Rights of lesbian, gay, bisexual, transgender and intersex people in international law and vietnamese legislation

HO CHI MINH CITY UNIVERSITY OF LAW INTERNATIONAL LAW FACULTY BÙI THỊ GIÁNG HƯƠNG STUDENT CODE: 3260037 RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE IN INTERNATIONAL LAW AND VIETNAMESE LEGISLATION BACHELOR THESIS ACADEMIC YEARS: 2007-2011 SPECIALTY SUPERVISOR: LLM NGÔ HỮU PHƯỚC LANGUAGE SUPERVISOR: LLM PHAN NGỌC TÂM HO CHI MINH CITY – 2011 ACKNOWLEDGEMENTS I would like to express my deepest appreciation to LLM Ngô Hữu Phước for his guidance and supervision to my thesis Also I would like to send my heartiest thanks to LLM Phan Ngọc Tâm for his supervision to the foreign language of the thesis My sincere gratitude to all my teachers who have equipped me not only with valuable knowledge of law but also with precious lessons about life during four years at the Ho Chi Minh City University of Law 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 Page LIST OF ABBREVIATIONS CRC Convention on the Rights of the Child ECHR European Convention on Human Rights ECtHR European Court of Human Rights HRC ICCPR ICESCR ICCPR-OP1 ICESCR-OP LGBTI Human Rights Committee International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Optional Protocol to the International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Economic, Social and CulturalRights Lesbian, gay, bisexual, transgender and intersex SSM Same-sex marriage SRS Sex reassignment surgery UDHR UNHCR Universal Declaration of Human Rights United Nations High Commissioner for Refugees Page 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 defin 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 define 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 d 2.4.1 In international aspect .Error! Bookmark not defined Page 2.4.2 In Viet Nam .Error! Bookmark not defined Conclusion Error! Bookmark not defined Bibliography Error! Bookmark not defined Page INTRODUCTION Imperativeness The fact that lesbian, gay, bisexual, transgender and intersex (LGBTI) people are an inalienable part of the human family, means they are entitled to freedom, welfare and equality as any individual in the world Nevertheless, nowadays the community of LGBTI people has been suffering discrimination, prejudice, abuse, mental, and physical violence against them without respect for their inherent dignity and rights All those human rights violations are mainly because of their different sexual orientation and gender identity 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 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) 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) Trần Ngọc Đường (2010), Về Tổ chức máy nhà nước pháp luật quyền người theo Nghị 48 Bộ Chính trị, Tạp chí Nghiên cứu Lập Pháp, số 15 (176) 8/2010, p Page 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 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 redetermination 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 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 nguoi duoc song theo dung gioi tinh cua minh", in the Record Summary of Scientific Conference “Vai tro cua Nha nuoc 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 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 University of Law P Thảo, 2011, „Sẽ sớm có luật bảo vệ người đồng tính‟, Dân trí.com.vn, January 5, 2011, available at http://dantri.com.vn/c21/s20-448760/se-som-co-luat-bao-ve-nguoi-dong-tinh-chuyen-gioi.htm (last visited May 25, 2011) Page 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 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 redetermination.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 Research methodology Thái Thị Tuyết Dung (2010), “Một số vấn đề việc thừa nhận quyền người đồng tính Việt Nam”, Kỉ yếu khoa học Vai trò Nhà nước việc bảo đảm quyền nhóm xã hội dễ bị tổn thương, Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày tháng 12 năm 2010, pp 128-131 Dương Hốn (2010), “Quyền kết người đồng tính”, Kỉ yếu khoa học Vai trị Nhà nước việc bảo đảm quyền nhóm xã hội dễ bị tổn thương, Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày tháng 12 năm 2010, pp 134-138 Cao Vũ Minh (2010), “Quyền người sống theo giới tính mình”; Kỉ yếu khoa học “Vai trò Nhà nước việc bảo đảm quyền nhóm xã hội dễ bị tổn thương, Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày tháng 12 năm 2010, pp 110-126 Đỗ Văn Đại Đào Thị Nguyệt (2010), “Hậu pháp lý việc xác định lại giới tính pháp luật Việt Nam”, Tạp chí Tịa án nhân dân, số (24) 12/2010, pp 14-16 Page 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 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 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  Page 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 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) Page 10 Relating to the conditions for the recognition of the reassigned gender of transsexual persons, each country has different conditions