Besides, Vietnam is executing or makingand completing several legal documents related to LGBTI people’s rightsnamely: The Civil Code in 2015, the Penal Code in 2015 amended andsupplement
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
TRUONG HONG QUANG
RIGHTS OF HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE UNDER VIETNAMESE CURRENT LAWS
Major: Constitutional and Administrative law
SUMMARY OF DOCTORAL THESIS IN LAW
Trang 2The Doctoral thesis was completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES
Supervisor: Prof Dr VO KHANH VINH
Reviewer 1: Assoc Prof Dr Nguyen Thi Viet Huong
Reviewer 2: Assoc Prof Dr Nguyen Thi Hoi
Reviewer 3: Dr Nguyen Van Thuan
The doctoral thesis will be examined by Examination Board of Graduate Academy of Social Sciences at ………
The doctoral thesis can be found at:
- National Library of Vietnam;
- Library of Graduate Academy of Social Sciences
Trang 31 Rationale
Social life always witnesses the diversity and abundance at anytimeand there is no exception for emotion, feeling or sexual orientation In thepast, we mostly talked about a society where families are combination of
a man and a woman aiming to breeding only Whereas, same-sexrelationship or desire other gender were seen as an oddity, evenmorbidity Actually, homosexual, bisexual, transgender or intersex haveexisted in society for a long time and been clearly depicted in this modernlife
In modern human rights theory, rights of lesbian, gay, biosexual,transgender and intersex (LGBTI) people are more and more interestedlike rights of people living with HIV/AIDS or migrant workers LGBTIpeople are much related to sex, gender, gender identity and sexualorientation Their rights become controversial issues in many countries inlaw development and enforcement process However, in reality, the trend
of supporting their rights is increasing in the world
In Vietnam, LGBTI people have been paid more and more attention byscientists in recent years In term of jurisprudence, rights and law onrights of LGBTI people are also maintained both in theoretical andpractical aspects
The Consitution of the Socialist Republic of Vietnam issued in 2013has required the completion of legal system on human rights generallyand LGBTI’s rights particularly Besides, Vietnam is executing or makingand completing several legal documents related to LGBTI people’s rightsnamely: The Civil Code in 2015, the Penal Code in 2015 (amended andsupplemented in 2017), Law on Marriage and family in 2014,Transgender law, Law on Labor…
From above situation, research on human rights of LGBTI people willcontribute to perfecting legal provisions to ensure human rights, enhancesocial values of law in Vietnam and be fit with international trends
Therefore, the author chooses the topic “Rights of homosexual, bisexual, transgender and intersex people under Vietnamese current laws” to
study as a doctoral thesis in law with the desire of contributing todecrypting related matters comprehensively and systematically
Trang 42 Purposes and missions of the thesis
The thesis’s purposes are to provide exact, comprehensive and suitablearguments, then perfect Vietnamese legal system on rights of LGBTIpeople in the next time
The thesis performs several missions including:
- Studying theoretical issues on rights of LGBTI people; theories onrights and laws on rights of LGBTI people; factors effecting lawdevelopment and enforcement on their rights; development trends ofinternational laws, legal provisions of several nations all over the world onrights of these subjects
- Studying legal reality on rights of LGBTI people in Vietnam (currentsituation, legal provisions on rights of these subjects and some mattersraised in reality when executing laws)
- Based on results of theoretical and practical studies, the thesisproposes several opinions and solutions to complete Vietnamese law onrights of LGBTI people as well as contribute to promoting law enforcement
on rights of these subjects in the near future
3 Objects and scope of the thesis
The thesis objects are perceptions, realities and legal provisions onrights of LGBTI people in Vietnam
The thesis studies on rights of LGBTI people under Vietnamese legalsystem and focuses on specific rights, limited rights, unrecognized rights orrecognized rights but encountered many problems in reality There iscomparison to international law and laws of several nations in the world onrights of LGBTI people
4 Research methodologies
In order to resolve given tasks, the thesis uses dialectical and historicalmaterialism methods of Marxism-Leninism, Ho Chi Minh Thought;theoretical views and guidelines of the Communist Party of Vietnam andthe State’s law
The thesis also applies some research methods such as: analytical,synthesis, systematic, legal comparative methods; data statistic and analysismethod, analyzing practical situation method, historical method
Trang 55 New scientific contributions of the thesis
- In general, the thesis is a comprehensive research on perception, reality and legal provisions on rights of LGBTI people in Vietnam
- In particular, the thesis approaches and studies the mattersinterdisciplinarily and multidisciplinarily Not only approaches to legalperspective, research on LGBTI people and legal provisions on rights oftheir subjects but also combines sociology, psychology, anthropology,philosophy… By interdisciplinary and multidisciplinary methods allow theauthor has a systematic and comprehensive look on studied matters
