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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES TRUONG HONG QUANG RIGHTS OF HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE UNDER VIETNAMESE CURRENT LAWS Major: Constitutional and Administrative law Code : 9.38.01.02 SUMMARY OF DOCTORAL THESIS IN LAW HANOI - 2019 The Doctoral thesis was completed at: GRADUATE ACADEMY OF SOCIAL SCIENCES Supervisor: Prof Dr VO KHANH VINH Reviewer 1: Assoc Prof Dr Nguyen Thi Viet Huong Reviewer 2: Assoc Prof Dr Nguyen Thi Hoi Reviewer 3: Dr Nguyen Van Thuan The doctoral thesis will be examined by Examination Board of Graduate Academy of Social Sciences at …………………………… The doctoral thesis can be found at: - National Library of Vietnam; - Library of Graduate Academy of Social Sciences INTRODUCTION Rationale Social life always witnesses the diversity and abundance at anytime and there is no exception for emotion, feeling or sexual orientation In the past, we mostly talked about a society where families are combination of a man and a woman aiming to breeding only Whereas, same-sex relationship or desire other gender were seen as an oddity, even morbidity Actually, homosexual, bisexual, transgender or intersex have existed in society for a long time and been clearly depicted in this modern life In modern human rights theory, rights of lesbian, gay, biosexual, transgender and intersex (LGBTI) people are more and more interested like rights of people living with HIV/AIDS or migrant workers LGBTI people are much related to sex, gender, gender identity and sexual orientation Their rights become controversial issues in many countries in law development and enforcement process However, in reality, the trend of supporting their rights is increasing in the world In Vietnam, LGBTI people have been paid more and more attention by scientists in recent years In term of jurisprudence, rights and law on rights of LGBTI people are also maintained both in theoretical and practical aspects The Consitution of the Socialist Republic of Vietnam issued in 2013 has required the completion of legal system on human rights generally and LGBTI’s rights particularly Besides, Vietnam is executing or making and completing several legal documents related to LGBTI people’s rights namely: The Civil Code in 2015, the Penal Code in 2015 (amended and supplemented in 2017), Law on Marriage and family in 2014, Transgender law, Law on Labor… From above situation, research on human rights of LGBTI people will contribute to perfecting legal provisions to ensure human rights, enhance social values of law in Vietnam and be fit with international trends Therefore, the author chooses the topic “Rights of homosexual, bisexual, transgender and intersex people under Vietnamese current laws” to study as a doctoral thesis in law with the desire of contributing to decrypting related matters comprehensively and systematically Purposes and missions of the thesis The thesis’s purposes are to provide exact, comprehensive and suitable arguments, then perfect Vietnamese legal system on rights of LGBTI people in the next time The thesis performs several missions including: - Studying theoretical issues on rights of LGBTI people; theories on rights and laws on rights of LGBTI people; factors effecting law development and enforcement on their rights; development trends of international laws, legal provisions of several nations all over the world on rights of these subjects - Studying legal reality on rights of LGBTI people in Vietnam (current situation, legal provisions on rights of these subjects and some matters raised in reality when executing laws) - Based on results of theoretical and practical studies, the thesis proposes several opinions and solutions to complete Vietnamese law on rights of LGBTI people as well as contribute to promoting law enforcement on rights of these subjects in the near future Objects and scope of the thesis The thesis objects are perceptions, realities and legal provisions on rights of LGBTI people in Vietnam The thesis studies on rights of LGBTI people under Vietnamese legal system and focuses on specific rights, limited rights, unrecognized rights or recognized rights but encountered many problems in reality There is comparison to international law and laws of several nations in the world on rights of LGBTI people Research methodologies In order to resolve given tasks, the thesis uses dialectical and historical materialism methods of Marxism-Leninism, Ho Chi Minh Thought; theoretical views and guidelines of the Communist Party of Vietnam and the State’s law The thesis also applies some research methods such as: analytical, synthesis, systematic, legal comparative methods; data statistic and analysis method, analyzing practical situation method, historical method New scientific contributions of the thesis - In general, the thesis is a comprehensive research on perception, reality and legal provisions on rights of LGBTI people in Vietnam - In particular, the thesis approaches and studies the matters interdisciplinarily and multidisciplinarily Not only approaches