bisexual persons are entitled to equality and non – discrimination before the law of all civil, political, economic, social and cultural rights, including the right to respect for private life under the Article 8 of the Civil Code The violations to their human rights or civil right shall be put under punishment

as those of other citizens

However, it is observed that Vietnamese legislators have been completely

indifferent to these subjects and have not considered the issues of homosexuals as the matters of human rights Despite the fact that homosexual persons are raising

EvelyncA Ankumah (1996), The African commission on human and peoples' rights: Practice and

procedures, The Hague; Lon don; Bostobn: Martinus Nijhoff Publishers, p 174

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their requests for legal protection because of the prejudice, abuse, discrimination, stigmatization, marginalization, harassment and violence facing them in their life, they have not been recognized as the subjects with special characteristics that must be protected from violations as some specific entities in the society such as women, children, disabled persons, elderly, ethnic groups But in recent times, the Standing Committee of the National Assembly during the meeting on April 1st, 2011 did identify that one of the main missions of the Congress in the period

of 2011- 2020 is to improve the legal protection for the homosexual, transgender and intersex people This really brings a ray of hope not only for homosexuals, but also for the LGBTI community to be put under State‟s protection from human rights violations

At the present, one of the most significant issues of homosexual‟s rights is

about the right to marry In fact, The Marriage and Family Law 1986 did not prohibit same-sex marriage For the reason that some same-sex weddings were later held in Vietnam but not approved by the community, many delegates, in the procedure of amending the Marriage and Family Law, expressed their opinion to ban marriage between same-sex couples Marriage between people of the same sex was then expressed in Article 10 of the Marriage and Family Law 2000 as one of the circumstances where marriage is forbidden This provision is explained in the opinion that “marriage is a combination of a man and a woman according to the nature to build families and to procreate, which creates the balance in human society and the connection of thought, emotion between male and female as well as carries out the reproductive function The prohibition of the same-sex marriage is explained by the reasons that such acts disobey the rule of nature and are inconsistent with those of the majority of people in society”.93

Likewise, gay couples are not be entitled to adopt children because this right

is only recognized for a person or two persons being husband and wife with their marriage registered according to the provisions of the Marriage and Family Law (Article 8 of the Adoption Law 2010) They can only adopt children alone and the other partner in the couple shall not be granted the legal parenthood Even so, homosexual people adopting children separately may encounter difficulties as one of the conditions for child adoption is "having good ethic qualities" (Clause 1 Article 14 of the Child Adoption Law 2010), while a person who has homosexual relations is not regarded as having ethic qualities in Viet Nam‟s society The

93

Tập Bài Giảng Luật Hôn nhân và gia đình (2009), Khoa Luật Dân Sự,Trường Đại Học luật TP HCM, Tp Hồ Chí Minh, p 67

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situation is similar to when homosexual persons want to have children through artificial insemination method because only a single women or the wife in the infertile couples is entitled to receive sperm for artificial insemination or for test-tube fertilization (Article 9, Decree 12/2003/ND-CP)

2.2 Rights of transgender people

2.2.1 In international law

To transgender people whose gender identity and gender expression differ from the sex assigned at birth, the non-conformance to the general norms is also acknowledged as one of the grounds causing them serious human rights

violations As regards the issues of transsexuals, the HCR has had opinions about

which sex would be attributed to a transsexual person for the right to marry in Article 23(2) of ICCPR: the sex determined at birth or the reassigned sex after

sex reassignment surgery (SRS) (so called gender reassignment surgery or gender confirming surgery too) Finally, it is the reassigned sex is accepted as the relevant sex for this right.94

Accordingly, it may be inferred that the term „sex‟ is large enough to include

the reassigned sex of a transsexual person And by extension, all human rights of transsexuals who have SRS are respected and protected by all binding treaties because "sex" is one of the prohibited grounds of discrimination that is evidently

enunciated in the language of international human rights instruments On the

other hand, gender identity (and/or gender expression) has not been expressed

specifically at international level as a prohibited ground of discrimination for the protection of all transgender in general In spite of this, in principle, gender identity must be interpreted as an "other status" and any discrimination based on the gender identity of a person would constitute violations to his or her human rights under the Articles 2 and 6 of the ICCPR

Further, respecting to transsexual persons, as mentioned in section 1.1.2, not

everyone can perform SRS (such surgery is only a small part of the gender transition which may last for many years with hormonal, psychological therapies and with or without surgery) because its cost is very expensive and not all transsexual persons wish to alter their body surgically Thus, issues related to the legal status and rights of transsexual persons who do not make such surgery have not been clear This matter needs much more attention and research from the view of international human rights law

94

See Sarah Joseph, Jenny Schultz and Melissa Castan, supra note 63, pp 608, 609