- The thesis builds, supplements and deepens theoretical system onrights and legal provisions on rights of LGBTI people; theories on factorsaffecting law development and enforcement on LGBTI people’s rights; aswell as evaluates development trends of international laws, legal provisions
of several nations all over the world on rights of these subjects
- The thesis assesses current situations of LGBTI people in Vietnam;analyses and assesses legal situations and enforcement on rights of LGBTIpeople over the past few years Thereby, drawbacks, mistakes and reasons
of these situations are shown
- Based on theoretical and practical background, the thesis proposessome viewpoints and solutions with aiming to perfect legal provisions andlegal enforcement on rights of LGBTI people comprehensively,synchronously and appropriately with Vietnamese conditions
6 Scientific and practical meanings of the thesis
- Reseach results will contribute to develop theoretical backgrounds to complete Vietnamese law on rights of LGBTI people
- The thesis will also contribute to overcoming limitations andinadequacies in legal provisions on rights of LGBTI people currently bysuggesting solutions to perfect legal provisions and enforcement based onhuman rights recognization, respect, protection and assurance Givensolutions may support for law development and enforcement agencies onrights of LGBTI people
- The thesis can be used as a worthy and necessary reference in theactivities of the legislative, training majoring in laws and human rights,professional training and laws education
Trang 67 Structure of the thesis
In addition to the introduction, conclusion, references and appendices,the thesis consists of 4 chapters
Chapter 1 OVERVIEW ABOUT RESEARCH RELATED TO THE THESIS 1.1 Overview
1.1.1 Domestic studies
1.1.2 Foreign studies
1.2 Assessment studies related to the thesis
There are lots of studies related to the thesis which approach researchedmatters from different perspectives and interdisciplinarily That thesestudies were published on books, specialized journals, research, doctoralthesis and dissertation accounted for a larger amount in comparison withsocial organizations’ works, especially in recent 5 years The author alsopublished several related works
Results of these works which provide basic theoretical knowledge onLGBTI people, their rights and legal provisions on rights of LGBTI peopleare precious references for researching this thesis However, up to now,there is no systematic and comprehensive research on rights of LGBTIpeople according to Vietnamese law The studies just concentrate onhomosexual, transgender or bisexual (LGBT) in general, and research onrights of intersex people seems to be sporadic
Based on research situations, some matters have been resolved andreceived on the thesis at different level as following:
Theoretical perspective: basic matters on LGBTI people, natural rights,
rights of LGBTI people; overview on international law and legal provisions
of several nations all over the world on rights of LGBTI people
Practical perspective: current situations on LGBTI people in Vietnam;
some limitations and inadequacies in legal provisions on rights of LGBTIpeople (rights to together living of same-sex couples, transgender orgender-determination rights…)
Suggestively perpective: some solutions on together living of same-sex
couples, perfect legal provisions on transgender, gender-determination and
Trang 7rights on LGBTI people in other fields (criminal justice, gender equality…)
as well
It can be seen that foreign studies have provided a large amount oftheoretical and practical knowledge on rights of LGBTI people in theworld whereas there is a limitation in practical research in Vietnam Fordomestic studies, some matters related to this thesis have been not totallyresolved or given yet:
Theoretically, research on definitions of LGBTI people have not
explained clearly based on theoretical background of sexual orientation andgender identity and have not deeply studied theories on rights and legalprovisions on rights of LGBTI people yet Research on international lawand legal regulations of several nations all over the world on rights ofLGBTI people have been sporadic, and lacked of overview aboutdevelopment in each stage as well as concluded popular models They havealso witnessed imcomplete analysis and assessment of factors effecting lawdevelopment and enforcement on rights of LGBTI people The others havestill remained shortcomings both in theories and perceptions about LGBTIpeople
Practically, research have not fully studied about situations of LGBTI
people in Vietnam currently (studies on LGBT group only) Some fields oflaw on rights of LGBTI people have not been deeply analysed (Intersex,law access, legal aid, children, giving birth by scientific methods, working,sports, military service…) Mechanism for protection of rights of LGBTIpeople in Vietnam has not been comprehensively evaluated At the sametime, legal enforcement has just pointed out inadequacies of legalregulations but specific subjects (LGBTI people, State agencies, socialorganizations)
Suggestively, learnt from other nations’ experience, some given
solutions have not been suitable for Vietnamese conditions yet such as:recognizing same-sex marriage, recognizing non-surgery transgenderpeople, children adoption Therefore, those recommendations have notbeen totally incisive…
1.3 Matters need to be studied further in the thesis
First, study to raise the awareness of LGBTI people based on
theoretical background of sexual orientation and gender identity; and argue
Trang 8fully, comprehensively on objective, natural existence of LGBTI people aswell.