ranging from having had to undergo sex reassignment surgery, hormone therapy or something like that, through having no requirements for the recognition to other various requirements It is certain that Vietnam can not grant recognition to transsexual persons without any requirement But it should not require that a person has to complete gender transition by undergoing surgery or hormone therapy as a necessary condition for being recognized Such surgery and therapy may be used as evidence of gender transition rather than the sufficient condition for legal recognition because not all transsexual wish to that and not everyone is afford for such long-term medical procedures However, there should be requirements for the evidence of that person‟s gender dysphoria, of the profound and enduring conflict between their sex and gender identity For example, in United Kingdom, a person shall be granted a Gender Reassignment Certificate if he or she has had gender dysphoria, has lived in the acquired gender at least two years ending with the date on which the application for certification is made, and has intended to continue to live in that gender until death along with some evidential requirements from medical practitioners; that application shall be determined by a Panel in private In general, legal requirements for the recognition should be based on medical and scientific knowledge relating to this issue Such requirements are also necessary to precisely identify the transsexual persons who really have gender transition and prevent people whose gender identity not differ from the sex assigned at birth request for gender change for different purposes Upon the legal recognition to the reassigned gender of transsexual persons, they must be entitled to change their family and given name, to the correction of civil status, to be kept confidentiality of the gender reassignment, to marry and to found a family with that gender All their human rights and fundamental freedoms relating to that gender must be protected and ensured the implementation in practice * Stipulating the full, free and informed consent of intersex children to sex –reassignment surgery At the present, intersex children born in Viet Nam are considered to be „lucky‟ to be treated with hormone therapy and genital mutilation within the first 18 Page 66 months old to avoid unnecessary psychological trauma later in life.139 This practice raised an emergency for legislators to review the legal system concerning the issue The Decree 88/2008/ND-CP stated that the gender redetermination for intersex children under 16 years old only be made based on the request of parents and guardians In other words, the gender re-determination for intersex children can be decided by parents and guardians without his or her full consent, especially when the children are too small The gender re-determination could amount to treatment of gender reassignment including genital mutilation and hormone therapy, which would cause many unpredictable and negative consequences for the children as stated hereinabove Understanding the lessons drawn form other countries and acknowledging the spirit of Yogyakarta Principles as well obligations to comply with the provisions enshrined in the CRC, we need to consider issue very carefully As indicated, the CRC stated that the best interests of the child should be a primary consideration in all actions concerning them (Article 3) Every child has the inherent right to the preservation of identity (Article 8) If the child is capable of forming his or her own views, he or she must be ensured the right to express those views freely in all matters affecting the child, and the views of the child must be given due weight in accordance with the age and maturity of it The Article 18 in the Yogyakarta Principles also demanded: all legislative, administrative and other measures must be taken to ensure “no child‟s body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration” Therefore, it is necessary to stipulate that except for the surgeries and medical therapies that must be performed on intersex children to cure illness or disease indicated by intersex conditions and to protect their health and life, the „normalizing surgeries‟ including genital mutilation and other irreversible therapies carried out on them without any medical emergency must be delayed until the child is able to form its own views relating to the matter according to their age and maturity and to give his or her free, full, informed consent to such surgeries and therapies The genital mutilation involved in such „normalizing‟ 139 See Ngọc Hà, 2011, supra note 29, p9 Page 67 surgeries and even the sex hormone therapies can not attach a gender identity to the sex assumed of the child, they just cut off the healthy tissues of a normal body that the child may want later, leaving the pain, the possibility to be infertile, possible complications from surgery, psychological damage due to