to legal perspective, research on LGBTI people and legal provisions on rights of their subjects but also combines sociology, psychology, anthropology, philosophy… By interdisciplinary and multidisciplinary methods allow the author has a systematic and comprehensive look on studied matters - The thesis builds, supplements and deepens theoretical system on rights and legal provisions on rights of LGBTI people; theories on factors affecting law development and enforcement on LGBTI people’s rights; as well as evaluates development trends of international laws, legal provisions of several nations all over the world on rights of these subjects - The thesis assesses current situations of LGBTI people in Vietnam; analyses and assesses legal situations and enforcement on rights of LGBTI people over the past few years Thereby, drawbacks, mistakes and reasons of these situations are shown - Based on theoretical and practical background, the thesis proposes some viewpoints and solutions with aiming to perfect legal provisions and legal enforcement on rights of LGBTI people comprehensively, synchronously and appropriately with Vietnamese conditions Scientific and practical meanings of the thesis - Reseach results will contribute to develop theoretical backgrounds to complete Vietnamese law on rights of LGBTI people - The thesis will also contribute to overcoming limitations and inadequacies in legal provisions on rights of LGBTI people currently by suggesting solutions to perfect legal provisions and enforcement based on human rights recognization, respect, protection and assurance Given solutions may support for law development and enforcement agencies on rights of LGBTI people - The thesis can be used as a worthy and necessary reference in the activities of the legislative, training majoring in laws and human rights, professional training and laws education Structure of the thesis In addition to the introduction, conclusion, references and appendices, the thesis consists of chapters Chapter OVERVIEW ABOUT RESEARCH RELATED TO THE THESIS 1.1 Overview 1.1.1 Domestic studies 1.1.2 Foreign studies 1.2 Assessment studies related to the thesis There are lots of studies related to the thesis which approach researched matters from different perspectives and interdisciplinarily That these studies were published on books, specialized journals, research, doctoral thesis and dissertation accounted for a larger amount in comparison with social organizations’ works, especially in recent years The author also published several related works Results of these works which provide basic theoretical knowledge on LGBTI people, their rights and legal provisions on rights of LGBTI people are precious references for researching this thesis However, up to now, there is no systematic and comprehensive research on rights of LGBTI people according to Vietnamese law The studies just concentrate on homosexual, transgender or bisexual (LGBT) in general, and research on rights of intersex people seems to be sporadic Based on research situations, some matters have been resolved and received on the thesis at different level as following: Theoretical perspective: basic matters on LGBTI people, natural rights, rights of LGBTI people; overview on international law and legal provisions of several nations all over the world on rights of LGBTI people Practical perspective: current situations on LGBTI people in Vietnam; some limitations and inadequacies in legal provisions on rights of LGBTI people (rights to together living of same-sex couples, transgender or gender-determination rights…) Suggestively perpective: some solutions on together living of same-sex couples, perfect legal provisions on transgender, gender-determination and rights on LGBTI people in other fields (criminal justice, gender equality…) as well It can be seen that foreign studies have provided a large amount of theoretical and practical knowledge on rights of LGBTI people in the world whereas there is a limitation in practical research in Vietnam For domestic studies, some matters related to this thesis have been not totally resolved or given yet: Theoretically, research on definitions of LGBTI people have not explained clearly based on theoretical background of sexual orientation and gender identity and have not deeply studied theories on rights and legal provisions on rights of LGBTI people yet Research on international law and legal regulations of several nations all over the world on rights of LGBTI people have been sporadic, and lacked of overview about development in each stage as well as concluded popular models They have also witnessed imcomplete analysis and assessment of factors effecting law development and enforcement on rights of LGBTI people The others have still remained shortcomings both in theories and perceptions about LGBTI people Practically, research have not fully studied about situations of LGBTI people in Vietnam currently (studies on LGBT group only) Some fields of law on rights of LGBTI people have not been deeply analysed (Intersex, law access, legal aid, children, giving birth