Second, study to shed light on theories on rights of LGBTI people and
legal regulations on rights of LGBTI people (their nature, reasons whylegislation has to recognize their rights, positions of their rights in legalsystem…) and factors effecting law development and enforcement onrights of LGBTI people
Third, overall study development and main legal models on rights of
LGBTI people all over the world
Fourth, study fully and comprehensively on situations of LGBTI people
in Vietnam currently and legal matters raised in recognization, respect,protection and assurance rights of LGBTI people
Fifth, study and evaluate legal situations of rights of LGBTI people in
Vietnam currently, especially focus on specific rights, unrecognized rights
or recognized rights but encountered limitations; and mechanism to protecttheir rights This matter in the thesis is also directed to legal projects ordrafts related to rights of LGBTI people which are in the process ofdeveloping and executing in Vietnam
Sixth, study on suggestions and specific solutions with the purpose of
perfecting legal provisions on rights of LGBTI people comprehensively,synchronously and appropriately with Vietnamese conditions
1.4 Research questions and scientific hypothesis
By evaluating given studies, the thesis is conducted based on followingtheories and hypothesises:
- Theories on sexual orientation and gender identity;
- Hypothesis on natural rights and legal rights;
Question 2: Why do we need to recognize rights of LGBTI people byusing law?
Trang 9Question 3: Which factors have an effect on law development andenforcement on rights of LGBTI people?
Question 4: Whether laws on rights of LGBTI people in Vietnam meetthe social requirements or not?
Question 5: Which solutions needed to perfect legal provisions andpromote legal enforcement on rights of LGBTI people in Vietnam?
From these research questions, the thesis provides scientific hypothesis
as follow:
“Rights of LGBTI people are one of new and complicated issues of law
on modern human rights It is necessary to study their rights based on theories of sexual orientation, gender identity, natural rights theory… Rights of LGBTI people consist of various rights; at the same time, specific rights of LGBTI people are included Law is one of vital means aiming to protect and ensure rights of LGBTI people whereass there are differents aftors affecting law development and enforcement on rights of LGBTI people such as cuture, science or technology Despite of some progressive points, Vietnamese legal system on rights of LGBTI people has still not met the social needs yet As a consequence, comprehensive, synchronous and appropriate solutions to complete lagel provisions and promote legal enforcement on rights of LGBTI people in Vietnam are needed”.
Chapter 2 THEORETICAL MATTERS ON RIGHTS
AND LEGAL PROVISIONS ON HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE’S RIGHTS 2.1 Theoretical matters on rights of LGBTI people
2.1.1 LGBTI people
Both theoretical and practical research have shown that LGBTI arenatural things of social development This matter is awared according tobasic definitions of sexual orientation, gender identity and our naturalphysical features
- Sexual orientation is one of four factors making sexuality which is anenduring pattern of emotional, romantic, affectionate and sexual attraction
to persons of any gender Homosexual and busexual are two of human
Trang 10sexual orientations; therefore, they are not genders Homosexual andbisexual people are male or female While the former is attracted by samesex ones, the latter is attracted to and wants to have relationships with bothsexes.
- Gender identity is known as a person’s internal sense of his/her owngender (same or different from his/her biological sex at birth) Transgenderpeople may realize that their assigned sex does not match gender identities.They do not need to conduct sex reassignment surgery to be called astransgender people After sex reassignment surgery, thay are transgenders
- Intersex is a general term used for variety conditions in which anindividual is born with a reproductive or sexual anatomy that doesn’t seem tofit the typical definitions of female or male Sex reassignment surgery is one
of problems that intersex people have to face with They often respond LGBTpeople’s movements as their aims seem to be similar
- While heterosexual people (who are attracted to people of the oppositesex) account for majority, LGBTI peope are minority group in this society.LGBTI is not pathology and unable to infect from one person to another
2.1.2 Rights of LGBTI people
- Rights of LGBTI people are human fundamental needs;
- Right of LGBTI people is a system of various rights in which consists
of new rights in comparison with human rights, for example: transgenderright of transgender people, gender determination right of intersex people;
- Rights of LGBTI people are both group rights and personal rights
2.2 Law on rights of LGBTI people
- Reasons for the law to recognize and protect rights of LGBTI people:
+ Law is considered as a vital tool to actualize, protect and promoterights of LGBTI people It is essential to recognize rights of LGBTI people
by law in the context of growing society;
+ LGBTI people have been suffered discrimination or abuse in differentaspects so they need protection by legal provisions;
+ It is reasonable that legitimate interests of every citizen are protected
A democracy and progressive law need to protect both rights of majoritiesand minorities;
+ If legal provisions do not recognize rights of LGBTI people, arisedconflicts will be not resolved in case LGBTI people require liberty and