an incorrect imposition of gender reinforced by irreversible procedures, and other negative consequences for its physical and mental health.140 Such surgeries and therapies are violent violations of the right to bodily integrity, right to respect for privacy and the right to express the child‟s own views in all matters relating to it and be given due weight for them according to the age and maturity On the other hand, some benefits in performing such surgeries are also mentioned, such as reducing the risks of some diseases indicated by intersex conditions such as cancer, uninary infections, or reducing the risks that child would be rejected by parents for their appearance, and ostracized by friends and social communities Such interests are advised to take into account in each case to consider the best interests of the child.141 However, these benefits themselves, except for health benefits for intersex children, just impress the fact that people can not accept intersex children like the way they are and it is necessary to change them according to the prejudice and social stigma In some countries, parents are not allowed to make decisions concerning to „normalizing surgeries‟ Such decisions may be required to be given by a court since a wrong decision could lead unpredictably negative effects and the best interests of the each child are not usually respected by parents.142 Further more, it is complicated to specify what the best interests for each child are for they must depend on many factors under each circumstance Thus, the gender redetermination can not "be decided at the earliest ages" as affirmed by point b, paragraph 3, Article of Decree 88/2008/ND-CP and it must take legal measures and provisions to limit the ability of parents and doctors to alter intersex children‟s genitals and impose unnecessary hormone therapies on them Besides, it must be assured that an intersex child should be registered and raised as male or female but without the “normalizing” interventions And gender re-determination in terms of law shall be made available on the voluntary decision of the child when its own sense of gender identity which may be the different from the gender assigned emerges 140 Review section 2.3.1 See Surgery on intersex infants and human rights, supra note 106 142 Ibid Page 68 141 When the child is old and mature enough (based on scientific evidence) to form their views to the matter concerning its gender and surgeries performed on it There must be regulations to ensure that the free, full, and informed consent of the child to such „normalizing‟ surgeries must be enforced This requires a lot of conditions According to the recommendations of the Intersex North American Society, some requirements must be made such as: full disclosure of the condition, and all treatment options, including non-treatment must be given to the patient and parents; they should be told that “most cases are not medical emergencies and not require “normalizing” interventions” and “be given access to studies that support any medical recommendations” and “current practice of early surgery is criticized by many intersex adults, by some parents of intersex people, and by some physicians, and is therefore highly controversial.” “Providers should acknowledge that there are no data supporting the belief that “normalizing” interventions are beneficial or necessary to the psychosocial health of the patient, and should provide parents with information about current and future benefits, potential complications, potential side effects, and all treatment alternatives, including non-intervention All information regarding the risks of sex hormone treatments, including cancer risks should be provided to the patient and the parents”.143 In a nutshell, the Decree 88/2008/ND-CP should be amended immediately as the gender re-determination that could lead to genital mutilation surgery on the intersex children without their free, full, informed consent is a violation of the best interests of children, of the right to express their views on matters relating to them corresponding to their age and maturity, of the right to preserve the identity and of the right to be protected from violent attack on the integrity of the body under the Convention on the Rights of Child Such surgeries are still being performed on intersex children with the perception that they are good for them but are not supported by any scientific evidence and may cause negative consequences for physical and mental life of these children * Raising awareness of community on the diversity of sexual orientation, gender identity and sex development In combination with recommendations for legal measures stated herein before, the author would like to bring up other proposals to reinforce the protection to LGBTI community‟s human rights One of the important measures 143 See Human Frights commission of the city & county of San Francisco, supra note 105, p.25 Page 69 that used to be pointed