Constitution set forth many requirements for the improvement of the legal system on human rights in general and the rights of gay, bisexual, transgender and intersex people in particular
The urgency of the subject
Despite societal diversity, the expression of emotions has been predominantly limited to heterosexual family structures However, the realities of same-sex attraction and gender diversity have existed throughout history, even if they were deemed abnormal in the past Today, homosexuality, bisexuality, transgender, and intersex identities are recognized and represented in modern society.
Human rights are one of the highest values that all countries uphold and protect Each country builds its own legal system based on political, socio-economic conditions and traditional cultural values of the country to ensure that human rights are implemented in the best way and most complete The development of human rights is associated with the economic, political, cultural and social development of each country In the theory of modern human rights, the rights of gay, bisexual, transgender and intersex people, as well as the rights of other groups such as people living with HIV/AIDS, migrant workers, etc., have received more and more attention than In which, the homosexual, bisexual, transgender and intersex groups are related a lot to issues of gender, gender, gender expression, sexual orientation and gender identity The rights of these subjects have become a controversial issue in many countries around the world in the process of law- making and enforcement
However, reality shows that the trend of supporting the rights of these subjects in the world is also increasing In Vietnam, gay, bisexual and transgender people have been increasingly studied by scientists in recent years In the field of legal
Despite scientific advancements, legal frameworks for the rights of LGBTQIA+ individuals require further exploration Issues that remain unresolved include: defining the rights of gay, bisexual, transgender, and intersex persons; establishing legal grounds for recognizing their rights; and determining the position of their rights within the legal system Addressing these gaps through comprehensive research and analysis is essential for developing a robust theoretical foundation for the legal protection of LGBTQIA+ rights.
In practice, like many countries in the world, gay, bisexual, transgender and intersex people are a minority group in terms of population (besides heterosexual majority group) and are increasingly present features in Vietnamese society Overall, according to Vietnamese law, this group of people currently or have almost all of the same rights as other heterosexuals However, for various reasons, they have not yet been legally recognized for some rights such as the right to marry of the same sex, the right to have children, or have recognized rights but no enforcement mechanism (gender transition) count)…
Besides, some rights in other fields such as criminal justice, civil rights, legal aid, gender determination still have barriers in practice Along with the traditional concept of social classes, stigma and discrimination against these subjects are quite common From that, it can be seen that the law on the rights of gay, bisexual and transgender people in Vietnam still has certain gaps The Constitution of the Socialist Republic of Vietnam promulgated in 2013 emphasized that “human rights, civil rights in politics, civil, economic, cultural and social are recognized, respected and protected protected and guaranteed according to the Constitution and the law” (Clause 1, Article 14) and “Everyone is equal before the law No one should be discriminated against in political, civil, economic, cultural or social life.” (Article 16) These new provisions of the 2013
Constitution set forth many requirements for the improvement of the legal system on human rights in general and the rights of gay, bisexual, transgender and intersex people in particular In addition, Vietnam is currently in the process of implementing or developing and completing a number of legal documents related to the rights of these subjects such as the 2015 Civil Code, the Penal Code, and the 2015 Civil Code 2015 (amended and supplemented in 2017), the Law on Marriage and Family in 2014, the Law on Gender Transformation, the Labor Code Starting from the above context, the study of gay rights, Bisexual, transgender and intersex will contribute to perfecting the law to ensure human rights, improve the social value of the law in Vietnam and in line with the general trend of the world
Seeking to ensure the equal rights of the LGBT community, I have selected the timely topic of "Ensuring the Equal Rights of Gay, Bisexual, and Transgender (LGBT) People: International Law and Reference Value for Vietnam" as the subject of my graduation thesis under the High-Quality Jurisprudence Program in compliance with Circular 23.
Purpose and mission of the study
Research purposes
The purpose of the thesis is to provide valid, comprehensive and appropriate arguments for a system of solutions to complete the Vietnamese legal system on the rights of gay, bisexual, transgender and intersex people gender in the coming time, especially to ensure equal rights.
Research mission
Based on the above research purpose, the thesis has the following research tasks:
- Research theoretical issues on homosexual, bisexual, transgender and intersex people; theory of rights and legislation on the rights of gay, bisexual, transgender and intersex people; factors affecting the formulation and implementation of the law on the rights of these subjects; development trend of international law and international law on the rights of these subjects
- Research on legal practice on rights of gay, bisexual, transgender and intersex people in Vietnam this object and issues raised in law enforcement practice)
- On the basis of results obtained from theoretical and practical research, the research thesis proposes viewpoints and solutions to improve Vietnam's law on the rights of gay, bisexual, transgender and intersex people gender and contribute to promoting the enforcement of the law on the rights of these subjects in the coming time.