by scientific methods, working, sports, military service…) Mechanism for protection of rights of LGBTI people in Vietnam has not been comprehensively evaluated At the same time, legal enforcement has just pointed out inadequacies of legal regulations but specific subjects (LGBTI people, State agencies, social organizations) Suggestively, learnt from other nations’ experience, some given solutions have not been suitable for Vietnamese conditions yet such as: recognizing same-sex marriage, recognizing non-surgery transgender people, children adoption Therefore, those recommendations have not been totally incisive… 1.3 Matters need to be studied further in the thesis First, study to raise the awareness of LGBTI people based on theoretical background of sexual orientation and gender identity; and argue fully, comprehensively on objective, natural existence of LGBTI people as well Second, study to shed light on theories on rights of LGBTI people and legal regulations on rights of LGBTI people (their nature, reasons why legislation has to recognize their rights, positions of their rights in legal system…) and factors effecting law development and enforcement on rights of LGBTI people Third, overall study development and main legal models on rights of LGBTI people all over the world Fourth, study fully and comprehensively on situations of LGBTI people in Vietnam currently and legal matters raised in recognization, respect, protection and assurance rights of LGBTI people Fifth, study and evaluate legal situations of rights of LGBTI people in Vietnam currently, especially focus on specific rights, unrecognized rights or recognized rights but encountered limitations; and mechanism to protect their rights This matter in the thesis is also directed to legal projects or drafts related to rights of LGBTI people which are in the process of developing and executing in Vietnam Sixth, study on suggestions and specific solutions with the purpose of perfecting legal provisions on rights of LGBTI people comprehensively, synchronously and appropriately with Vietnamese conditions 1.4 Research questions and scientific hypothesis By evaluating given studies, the thesis is conducted based on following theories and hypothesises: - Theories on sexual orientation and gender identity; - Hypothesis on natural rights and legal rights; - Theories on fairness The thesis also proposes five research questions which need to be resolved: Question 1: Which theories are used to explain rights of LGBTI people? Whether violating rights of LGBTI people is a violation of human rights in general or not? Question 2: Why we need to recognize rights of LGBTI people by using law? Question 3: Which factors have an effect on law development and enforcement on rights of LGBTI people? Question 4: Whether laws on rights of LGBTI people in Vietnam meet the social requirements or not? Question 5: Which solutions needed to perfect legal provisions and promote legal enforcement on rights of LGBTI people in Vietnam? From these research questions, the thesis provides scientific hypothesis as follow: “Rights of LGBTI people are one of new and complicated issues of law on modern human rights It is necessary to study their rights based on theories of sexual orientation, gender identity, natural rights theory… Rights of LGBTI people consist of various rights; at the same time, specific rights of LGBTI people are included Law is one of vital means aiming to protect and ensure rights of LGBTI people whereass there are differents aftors affecting law development and enforcement on rights of LGBTI people such as cuture, science or technology Despite of some progressive points, Vietnamese legal system on rights of LGBTI people has still not met the social needs yet As a consequence, comprehensive, synchronous and appropriate solutions to complete lagel provisions and promote legal enforcement on rights of LGBTI people in Vietnam are needed” Chapter THEORETICAL MATTERS ON RIGHTS AND LEGAL PROVISIONS ON HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE’S RIGHTS 2.1 Theoretical matters on rights of LGBTI people 2.1.1 LGBTI people Both theoretical and practical research have shown that LGBTI are natural things of social development This matter is awared according to basic definitions of sexual orientation, gender identity and our natural physical features - Sexual orientation is one of four factors making sexuality which is an enduring pattern of emotional, romantic, affectionate and sexual attraction to persons of any gender Homosexual and busexual are two of human sexual orientations; therefore, they are not genders Homosexual and bisexual people are male or female While the former is attracted by same sex ones, the latter is attracted to and wants to have relationships with both sexes - Gender identity is known as a person’s internal sense of his/her own gender (same or different from his/her biological sex at birth) Transgender people may realize that their assigned sex does not match gender identities They not need to conduct sex reassignment surgery to be called as transgender people