out in other research pertaining to the issue is the changing and increasing public awareness of the diversity and normality of sexual orientation, gender identity and variations of sex development to remove the prejudice and stigma which have rooted in the views of the Vietnamese people and are the cause for all discrimination “None of us has grown up in an environment that is one hundred percent free of intolerance and exclusion Whether we like it or not, admit it or not, in various degrees ingrained prejudices shape our perceptions and actions".144 Therefore, it is not easy to change it overnight This long-term measure is one of the most effective ways to fight against discrimination and human rights violations related to LGBTI persons in Viet Nam, in particular, and on the world, in general This complex measure does require sensitivity and reasonableness in the implementation of LGBTI activists and Vietnamese legislators Homophobia and trans-phobia in Vietnam are not too extreme but they can develop in the worse direction without the prompt and appropriate measures to eradicate discrimination and abuse aimed at LGBTI persons, such as rational, open-minded, progressive education and propaganda methods Additionally, the influence of religion on the understanding of community to LGBTI persons must be put under much attention because many religions consider homosexuality, bisexuality, transgenderism are the worst sins while religions have great impact on the perception of religious people who cover most popularity of the world Furthermore, it is significant to take the serious and scientific investigations to capture accurately the proportion of LGBTI persons in the whole community as well as human rights violations against them in Vietnam to frame legal measures for respecting, protecting and fulfilling the human rights and fundamental of LGBTI community To come to the point of this chapter, it has been affirmed by the all international human rights bodies that the right to respect for privacy of homosexuals in their same-sex relations is ensured The HRC along with other treaty bodies and the Charter of Fundamental Rights of the European Union also stated sexual orientation is a prohibited ground of discrimination The right to use the reassigned sex after sex reassignment surgery of transsexual person has been recognized both at international and national level The human rights issues 144 See Navanethem Pillay, Principles on the theme of gender identity, sexual orientation and human rights, Office of High Commissioner for Human Rights, available at http://www2.ohchr.org/english/issues/opinion/Articles1920_iccpr/docs/JointSRsubmissionforNairobi workshop.pd (last visited May 31, 2011) Page 70 facing intersex children related to „normalizing‟ genital surgery has also caught the attention of international community The Yogyakarta Principles has stated that the free, full, informed consent of the child to such surgery must be ensured by all legal measures However, an important aspect of homosexual persons‟ civil rights – the right to marry and found a family – has not been admitted in many places around the world, including Viet Nam Otherwise, Viet Nam has been ignoring the difficulties in exercising human rights of its transsexual citizens by not recognizing their reassigned sex Legal provisions concerning the gender redetermination of intersex children who are under 16 years old need to be reviewed carefully To cut the long recommendations short, the author has provided some reasoning to support the right to marry each other and to found a family including the right to child adoption and other rights and obligations to homosexual couples It has been so clear that their relations are an aspect of privacy that needs to be respected and these relations violate nobody‟s rights and freedoms The misunderstanding on that homosexuals are not fit for being parents and family life has been mentioned and revealed Therefore, it is unequal that they are not granted that right or granted at a different level of rights or with a different form but not the marriage institution According to the progressive trend of the world and the fact that many transsexual persons in Viet Nam are being restricted their enjoyment of all human rights, Viet Nam should recognize their reassigned sex with the conditions that they are able to prove their gender dysphoria, the conflict between their sex and gender identity Upon the recognized gender, they must be entitled to act on it with all the rights and obligations enshrined in the law With respect to the gender re-determination that could lead to genital mutilation surgery on intersex children, it is necessary for the legislators to have legal provisions enforcing the free, full, informed consent of them to such surgery in accordance with their age and maturity Those medical procedures are actually a violation to the right to the bodily and physical integrity of the child, the right