Research object, research scope of the Thesis
Research subjects
The research object of the thesis is awareness, practice and law on rights, the guarantee of equal rights, of gay, bisexual and transgender people in Vietnam as well as international reference values.
Research scope
The thesis studies the rights of gay, bisexual and transgender people in the Vietnamese legal system, focusing on specific rights, which are limited, unrecognized or have been recognized but there are many problems in practice; There are comparisons with international law and the laws of some countries around the world on the rights of gay, bisexual and transgender people
The research methods used to conduct the thesis
Regarding the methodology, in order to solve the posed tasks, the thesis is based on the dialectical and historical materialism methodology of Marxism - Leninism; Ho Chi Minh Thought; theoretical viewpoints, lines of the Communist Party of Vietnam and laws of the State The thesis uses some specific research methods as follows:
The direct research methods are: analytical method, synthesis of legal provisions, statistics, the thesis also uses a little comparison to clarify the difference but has inheritance, perfecting regulations on a number of international and national laws different from ours.
Scientific significance of the Thesis
The thesis investigates the human and legal implications of ensuring equal rights for LGBT individuals Drawing upon international law and universal values, it provides a framework for Vietnam to address this issue The research aims to shed light on the legal and social protections necessary to guarantee the dignity and rights of all LGBT people, regardless of their sexual orientation or gender identity.
- The thesis contributes to overcome the limitations and inadequacies of the law on the rights of gay, bisexual, transgender and intersex people in Vietnam today by providing solutions to improve the legal system, Law enforcement is based on the requirements of the recognition, respect, protection and guarantee of human rights The solutions of the thesis can serve as a reference value for law-making agencies and law enforcement agencies on the rights of gay, bisexual and transgender people
The thesis serves as a pivotal reference source for scientific research and consultation in prestigious research institutions Its veracity and cogency make it indispensable for legal agencies and organizations engaged in refining Vietnam's legal assistance framework.
Thesis layout
In addition to the introduction, conclusion and list of references, the content of the Thesis consists of 3 chapters:
- Chapter I: General theory of homosexuals, bisexuals and transgenders
- Chapter II: Law on ensuring equal rights of gay, bisexual and transgender (LGBT) people
- Chapter 3: Directions and practical recommendations
General theory of homosexuals, bisexuals and transgenders
General introduction
Up to now, LGBT people have been classified as vulnerable people The concept of vulnerable groups is very commonly used in international legal documents and in research and practice activities on human rights around the world Although there is no general official definition of vulnerable groups, it can be understood from human rights literature and practices that this concept refers to groups, communities, or groups of people have a lower political, social or economic status, which puts them at greater risk of neglect or violation of human rights, and therefore require special attention and protection compared to with other groups and communities ( 1)
Some groups of people are considered vulnerable in international human rights law including women, children, people with disabilities, people living with HIV/AIDS, displaced or displaced persons, people stateless people, migrant workers, minorities (ethnicity, race, religion, gender ), indigenous people, war victims, those deprived of their liberty, the elderly, etc Over time, this list may be expanded to include groups of people at high risk of human rights in a variety of contexts and contexts (internationally, regionally, country, in the family, at work or in society) Making up the bulk of the content on group rights, the rights of vulnerable groups constitute an important part of international human rights law Many of the hundreds of international human rights instruments (including international treaties) are adopted by the United Nations (UN) after two basic
1 “International law on gay, bisexual and transgender human rights” - website of the Central Committee of the Vietnam Bar Association, January 23, 17
12 conventions on civil, political and economic rights , society , culture in 1966 is to codify the rights applicable to vulnerable groups
International law has significantly advanced in safeguarding the rights of LGBT individuals Country laws governing LGBT rights have been heavily influenced by international law regulations and recommendations This has emerged as a critical contemporary human rights concern, underscoring the importance of protecting the rights of all individuals regardless of their sexual orientation or gender identity.