After sex reassignment surgery, thay are transgenders - Intersex is a general term used for variety conditions in which an individual is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male Sex reassignment surgery is one of problems that intersex people have to face with They often respond LGBT people’s movements as their aims seem to be similar - While heterosexual people (who are attracted to people of the opposite sex) account for majority, LGBTI peope are minority group in this society LGBTI is not pathology and unable to infect from one person to another 2.1.2 Rights of LGBTI people - Rights of LGBTI people are human fundamental needs; - Right of LGBTI people is a system of various rights in which consists of new rights in comparison with human rights, for example: transgender right of transgender people, gender determination right of intersex people; - Rights of LGBTI people are both group rights and personal rights 2.2 Law on rights of LGBTI people - Reasons for the law to recognize and protect rights of LGBTI people: + Law is considered as a vital tool to actualize, protect and promote rights of LGBTI people It is essential to recognize rights of LGBTI people by law in the context of growing society; + LGBTI people have been suffered discrimination or abuse in different aspects so they need protection by legal provisions; + It is reasonable that legitimate interests of every citizen are protected A democracy and progressive law need to protect both rights of majorities and minorities; + If legal provisions not recognize rights of LGBTI people, arised conflicts will be not resolved in case LGBTI people require liberty and rights of LGBTI people are expressed via different legislative techniques (marriage of same-sex couples, giving birth by scientific methods, surrogacy, execution of criminal judgements…) indirect recognize or not recognize rights of these subjects In this part, the author focuses on analyzing and assessing legal provisions on rights of LGBTI people which have not been recognized or limitedly recognized These specific rights are directly related to liberty and happiness of LGBTI people as well as recognization their other rights 3.2.1 Group of general rights of LGBTI people This part assesses legal regulations on: - Equality and non-discrimination rights in political, civil, economic, cultural and social life; - Rights in marriage and family field; - Rights to access law and legal aid; - Rights in administrative field; - Rights in criminal justice 3.2.2 Group of specific rights of LGBTI people This part assesses legal regulations on: - Transgender right of transgender people; - Gender determination right of intersex people General assessment: * Advantages: - LGBTI people in Vietnam have not suffered strict regulations or discrimination like some other nations Vietnamese law has not regulated prohibition homosexuality/bisexuality, prison/death homosexual people - Some progressive and positive points are supplemented in constitutional and legislative activities on rights of LGBTI people: The Constitution in 2013, Law on Marriage and family in 2014, Civil Code in 2015, Penal Code 2015 (amended and supplemented in 2017), and Law on temporary detention and custody in 2015… * Disadvantages: - Rights of LGBTI people appeared lately in Vietnamese legal system (only gender determination right has been recognized since 2005) - In overall, legal system on rights of LGBTI people has not been comprehensive and covered all LGBTI people (equality, non- 11 discrimination, together living of same-sex couples, property, civil status, administrative procedures, criminal execution…) It has also lacked of feasibility and not met social requirements yet - Current legal provisions have not fully aligned with international common standards on rights of LGBTI people 3.3 Current situations of legal enforcement on rights of LGBTI people in Vietnam 3.3.1 From LGBTI people This part assesses LGBTI people perception on their rights as well as raised issues in legal enforcement on both their general rights and specific rights 3.3.2 From State agencies This part evaluates current situations on: law propaganda and education on rights of LGBTI people; necessary institutions related to protecting rights of LGBTI people; law development and enforcement on their rights 3.3.3 From people and social organizations This section assesses people's perceptions and views on issues related to LGBTI, the rights of LGBTI people and the participation of social organizations in protecting and promoting the rights of LGBTI people General assessment: * Advantages: - Awareness of LGBTI people, agencies, government officials and people on issues related to LGBTI people also has positive changes over the years - LGBTI people have been more involved in active dialogues between the Government and the public and in the process of developing policies and laws; - Some social organizations actively participate in the process of protecting and promoting the rights of LGBTI people * Disadvantages: - Overall, awareness of rights and rights protection of LGBTI