to express views in all matters relating to it and to be given due weight to such views Such surgeries have been performed without considering carefully the best interests of the child and perpetuating stigma and prejudice against the identity and dignity of them Page 71 Viet Nam should also take actions to establish reasonable regulations protecting human rights of the LGBTI community and such regulations must accord with the international human rights principles, and sexual orientation and gender identity must be clearly stated as prohibited grounds of discrimination so all their rights shall be respected, protected and fulfilled in practice That Viet Nam accedes to ICCPR-OP1 and ICESCR-OP shall reinforce more protection for LGBTI people when individual complaints against authorities‟ human rights invasions shall be received and considered by treaty committees It is also necessary to combine legal measures with social, educational, and psychological ones to assure that LGBTI persons‟ human rights and fundamental freedoms are truly defended  Page 72 CONCLUSION Discrimination, violence, abuse, maltreatment and violations against LGBTI people based on sexual orientation and gender identity has become one of the most severe human rights issues in the world nowadays Even though a human rights treaty dealing specifically with those people‟ issues has not been framed, according to the international human rights principles of equality and discrimination, it is an undeniable fact that LGBTI people have the right to universal enjoyment of all human rights and fundamental freedoms without discrimination of all grounds In the research of the some international and national legal sources, it is observed that human rights of LGBTI people have been increasingly recognized at both global and domestic level It has been stated by many treaty committees and most recently in the Charter of Fundamental Rights of the European Union that sexual orientation is definitely a prohibited ground of discrimination and all rights of homosexual and bisexual persons must be ensured Transsexual persons have also been guaranteed the right to respect for their privacy and recognized the right to use their reassigned sex for the purpose of marriage by HRC and by many countries The international community has as well paid more attention to intersex people whose human rights are invaded for the non-conformance to sex and gender norms A certain number of treaty committees and states have affirmed that genital mutilation surgery performed on intersex children without their full, free, informed consent in accordance with their age and maturity is a violation to the rights of those children Is has been observed that an international legal frame to protect rights of LGBTI persons and clearly forbid discrimination based on the sexual orientation and gender identity is potential In spite of such improvement, violence, abuse and discrimination against LGBTI people have no sign to stop in many parts of the world In Viet Nam, the maltreatment and discrimination toward LGBTI persons is unnoticed, but they have actually raised their voice for the protection of their human rights in legal terms Homosexual persons‟ right to marry and found a family has not been permitted to them for the reason that their relations are incompatible with natural rules Besides, Viet Nam has been ignoring the fact that many transsexuals are not guaranteed the exercise of their human rights when their reassigned sex is not recognized Genital mutilation surgeries decided to perform on intersex children Page 73 by their parents without the children‟s full, free, informed consent in accordance with their age and maturity are truly at variance with children‟s rights enshrined in the CRC Therefore, Viet Nam should take prompt and appropriate actions to protect human rights of LGBTI persons in its country and make sound solutions to specific human rights issues of each group including those of lesbian, gay, bisexual, transgender and intersex individuals Some recommendations have been proposed hereinabove to promote the protection of LGBTI persons‟ human rights at both international and national level In a few words: Firstly, the international community must put much effort into framing an international human rights treaty dealing specifically with LGBTI persons‟ human rights issues and obviously prohibiting discrimination based on sexual orientation and gender identity to protect LGBTI persons at global level Secondly, for the national protection in Viet Nam, it should improve the legal protection in compatible with the principles of international human rights law to LGBTI persons Thirdly, Viet Nam should accede to the ICCPR-OP1 and ICESCR-OP to ensure a mechanism to protect rights of those individual from the state‟ violations Fourthly, Viet Nam should gradually recognize the right to marry and found a family of homosexual couples for it is so clear that their relations are an