Gay, Bisexual and Transgender
In society in terms of gender, there are only two genders, male and female, so gay, bisexual and transgender people are related to another concept called sexual orientation Sexual orientation (sometimes called “sexual orientation” or
“sexual orientation”) refers to an emotional or sexual attraction to someone of the opposite sex or of the same sex as oneself or both in the long run In the English term, the word LGBT refers to a group of people with sexual orientation minorities in the world, including 4 groups of people: lesbian (lesbian), gay (gay), transgender from male female-to-female or female-to-male (transsexual/transgender) and bisexual Thus, according to gender identity, there are transgender and non- transgender people; According to sexual orientation, people are divided into 4 main categories ( 2) :
- Homosexuality: Includes both lesbian and gay men who are sexually and romantically attracted to people of the same sex on a permanent and permanent basis
2 “Ensure the rights of gay, bisexual and transgender people in detention and detention in accordance with Vietnamese law” - Industry and Trade Magazine, May 16, 20
- Bisexuality: Those who have a gender identity (recognition, gender perception) different from that person's gender expression at birth, they always obsess about having the opposite sex from the "birth sex" study" when they were born, so they resorted to medical intervention to change their sex or "rediscover their true sex" This includes transgender people who have undergone surgery and transgender people who have not undergone sex reassignment surgery
- Heterosexuality: A romantic and sexual attraction to people of the same sex This is the most common sexual orientation of mankind and is a traditional concept of many countries around the world
- Asexual: A person who does not feel sexually attracted to anyone of any gender This is a completely different sexual orientation from heterosexual, bisexual or gay or people also known as LGBT+
With the above classification, homosexuality, bisexuality, and transsexuality are among the sexual orientations of mankind, unrelated to gender issues
In Vietnam, the concept of transgenderism has emerged in recent times Historically, individuals who identified as transgender were categorized as gay or third gender However, with the advent of the internet and online forums, individuals living between the sexes expressed dissatisfaction with this outdated perception They often grapple with gender identity confusion and face challenges in transitioning, including hormone therapy and openly acknowledging their gender identity.
3 “Ensuring the rights of gay and transgender people in criminal justice” - Legislative Research web, September
According to sociological studies, the proportion of the LGBT community has remained almost unchanged in all societies and eras: it accounts for about 3- 5% of the population of each country - this percentage includes people who have sexual relations sex with others people of the same sex infrequently If we take the safe average rate that many scientists admit is 3% of the population as LGBT, the number of LGBT people in Vietnam between the ages of 15 and 59 is about 1.65 million people (calculated according to the population of Vietnam) ) in 2007 there were 55.38 million people aged 15-59 years) ( 4)
Currently, the laws of some countries recognize equal rights and treat same- sex couples as husband and wife However, in many countries, even though homosexuality is not considered a crime, investors are still subjected to social scrutiny, discrimination, sometimes beatings and assaults, especially against those traffickers Some other countries, like Muslim countries , do not accept investors and homosexuals can be punished with imprisonment or even death There are at least 80 countries in the world, homosexual sex is still punishable by law, in some places life imprisonment, even this crime can be sentenced to death (there are 7 countries) ( 5)
In fact, to varying degrees and angles, almost all current international instruments on human rights refer to both individual rights and group rights Regarding the development of group rights, currently, in addition to the rights mentioned, LGBT people's rights are one of the rights that are being advocated for codification in international law This is a controversial issue in the field of human rights in recent decades LGBT rights advocates have founded organizations and
4 “Ensuring the rights of gay, bisexual, transgender people and the issue of constitutional amendments”,
5 “Ensuring the rights of gay and transgender people in criminal justice” - Legislative Research web, September 1,
15 launched global movements to advocate for the recognition and codification of same-sex marriage rights; the right of same-sex male couples to adopt children; and above all the right of all LGBT people to not be discriminated against because of their sexual orientation and gender identity
The LGBT rights movement has expanded beyond national boundaries, garnering support from international and regional organizations such as the European Union and the Organization of American States In 2008, the United Nations adopted the Declaration on Sexual Orientation and Gender Identity, condemning violence, discrimination, and other abuses against LGBT individuals Despite its support from the EU, the Declaration faced opposition from some countries, primarily Arab nations and the Vatican This Declaration marked a significant milestone in advancing human rights for the LGBT community at the UN.
1.2.3 The importance and meaning of the law for groups of people
Despite recent societal progress in acceptance, gay people continue to face societal disadvantages, discrimination, and unfairness in public relations In Vietnam, the government acknowledges and protects the rights of gay, bisexual, and transgender individuals through its adherence to international conventions and the inclusion of these rights in legal documents such as the Constitution, Civil Code, Penal Code, Labor Code, and Marriage and Family Law.