people is still quite limited; - Law enforcement on some specific rights of LGBTI people reveals some limitations and difficulties; some legitimate needs have not been resolved by law; 12 - State authorities have not really promoted their roles of propaganda and dissemination of human rights education; - The relevant institutions not have enough facilities and capacity to protect and promote the rights of LGBTI people; - LGBTI law enforcement and enforcement activities have not really approached human rights; - Prejudice, stigma to LGBTI people still exist in people's awareness, especially related to the recognition of LGBTI's rights; - The participation of social organizations in the process of promoting and protecting the rights of LGBTI people also faces limitations and difficulties on foundation process, joining in formulation of laws and operating funds 3.4 Causes of the limitations and difficulties in law development and enforcement of LGBTI people's rights in Vietnam Firstly, influences of traditional notions (leading many people and officials to a “heterosexual society” prejudice) Secondly, the awareness of LGBTI in the construction and enforcement of laws about their rights is incomplete and not really based on human rights (for example, the concept of gender equality has been no longer suitable to practice ) Thirdly, beliefs and religions also profoundly impact on the concept of LGBTI people as well as on recognizing and enforcing laws on the rights of LGBTI people Vietnam Fourthly, causes from other factors (law development trends in regional countries, mass media, residences, age, education levels, economic status…) Chapter VIEWPOINTS AND SOLUTIONS TO IMPROVE THE LAW ON THE RIGHTS OF HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE IN VIETNAM 4.1 Viewpoints to improve the law on the rights of LGBTI people in Vietnam First, getting more access to new cultural values 13 Second, fully and comprehensively access to nature of LGBTI people’s rights Third, the improvement of the law on the rights of LGBTI people must focus on uniformity and unity of law and must follow a prosess Fourth, attention should be paid to solutions of raising the awareness and promoting law enforcement of LGBTI people’s rights 4.2 Sollutions to improve the awareness of LGBTI people and the law of LGBTI people’s rights (1) LGBTI people need to be more proactively contribute to change negative society’s perceptions themselves Any point of view or perception has an interaction from both sides According to the author of the thesis, LGBTI people themselves need to have more positive and proactive moves in building a good image among the social community, contributing to helping society understand themselves better Making society’s vision in which LGBTI is natural and objective is very important Since then, the notion of a heterosexual society and heterosexual monopoly will gradually give way to a sexual diversity society According to the survey results, mentioned in chapter of the thesis, LGBTI people who live publicly and connect more to the community, will also have positive impacts on society's views about LGBTI issues Many cases show that people realize LGBTI people are naturally present in normal life Besides, the attitude of positive, proactive living which makes others understand clearly and correctly about LGBTI people will be an effective way for them to integrate better in the community and society (2) The Ministry of Education and Training needs to continue to expand the content of sex education programs (especially for high school students and university students) Accordingly, it is necessary to inform and educate on issues of sexual orientation and gender identity to contribute to the orientation of proper awareness for pupils and students in particular and for young people in general (3) The Ministry of Health needs to disseminate scientific knowledge about sexual orientation, gender identity, homosexual and transgender to agencies, organizations, people, families, society and especially medical facilities, treatment facilities and officials 14 (4) State agencies need to raise solutions to propagate and disseminate the law on human rights in general and on LGBTI people’s rights in particular which are should be more effective and practical In the process of developing laws related to LGBTI people’s rights, it is necessary to focus on communication about policy so that people and society can understand clearly and correctly about the new policies and regulations Some officials are directly related to the LGBTI people’s rights (law enforcement officers, civil servants, police officers, commune officials, judicial officers ) also need to be supplemented right knowledge about LGBTI people In addition, there should be a number of programs, which propagate and disseminate legal knowledge, specifically for vulnerable groups (including LGBTI people) to help them understand their rights, understand obligations and opportunities to protect their rights (5) Social organizations, especially which are operating in the field of promoting and