Trang 11happiness Therefore, regulations are needed to resolve these conflicts, maintain social order and ensure rights of LGBTI people;
+ If legal provisions do not recognize rights of LGBTI people, someconsequences will be arised or continued like discrimination against
LGBTI people and their families or other negative impacts…
- Matters need to be recognized by law on rights of LGBTI people:
Under sexual orientation and gender identity aspects, legal provisions ofany nation need to consider and recognize many matters on rights of LGBTIpeople such as equality, discrimination, same sex relationship, children,transgender, sex reassignment… When considering and recognizing rights ofLGBTI people, legal provisions have to concentrate on dealing conflicts withlegitimate rights and interests of other subjects in society
- Formality of laws on rights of LGBTI people: It is not necessary to issue
separate legal documents to prescribe rights of LGBTI people, except forsome specific rights of transgender or intersex people
- Characteristics of process which laws consider and recognize rights of LGBTI people: This process seems to last for a long time It is complicate
and may conflict with State management needs, other subjects’ legitimaterights and traditional values
- Legal enforcement on rights of LGBTI people: Enfocing right of LGBTI
people is much more difficult and important than authorizing them in legalsystem because they are minorities and not easy to identify and approach.Solutions to enforce legal provisions play a significant role in protecting,ensuring and promoting rights of LGBTI people in reality Legalenforcement on rights of LGBTI people focuses on three main groups:LGBTI people, State agencies, other individuals and organizations
2.3 Several basic matters in international laws and legal provisions
of several nations on rights of LGBTI people
During the past time, international laws and legal provisions of severalnations all over the world on rights of LGBTI people have witnessedsignificant changes Accordingly, LGBTI people and their rights havebecome heated issued on human rights International organizations(especially United Nations) have recognized and raised a full awareness onLGBTI It takes a long and difficult time to recognize their rights in lawdevelopment trend of many countries However, it can be clearly seen that
Trang 12there are more and more nations recognize, protect, ensure and promoterights of LGBTI people.
International laws propose many recommendations related to LGBTIpeople and their rights which especially concetrate on equality anddiscrimination against them There are different reasons for non-promotion
on rights of LGBTI people, and political reasons, conflictions or beliefs,religions are common ones
2.4 Factors affecting law development and enforcement on rights of LGBTI people
Basically, law development and enforcement on rights of LGBTI peopleare affected by various factors including heterosexualism, culture, politics,beliefs and religions, communication and journalism, others… Thesefactors impact on law development and enforcement on rights of LGBTIpeople at different levels and different nations
Chapter 3 LEGAL SITUATIONS AND ENFORCEMENT ON RIGHTS OF HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX
PEOPLE IN VIETNAM CURRENTLY
3.1 Current situations of LGBTI people in Vietnam
By using actual surveys and collected information, it can be seen thatLGBTI people exist positively in Vietnam despite of little national research
or investigations Like other nations, LGBTI people in Vietnam have toface with lots of preconception or discrimination raised from families,society, friends and LGBTI groups themselves
3.2 Current situations of legal provisions on rights of LGBTI people in Vietnam
According to Vietnamese law, basically, LGBTI people own commonrights like other subjects which can be devided into two groups: (1) generalrights (applied for both LGBTI people and the others) and (2) specificrights (applied for transgender and intersex people) Legal provisions havenot acknowledged some rights related to LGBTI people: Marriage andchildren adoption of same-sex couples, surrogacy of LGBTI couples… Theterms namely sexual orientation, gender identity, homosexual, bisexual,transgender, intersex are rarely used in legal documents However, that
Trang 13rights of LGBTI people are expressed via different legislative techniques(marriage of same-sex couples, giving birth by scientific methods,surrogacy, execution of criminal judgements…) indirect recognize or notrecognize rights of these subjects.
In this part, the author focuses on analyzing and assessing legalprovisions on rights of LGBTI people which have not been recognized orlimitedly recognized These specific rights are directly related to liberty andhappiness of LGBTI people as well as recognization their other rights
3.2.1 Group of general rights of LGBTI people
This part assesses legal regulations on:
- Equality and non-discrimination rights in political, civil, economic, cultural and social life;
- Rights in marriage and family field;
- Rights to access law and legal aid;
- Rights in administrative field;
- Rights in criminal justice
3.2.2 Group of specific rights of LGBTI people
This part assesses legal regulations on:
- Transgender right of transgender people;
- Gender determination right of intersex people
- Some progressive and positive points are supplemented inconstitutional and legislative activities on rights of LGBTI people: TheConstitution in 2013, Law on Marriage and family in 2014, Civil Code in
2015, Penal Code 2015 (amended and supplemented in 2017), and Law ontemporary detention and custody in 2015…