6 “International law on gay, bisexual and transgender human rights” - website of the Central Committee of the Vietnam Bar Association, January 23, 17
However, this recognition is still cannot guarantee all the rights of homosexuals The reality of recent years has shown that the demand for marriage between people of the same sex, discrimination is still widespread, new relationships arise in terms of adoption, children born in the past few years Cohabitation also needs to be adjusted Therefore, building a legal basis is extremely important and necessary to ensure and enforce the rights of gay, bisexual and transgender people ( 7)
1.2.4 Ensuring equal rights for groups of people
LGBT are people with normal genetic, biological and hormonal structure; body is normal male or female; and they have a clear perception of whether gender is male or female They just differ from most people in their sexual orientation The reason why a person has a different sexual orientation than most people in society is still unknown to modern medicine However, this is not a conscious choice because this sexual orientation is formed at a very early age, the individual and the parents are completely out of control and not responsible for that tendency this
LGBT people are not mentally ill or have a personality disorder, their homosexual behavior cannot be transmitted to people with heterosexual orientation Therefore, it is not possible to force, treat or apply psychotherapy to eliminate homosexuality; Nor can a heterosexual become a homosexual Attempting treatment to change sexual orientation not only doesn't work, it can do a lot of harm ( 8)
Thus, LGBT is a minority group in terms of sexual orientation in society They do not have incurable diseases and this sexual orientation cannot be
7 “Guaranteeing the rights of homosexuals according to current Vietnamese law” - DTU Journal of Science and Technology Magazine, 20/02/20
8 “Ensuring the rights of gay, bisexual, transgender people and the issue of amending the Constitution” -
Law on ensuring equal rights of gay, bisexual and transgender (LGBT) people
Legislation for gay, bisexual and transgender people
2.1.1 Views and laws of Vietnam in particular
In Vietnam, almost the law does not recognize the rights of investors However, some historical documents in our country have mentioned this issue, such as in the 16th and 17th centuries, there were a few kings whose concubines were men or history books say that King Khai Dinh has 12 wives but is powerless or doesn't like to be around women, only likes men The Hong Duc Law does mention rape, adultery and incest but does not mention homosexuality The French colonial government also did not outlaw homosexual acts in the colonies, although it determined female prostitution to be illegal Currently, although there is no law prohibiting same-sex sex , the Law on Marriage and Family prohibits marriage between people of the same sex
The Civil Code (BLDS) 2005 stipulates: In civil relations, the parties are equal No reason for differences in terms of ethnicity, gender, social class, economic circumstances, beliefs, etc religion, cultural level, profession to treat each other unequal (Article 5) Then, Article 36 stipulates the right to gender reassignment: “A person's gender reassignment shall be carried out in cases where that person's gender is born with a birth defect or has not been accurately determined, and requires prior consent medical intervention to clearly define sex”
In order to detail Article 36 of the Civil Code, the Government issued Decree 88/2008/ND-CP, which stipulates the prohibited acts: “Performing gender equality for people who have completed their sexual orientation and prohibits
9 “Ensuring the rights of gay and transgender people in criminal justice” - Legislative Research web, September 1,
21 discrimination against persons with sex reassignment.” ( 10) The Decree mentioned gender reassignment for people with birth defects in terms of gender or gender that has not been correctly identified These people are completely different from investors Currently, many investors strongly disagree with the provisions of this Decree 88, because they have closed the door of the Trade Union to return to their own desires The Decree only stipulates that gender reassignment for people with gender disabilities or who cannot distinguish between male and female, but not gender equality for people who have completed gender because these may be cases where there is a difference in gender identity psychological distortion ( 11)
However, the issue raised by the Decree is too narrow, just stopping at gender re-determination, not gender change, allowing "gender clarification" but not "gender re-determination" because if there is no gene or male personality, women do not want to convert, although there are many opinions that the restriction of gender reassignment comes from the cause of avoiding abuse because of commercial needs trade, or in sports, or evading a wanted warrant after committing a crime
The above restriction is somewhat contrary to the trend in the world, when many countries recognize the right of transgender people such as the US, Canada, Serbia, Thailand, Singapore, Philippines, India Argentina has just allowed transgender and gender change calculated on relevant documents on October 3,
2012 Most countries allow an unlimited number of transgender individuals to have genitals of the sex they do not want Outside of Thailand, which is the number one transgender center in the world, the second place suddenly belongs to the Islamic country of Iran 25 years ago, Iran's Supreme Leader Ayatollah Khomeini
10 Decree 88/2008/ND-CP issued by the Government on gender reassignment
22 enacted a law for transgender and gender change on related papers, now the Iranian government pays 50% of transgender costs
Obviously, people who do not have sex defects but have been transgender in foreign countries will not be recognized, or those who have transgendered but still have no chromosomal defects but voluntarily change their gender will have legal consequences The legal issues related to them are very complicated, especially the criminal and procedural regulations
The Law on Marriage and Family (1986) did not explicitly prohibit same-sex marriage, allowing for sporadic same-sex weddings.* The Law on Family and Marriage (2000) defines marriage as a heterosexual union, prohibiting same-sex marriages under Clause 5, Article 10.