protecting LGBTI people’s rights, should continuosly be created more favorable conditions in theirs organization and operation by the government These organizations should accompany more with state agencies in activities of legal aid, propaganda, dissemination of knowledge and laws because sometimes those organizations are closer and more cohesive with LGBTI people than state agencies (6) The mass media and newspapers need to further promote the role of raising awareness about LGBTI issues 4.3 Sollutions to develop the law of LGBTI people’s rights in Vietnam 4.3.1 Completing legal provisions on common rights of LGBTI people Firstly, completing legal provisions on equal rights, the right to freedom from discrimination in political, civil, economic, cultural and social life (1) Expanding the concept of gender equality: equality between sexual orientation and gender identity; (2) The promulgation of a separate law on anti-discrimination based on sexual orientation and gender identity is not really necessary Currently, it is possible to integrate this issue into specialized laws and promote law enforcement In the distant future, it is possible to develop a common law on anti-discrimination to identify general and basic principles for all areas of social life 15 Secondly, completing legal provisions on the rights of marriage and family (1) Base on some reasons (legitimate needs of LGBTI people, the notion of family has changed, negative impacts resulting from denying same-sex cohabiting couples), it is necessary to accept the relationship of same-sex cohabiting couples by a legal form According to the author of the thesis, it is necessary to recognize a legal form of same-sex cohabitation (civil union) This form has been adopted by some countries over the world as a transition step to conveniently considerate and further evaluates samesex relationships before the recognition of equal marriage for the same-sex couples in the future The registed cohabitation relationships also not affect the traditional marriage regime; not cause great disturbances in Vietnamese social life The registed cohabitations (civil union) must be interpreted to apply to same sex couples (two homosexuals, two bisexuals or two transgenders who have surgeries and signed to live with a same-sex partner after surgery…) Couples, who exercise registed cohabitation rights, will have limited rights compared to full marriage rights ones (eg: adoption rights ); (2) Allowing registered lesbian couples to still have the birthright by scientific methods because they cannot have children by themselves (3) Consideration should be given to expanding the regulation of surrogacy pregnancy in the direction: A heterosexual male or a gay can take his sperm with an ovule (in the ovary banks or asking for an ovule through a hospital by a donor) for an in vitro fertilization; then fertilized oocytes will be transplanted into the uterus of a surrogacy woman A heterosexual female, a lesbian, who is an infertility woman, can take her ovule in combination with donated sperm then get another pregnant woman; (4) Follow the process, it is possible to consider adoption right of the same-sex couple after acknowledging the equal rights on marriage for everyone; (5) Some other recommendations regarding to the property relations, the representation rights and the guardianship rights of registed cohabitation couples 16 Thirdly, completing legal provisions on the rights of access law and legal aid (1) The effectiveness and the percentage of people who have access to the law should also be one of the criterias for assessing the legal access standards of people at levels (2) It is necessary to promote the legal aid activities of social organizations which should be friendly, easy to access, should diversify forms and ways of providing legal aid services such as mobile assistance, telephone lines, forums, collaborators' activities Besides, it is necessary to pay attention to the formulation of standards in how to approach objects and issues of legal aid It is necessary to combine the implementation of legal aid and the promotion of policy formulation and laws amendment, as well as the dissemination and propagation policies and laws to the community, especially those who are capable of protecting themselves Besides, it is necessary to pay attention to the formulation of standards in approaching to objects and issues of legal aid It is necessary to combine the implementation of legal aid and the promotion of policíe, laws formulation and amendment as well as policies, laws dissemination and propagation to the community, especially for people who are capable to protect themselves Fourthly, perfecting the legal administrative provisions on LGBTI people’s rights (1) Provisions on body examination according to administrative procedures (Law on handling administrative violations in 2012, Law On foreigners’ entry into, exit from, transit through and residence in Vietnam 2014 and relevant legal documents) need need to be revised and supplemented to fully cover the LGBTI group For example, in case of performing