aspect of privacy that must be respected and these relations violate nobody‟s rights in the society The misapprehension that homosexual persons are not fit for being parents have been mentioned and revealed Fifthly, Viet Nam should recognize the reassigned sex of transsexual persons to ensure the right to enjoyment of all human rights to which they are entitled Sixthly, it is necessary for the legislators to have legal provisions enforcing the free, full, informed consent of intersex children to genital mutilation surgery performed on them in accordance with their age and their maturity since they are actually a violation to the children‟s rights Further, Viet Nam should use social, educational and psychological measures to raise community‟s awareness on the diversity of sexual orientation, gender identity and variations of sex development They are long-term methods that need to be performed to eradicate all discrimination and human rights violations Page 74 based on the ground of sexual orientation and gender identity against LGBTI people Finally, with the limited ability in research, shortcomings of the thesis are inevitable and it must welcome more contribution Also, from the research of the author, it suggests that more issues need further deeper study such as: the application of international human rights law in relation to sexual orientation and gender identity in Viet Nam; the theory of discrimination in general and discrimination based on sexual orientation and gender identity in particular; specific human rights issues facing each group of lesbian, gay, bisexual, transgender and intersex people, especially, lesbian, female transgender, female intersex people need more authorities‟ attention for multiple vulnerabilities they suffer as LGBTI individuals and as woman; human rights of intersex children and adults; the impact of cultural and moral norms in relation to the establishment and recognition of rights of LGBTI persons in Viet Nam; the role of Viet Nam‟s courts in recognizing and protecting rights of LGBTI persons; the establishment of a regional human rights mechanism in Asia to protect human rights of LGBTI persons as well as the all citizens of Asia countries With such contributions and researches, the respect, protection and recognition of LGBTI people‟ human rights in Viet Nam shall surely be much improved  Page 75 BIBLIOGRAPHY LEGAL DOCUMENTS International treaties Convention on Rights of the Child International Covenant on Civil and Political Rights International Covenant on Social, Cultural and Economical Rights Optional Protocol to the International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Economic, Social and Cultural Rights United Nations Charter Universal Declaration of Human Rights Regional treaties African Charter on Human and People's Rights American Convention on Human Rights 10 Charter of Fundamental Rights of the European Union 11 European Convention on Human Rights Vietnamese legislation 12 Circular No 29/2010/TT-BYT dated May 24, 2010 guiding the implementation of a certain articles of the Decree No 88/2008/ND-CP dated August 5, 2008 on gender re –determination 13 Civil Code No 33/2005/QH11 14 Constitution of Socialist Republic of Viet Nam 1992 (amended in 2001) 15 Decree No 88/2008/ND-CP dated August 5, 2008 on gender re – determination 16 Decree No 12/2003/ND-CP dated February 12, 2003 on procreation based on scientific method 17 Law No 52/2010/QH12 on Adoption 18 Law No 22/2000/QH10 on Marriage and Family Law 19 Penal Code No 15/1999/QH10 (amended by Law No 37/2009/QH12) OTHER OFFICIAL DOCUMENTS 20 ICCPR General Comment No 18: Non-discrimination: 11/10/1989 21 Declaration of Montreal 2006, International Conference on LGBT Human Rights Page 76 22 Yogyakarta Principles on the Application of Human Rights Law in relation to Sexual Orientation and Gender Identity 23 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 24 Ending violence and criminal sanctions based on sexual orientation and gender identity: Statement by the High Commissioner, 2010, available at http://www.unhchr.ch 25 Surgery on intersex infants and human rights, 2009, Human Rights, Australia Human Rights Commission, available at http://www.hreoc.gov.au 26 Human rights commission of the city & county of San Francisco, 2005, A human rights investigation into the medical “normalization” of intersex people, available at www.isna.org 27 APA Council of Representatives, 2004, Sexual Orientation, Parents, & Children, Resolution, American Psychological Association, available at http://www.apa.org 28 OHCHR expert workshops on the prohibition of incitement to national, racial or religious hatre-Expert workshop on Africa, 2011, available at http://www2.ohchr.org 29 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 30 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 BOOKS In Vietnamese 31 Ban đạo nhân quyền Chính phủ-Văn phịng Quốc hội (2009), Những quy định pháp luật Việt Nam quyền người, Hà Nội 