The 2006 Law on Gender Equality also only identifies that Vietnam has two gender groups that are male and female There are no regulations to define another gender (gender indicates the characteristics, position, and role of men and women in the world) all social relationships, sex refers to biological characteristics of men and women - Article 5)
Thus, the current Vietnamese law does not recognize the existence of people with ethnic minorities, NCGs (except in the case of gender reassignees) as well as their marital relationships, so the Legal issues arise are left open because they are not allowed to change personal information However, along with the general development of science and human awareness, it is time for the law to recognize the existence of people with gender minorities, NCG to create equality and
23 recognize the existence of people with gender minorities and the role of investors in society From there, we can more effectively protect their legitimate rights and interests as well as handle their violations
2.1.2 Rights of LGBT people according to Vietnamese law
Firstly, there is still stigma and discrimination against homosexuals in political, cultural, economic and civil life
Homosexuals still suffer from discrimination today Discrimination against homosexuals does not only come from the community, public services, but also occurs at schools or from the families of gay people Domestic violence acts mainly against homosexuals when they come out with their sexual orientation Domestic violence is not just abuse, beating, but also verbal violence (such as disparaging, insulting homosexuals) Many gay people do not openly disclose their sexual orientation for fear that their family will not accept them as gay and that homosexuality is a disease, a trend, and a temporary competition So there have been cases of fathers raping children to cure homosexuality, mothers hiring people to rape their children because they think homosexuality can be cured ( 12) , or parents arresting, imprisoning, beating children for discovering their children
"being" homosexual Not only is their family not accepting, gay people are also shunned by friends in the educational environment
Discrimination against homosexuals also occurs in the work environment Discrimination about the sexual orientation of employees among themselves and of employers and employees on issues of promotion, income, and job positions is still going on Currently, there is no law against discrimination based on sexual orientation as well as making discriminatory behavior based on sexual orientation
12 P.Thao, Domestic violence against homosexuals, accessed 11/5/2013, https://dantri.com.vn/suckhoe/bao- hanh-voi-nguoi-dong-tinh-den-tu -chinhgia-dinh-1368670270.htm
24 a form of labor discipline prohibited in the Labor Code (Labour Code) Therefore, it is necessary to have a mechanism and policy to protect homosexuals from discrimination in civil, economic, political and cultural life In the survey on “Is it because I am LGBT? Discrimination on the basis of sexual orientation and gender identity in Vietnam” , when asked about the desire to enact a anti-discrimination law, prohibiting discrimination on the basis of sexual orientation and identity 87.5% of those surveyed agree and think that the promulgation will give LGBT people (lesbian, gay, bisexual, transgender people) better protection And most people believe that with the improvement in social attitudes along with the generational shift, it is possible that the law will ensure the effect in practice
Second, awareness of homosexuals and gay rights is misleading and limited
Experience and lessons learned
2.2.1 Principles for ensuring the rights of LGBT people
Gay rights are most clearly expressed in 3 principles
• The right to the universal enjoyment of human rights: All human beings are born free and equal in dignity and human rights People of all sexual orientations and gender identities have the right to the full enjoyment of all human rights have all the properties of human rights such as: inalienability, indivisible, universal, interdependence
All individuals are entitled to human rights regardless of their sexual orientation or gender identity The law must not discriminate based on these characteristics and must provide equal protection against discrimination This protection extends to all human rights, ensuring that everyone has equal opportunities and access to justice under the law.
- Discrimination based on sexual orientation and gender identity includes any distinction, exclusion, restriction or choice based on sexual orientation and gender identity with the intent or effect of nullify or impair equality before the law or fair protection by law, or to the equal recognition, enjoyment or
38 practice of all human rights and fundamental freedoms Discrimination on the basis of sexual orientation and gender identity can, and often does, compound and make for discrimination on other grounds, including sex, race, age, religion Education, disability, health and economic status, worsened
• Right to be recognized before the law:
- Everyone has the right to be recognized as a person before the law anywhere People with different sexual orientations and gender identities have legal status in all aspects of life Each person's sexual orientation and self-determined gender identity are integral to their personality and are one of the most fundamental aspects of self-identification, dignity and freedom
No one should be forced to undergo medical procedures, including sex change surgery, sterilization or hormone therapy, as a requirement for recognition of their gender identity No legal relationship, such as marriage and parenthood, may be established to prevent legal recognition of a person's gender identity
- The Yogyakarta Principles are the first international legal document that recognizes and protects gay rights This set of principles is very important in moving towards the complete elimination of homophobia in the world; Countries that are considering and developing laws for homosexuals can consider this set of principles as a source from which to build a legal document that is most suitable for their country, while ensuring that they do not violate international law
In a significant milestone, 12 UN organizations made history in September 2015 by issuing a joint recommendation urging 193 member states to protect the rights of LGBTI individuals, including those with intersex variations The recommendation emphasized the fundamental principle that all individuals, regardless of their sexual orientation, gender identity, or gender expression, are entitled to the same rights and protections.
39 have an equal right to live a life free from violence, stigma and discrimination International human rights law was created to ensure that all of these rights are enjoyed by all human beings and that the laws of member states do not contradict the principles of this code While efforts to protect the rights of the LGBTI community are increasing in many countries, millions of LGBTI people and their families are still suffering serious human rights violations The recommendation includes three main contents, calling on member states:
➢ Develop laws to protect LGBTI people from violence
➢ Repeal laws that discriminate against LGBTI people, including laws that arrest, sanction, and discriminate against people on the basis of their sexual orientation and gender expression
➢ Protect LGBTI people from discrimination in all situations, ensure LGBTI people have equal participation in all aspects of life
2.2.2 Guarantee of rights in law
Legal frameworks must be enhanced to safeguard the fundamental rights of homosexuals This includes protecting their freedom, equality, and non-discrimination in all aspects of society—political, civil, economic, cultural, and social.
Over the past time, Vietnam has continuously promoted gender equality and anti-discrimination rights under the Law on Gender Equality and the CEDAW Convention Article 14 of the 2013 Constitution stipulates: “In the Socialist Republic of Vietnam, human rights and citizenship in politics, civil, economic, cultural and social are recognized and respected respect, protect and ensure in accordance with the Constitution and the law", however, human rights and citizens' rights may be restricted according to the provisions of law in case of necessity for reasons of national defense and security, social order, safety, social ethics, community health This may be one of the reasons why gay rights are
40 limited in practice due to socio-ethical factors However, this restriction is aimed at protecting the common interests of all members of society, not for the purpose of restricting the rights of a certain group of people or individuals in society Therefore, homosexuals also need to be treated fairly, recognized, respected and guaranteed their rights under the Constitution and the law Vietnam has a Law on Gender Equality, but there has been no record of anti-discrimination, discrimination based on gender identity and sexual orientation, anti-discrimination against people of the same sex Therefore, the law also needs to stipulate sexual orientation and gender identity as a basis to avoid discrimination, not just discrimination based on male or female gender For many countries around the world, sexual orientation, gender identity have been codified in the provisions of law But besides that, many countries still have extreme situations such as banning homosexual phenomena or criminalizing homosexual people ( 19)
Clause 1, Article 8 of the Labor Code ( 20) prohibits “Discrimination on the basis of sex, ethnicity, skin color, social class, marital status, creed, religion, HIV infection, disability or other reasons establish, join and operate trade unions” This is the basis for applying handling measures against employers and employees together when discriminatory acts occur in the working environment However, this law does not prohibit discriminatory practices based on sexual orientation and gender identity, gender expression, which are aspects directly related to same-sex workers and are one of the The reason why gay people are stigmatized the most today Therefore, there is no legal basis for gay employees to protect themselves against stigma and discrimination in the working environment Therefore, the author proposes to amend and include content related to sexual orientation in the content of the Labor Code That is to include discriminatory behavior based on