32 Hỏi Đáp Quyền người (2010), Khoa Luật Đại học Quốc gia Hà Nội, Nhà Xuất Bản Công An Nhân Dân, Hà Nội 33 Tập Bài Giảng Luật Hôn nhân gia đình (2009), Khoa Luật Dân Sự, Trường Đại Học luật TP HCM, Tp Hồ Chí Minh Page 77 34 Veronique Catry Jacques Ravanas (1997), Hội thảo quyền nhân thân bảo vệ quyền nhân thân pháp luật dân sự/Nhà pháp luật Việt Pháp, 24, 25, 26 November, Hà Nội, In English 35 EvelyncA Ankumah (1996), The African commission on human and peoples' rights: Practice and procedures, The Hague; Lon don; Boston: Martinus Nijhoff Publishers 36 Mai Thị Ngọc Anh (2010), Sexual minorities rights and the perspective of Vietnamese legislation on this issue, Bachelor thesis, HCM University of Law 37 Michael Bogdan (2000), Swedish Law in the new millennium, Norstedts JuridikAB, Sweden 38 Nancy J Cobb (2001), The Child, California State University, Los Angeles 39 Howard Davis (2009), Human Rights Law: Directions, 2nd edition, Oxford University Press, United States 40 Linda D Elrod (1993), Child Custody practice and Procedure, Deerfield, IL: Clark Boardman Callaghan 41 Paul R Ehrlich (2000), Human Natures: Genes, Culture, and the Human Prospect, Island Press, Washington D.C 42 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 43 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 44 Robert H Lawer Jeanette C Lauer (2000), Marriage and Family: The Quest for Intimacy, 4th edition, McGawHill Companies, Boston 45 Crawford Mary, Unger Rhoda (2000), Women and Gender: A Feminist Psychology, McGraw Hill, Boston 46 April Martin (1993), The Lesbian and Gay Parenting Handbook: Creating and Raising Our Families, HarperCollins Publishers, United States 47 Karon Monaghan (2007), Equality Law, Oxford University Press Inc, New York, United States 48 Clare Ovey and Robin C A White (2006), The European Convention on Human Rights, Oxford University Press, United States Page 78 49 Juha Raikka (1994), Do we need minority rights? Conceptual Issues, Martinus Nijhoff Publishers, The Hague/Boston/London 50 Robertson, A H and Merrills, J G (1996), Human rights in Europe: A study of the European convention on human rights, Manschester University Press, Manchester 51 Henry J Steiner, Ryan Goodman & Philip Alston (2007), International Human Rights in Context: Law, Politics, Morals, 3rd edition, Oxford University Press, United States 52 U.Oji Umozurike (1997), African Charter on Human and Peoples‟ Rights, volume2, Martinus Nijhoff Publishers, The Hague, London ARTICLES 53 Thái Thị Tuyết Dung (2010), “Một số vấn đề việc thừa nhận quyền người đồng tính Việt Nam”, Kỉ yếu khoa học Vai trò Nhà nước việc bảo đảm quyền nhóm xã hội dễ bị tổn thương, Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày tháng 12 năm 2010 54 Đỗ Văn Đại Đào Thị Nguyệt (2010), “Hậu pháp lý việc xác định lại giới tính pháp luật Việt Nam”, Tạp chí Tịa án nhân dân, số (24) 12/2010 55 Trần Ngọc Đường (2010), “Về Tổ chức máy nhà nước pháp luật quyền người theo Nghị 48 Bộ Chính trị”, Tạp chí Nghiên cứu Lập Pháp, số 15 (176) 8/2010 56 Dương Hoán (2010), “Quyền kết người đồng tính”, Kỉ yếu khoa học Vai trò Nhà nước việc bảo đảm quyền nhóm xã hội dễ bị tổn thương, Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày tháng 12 năm 2010 57 Cao Vũ Minh (2010), “Quyền người sống theo giới tính mình”, Kỉ yếu khoa học “Vai trò Nhà nước việc bảo đảm quyền nhóm xã hội dễ bị tổn thương, Khoa Luật Hành Chính Đại học Luật TP.HCM tổ chức ngày tháng 12 năm 2010 58 Nguyễn Thị Kim Ngân (2010), “Các đảm bảo cho việc thực nghĩa vụ cam kết quốc tế quyền người cùa quốc gia thành viên Liên Hợp Quốc”, Tạp chí Luật học, số 10/2010 59 Phạm Văn Tỉnh (2010), “Quyền người – Bản chất cách tiếp cận khoa học pháp lý”, Tạp chí Nhà nước Pháp luật, số 12(272) Page 79 WEBSITES In Vietnamese 60 Dân trí.com.vn: http://dantri.com.vn 61 LGBT.vn: http://www.lgbt.vn/ 62 Người lao động.com.vn: http://nld.com.vn 63 Sức khỏe đời sống – Cơ quan ngôn luận Bộ Y tế: http://suckhoedoisong.vn 64 Thethaovanhoa.vn: http://thethaovanhoa.vn 65 VietCatholic News: http://www.vietcatholic.net/News 66 Vietnam.net: http://vietnamnet.vn/ 67 Vietbao.vn: http://vietbao.vn/ 68 Ykhoanet.com: http://www.ykhoanet.com In English 69 A merican Psychological Association: http://www.apa.org 70 International Gay and Lesbian Human Rights Commission: http://www.iglhrc.org 71 International Lesbian, Gay, Bisexual, Trans and Intersex Association: http://ilga.org 72 Intersex Society North America Organization: http://www.isna.org 73 Lyric Organization: http://lyric.org 74 Lesbian Life: http://lesbianlife.about.com/ 75 Untied Nations Human Rights - Office of the High Commissioner for Human Rights: http://www.ohchr.org 76 United Nations organization: http://www.un.org 77 Yogyakarta Principles Organizations: www.yogyakartaprinciples.org 78 Wikipedia: http://en.wikipedia.org  Page 80 ... 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. .. characteristics of intersex peopleError! 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