19 “Guaranteeing the rights of homosexuals according to current Vietnamese law” - DTU Journal of Science and Technology Magazine, 20/02/20
41 sexual orientation and gender identity into the Labor Regulations, as a basis for applying labor discipline if violations occur, and at the same time provide the above provisions will affect the consciousness of employees, employers respect diversity, create an equal and civilized working environment Therefore, once again, the author proposes to put discriminatory acts based on sexual orientation and gender identity into violations of labor discipline in the Labor Regulations A number of countries now respect diversity and are particularly concerned about discrimination against LGBT people in general on the basis of sexual orientation, gender identity and gender expression by enacting laws relating to LGBT people related to this area such as: Law on Gender Equality and Sexual Orientation (Thailand), Law Against Discrimination (Europe), EU Directive 2000/78 on anti- discrimination in the workplace, Law preventing discrimination against the LGBT community (Japan) Vietnam's efforts in ensuring the rights of the LGBT community cannot be denied with its commitments to protecting and promoting the rights of people LGBT at international conventions as well as regional dialogue forums In June 2014, during Vietnam's second Universal Periodic Review (“UPR”) at the United Nations Human Rights Council, Vietnam accepted Chile's recommendation to develop an anti-corruption law discrimination on the basis of sexual orientation and gender identity (A/HRC/26/6, para 143.88) Along with Chile, Norway also recommends that Vietnam clearly define "Sexual orientation" and "gender identity" as discriminatory platforms prohibited in the Labor Code and related laws On that basis, the Vietnamese Labor Code can refer to the experience of other countries to develop a better Labor Code by internalizing anti-discrimination policies based on sexual orientation, gender identity, and gender identity directly in the Labor Code and related laws, or develop an anti- discrimination law to reduce discrimination and create an equal working environment for employees to protect gay people in particular and all people in
42 general from discriminatory practices based on sexual orientation, gender identity for gay people and the LGBT community
Second, perfecting the law in the field of marriage and family
Lawmakers have expressed a positive view in abolishing the ban on marriage between people of the same sex, and at the same time officially recognizing the right to transgender in Vietnam (as stipulated in the Civil Code 2015) effective January 1, 2017) Through the analysis of the theory as well as the reality of homosexuals, the author finds that the legalization of cohabitation relationships of same-sex people is extremely necessary to solve the reality of the needs of nearly 2.8 people million gay people in Vietnam today ( 21) At the same time, the fact that gay people live together is not recognized, without any ties in homosexual relationships, leading to many bad consequences Therefore, permitting marriage between people of the same sex or accepting a registered form of cohabitation will be binding, making gay people more responsible for themselves and their partners more responsible to the family and the whole society At the same time, the traditional concept of marriage in our country is still heavy, especially on the issue of maintaining the race Therefore, changing the perception of traditional marriage in a short period of time will face many difficulties, especially the opposition from the public Therefore, in the immediate future, the author recommends that you consider recognizing a registered form of cohabitation This is not only a suggestive step but also a way to assess the situation of registered cohabitation before going to legalize same-sex marriage Many countries have recognized the registered form of cohabitation for same-sex couples and initially had some success before legalizing same-sex marriage like
Directions and practical recommendations
Chapter 3: Directions and practical recommendations
3.1 Difficulties and inadequacies in practice
Not only in Vietnam, but also in many parts of the world, people of the LGBT community are also discriminated against For example, in Brazil, people of the LGBT community always live in fear because of violence and attacks and was murdered due to discrimination against LGBT people in this country But really, they are ordinary people, even more extraordinary than those of the male or female gender, they have done nothing wrong, when they were born, they were born with their own gender that biology Not simply male or female as we think, there is also intersex, in many species of creatures in nature, intersex is still found a lot, we humans are also creatures on earth, at Why don't we respect biological sex diversity?
It is the discrimination and stigma in the people around them in daily life, sometimes it comes from their own neighbors and relatives, that makes people of the LGBT community always live in torment and mood uncomfortable and guilty, they avoid and gradually separate from society in many aspects, from work to crowded places, they feel that they are looked at with different eyes, many people even think that "Bede is like What can you do?"
Because of that, many people of the LGBT community do not want to go out to socialize, many people only go out at night and only work in music groups, circuses, etc or work in public places with people from the LGBT community
The misunderstanding of people around people about human gender, the stubborn and rigid default of only male or female gender have led to discrimination and different treatment for people of the opposite sex the third nature or people of the LGBT community have unwittingly removed LGBT people from their lives,
47 they have been deeply hurt physically and mentally, more painfully, many people have had to find something die to find peace
3.2.1 Proposals on the issue of recognition of rights
➢ About common sense: Stop stigmatizing
Overcoming prejudice and discrimination against the LGBT community in Vietnam demands a concerted effort from both the government and the community itself The government must implement comprehensive policies that protect the rights of LGBT individuals and foster an inclusive society The LGBT community, in turn, must organize and advocate for its rights, raising awareness and challenging societal biases Only through a collaborative approach can Vietnam create a truly equitable society where all citizens are treated with dignity and respect regardless of their sexual orientation or gender identity.
To foster a harmonious society, it is imperative to safeguard and empathize with LGBT individuals who have experienced bias LGBT advocates bear the responsibility of heightening public consciousness to combat misconceptions that fuel human rights violations within the Vietnamese community By dispelling these misunderstandings, we can pave the way for a more inclusive and just society that respects the rights and well-being of all.
Education can play an active role in raising awareness of the LGBT community LGBT students are often subjected to verbal harassment in Vietnamese schools Therefore, it is necessary to take specific measures to prevent and combat discrimination in schools
Many argue that a thriving LGBT community is crucial to a country's culture Ignoring the importance of LGBT rights and the LGBT community being subjected to violence is a big mistake
➢ Stemming from fundamental freedoms, equal rights for all, and recognizing the perceived barriers of society that can lead to restrictions on rights or not allowing gay people to enjoy their rights legitimate interests, it can be argued that it is necessary to create opportunities for homosexuals to independently solve their problems Based on the cultural, economic, political and social characteristics in Vietnam, legislators need to research
48 and consider to make legal provisions on homosexuals to ensure fairness and development develop society according to the motto of putting people at the center of all progress
Currently, the Vietnamese legal system does not have separate regulations for homosexuals, but the provisions on human rights protection in general are relatively complete Within the scope of this study, the recommendations are made mainly based on the proposal to supplement the existing provisions of the current Vietnamese law 23
• Right to recognition and protection from discrimination
Recognizing the existence of homosexuals and granting them equal rights are crucial steps towards protecting their rights Legal recognition of gay rights necessitates the implementation of protective measures The establishment of anti-discrimination regulations is a proven mechanism to ensure equal rights for homosexuals in practice, as demonstrated by laws enacted in various countries worldwide Without such mechanisms, the recognition of equal rights remains ineffective.
In Article 2 of the International Convention ( 24) on the Rights of Persons with Disabilities, discrimination on the basis of disability is understood as: any discrimination, exclusion or restriction on the basis of disability that is intentionally or with the effect of impairing or nullifying the perception,
23 “Proposal to recognize and protect gay rights in Vietnam”- Truong Hong Quang's blog
24 International Convention on the Rights of Persons with Disabilities
49 enjoyment, and realization of human rights and fundamental freedoms in the political, economic, social, cultural civil and civil or any other area on an equitable basis with other members of society, including all forms of discrimination, including refusal to make reasonable accommodations
Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women defines: Discrimination against women is any distinction, exclusion or restriction made on the basis of gender, which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise of human rights and freedoms by women, regardless of their marital status basically in economic, political, cultural, social, civil or any other fields on an equal basis between men and women
In Vietnamese law, Clause 3, Article 2 of the Law on Persons with Disabilities 2010 ( 25) defines discrimination as an act of alienation, rejection, ill- treatment, defamation, prejudice or restriction of the rights of persons with disabilities disabled person because of his or her disability In which discrimination is understood as contempt or disrespect for another person because of his or her disability (Clause 2, Article 2) Clause 5, Article 5 of the Law on Gender Equality 2006 explains: gender discrimination is the restriction, exclusion, failure to recognize or disregard the roles and positions of men and women, causing inequality between men and women women in the fields
• The right to equality before the law and equal protection of the law
Equality before the law and the rule of law is the basis and common principle in the protection of all human rights This means that everyone, equally,
25 Law on Persons with Disabilities 2010
50 should not be discriminated against in the enjoyment of rights, in the performance of their obligations and in the legal responsibilities set forth in the law Article 52 of the 1992 Constitution, amended and supplemented in 2001 stipulates: "All citizens are equal before the law" When concretizing the above provisions into other legal documents, the legislators have not really paid attention to the equal rights of homosexuals
• Right to work, to enjoy fair and favorable working conditions
Article 55 of the 1992 Constitution, amended and supplemented in 2001 stipulates: "Work is the right and obligation of all citizens", specifically in Article