body examination to whom had sex-change surgery from male to female although his ID remains a male, the person who performs the examination must be a female and vice versa (2) On the issue of whether a trangender from female to male with law permission is an objector to perform military service This is determined by legislators because in the world, there is not every country has provisions of their right/duty to perform military service after legal transgenders process 17 (3) Law on handling administrative violations needs to be abolished point a, Clause 2, Article 35 of Decree No 176/2013/ND-CP dated on November 14, 2013 of the Government stipulating penalties for administrative violations in the health sector (amended and supplemented by Decree No 65/2015/ND-CP dated on August 7, 2015 of the Government) that related a fine from 30,000,000 VND and 40,000,000 VND for transgender acts for complete sex people Because The Civil Code 2015 recorded transgender issues of transgender people Fifthly, perfecting the legal criminal provisions on LGBTI people’s rights (1) Need specific guidance on "other sex acts" in Criminal Code 2015 (amended and supplemented in 2017); (2) According to the author of the thesis, in case of performing body examination to whom had sex-change surgery in Criminal Procedure, the government authorities need specific guidance such as: the performer and witnesses need to be the same sex as their gender after transgender surgeries; (3) Law on Execution of Criminal judgments 2010 and other related documents need to be supplemented provisions about separate cells for homosexual and transgender people in necessary cases Those provisions will be also consistent with the provisions on custody and temporary detention for homosexual and transgender people in the Law on Enforcement of Custody and Temporary Detention 2015 4.3.2 Completing legal regulations on specific rights of LGBTI people First, completing legal provisions on transgender rights of transgender people The National Assembly and the Government need to speed up the process of drafting the Transgender law so that transgender rights are no longer "suspended" The Transgender law needs to address some of the following important issues: (1) The scale of recognition of transgender people; (2) Conditions of age of transgender people; (3) Conditions of marital status of people who want to be transgenders; (4) Some issues during the transgender process; (5) Number of transgender times; (6) Health care facilities for transgender interventions; 18 (7) Recognition former transgender people; (8) The cost of transgender medical intervention; (9) Transgender marriage rights after transgender process; (10) Impacts on other legal documents (civil status, citizenship, people's identity card, passport ) In the future, technically, the name of Article 37 in the Civil Code 2015 needs to be revised to "Transgender Rights" to affirm clearly that are transgender rights and ensure consistency in moral rights system Second, perfecting the legal regulations on the right to determine the gender of intersex people It is necessary to issue legal documents to replace Decree No.88/2008/ND-CP and Circular No.29/2010/TT-BYT which are regarding gender determination issues In particular, attention should be paid to the following issues: (1) Using the term "gender determination" instead of "redefining gender" to ensure a proper understanding the nature of intersex people; (2) Do not use the term "bisexual" because it is easy to mislead the characteristics of intersex people; (3) Full recognition of the status and signs of intersex people (mentioned in chapter 2); (4) Considering not allow gender determination surgeries for under 16 or under 18 year old people Thus, the proposal to have gender determination must really come from intersex people If they not see any difficulties or any discomfort with their body, no one can force them to have sex determination surgeries Let they decide on his or her own gender and body In fact, many cases of intersex people who have been sent to surgeries for gender determination by their parents, but after growing up, they are not satisfied with the determined gender, so they have to have surgeries again The author's proposal is also quite similar to the recommendations of many international intersex organizations Accordingly, the surgery for intersex people should only be done when they have grown up and they have been provided all relevant information to make a decision for themselves The authorities should issue decisions to recognize/appoint medical and treatment facilities which have enough standards for medical intervention 19 to determine gender In addition, on sex determination, surgery should be taken into which are able to perform reproductive function; if not, choose the gender that will be easy to reproduce the genitals most similar to or close to natural This issue should be paid attention to during the counseling process for intersex people who want to have gender determination 4.4 Solutions to promote law enforcement of LGBTI people’s rights in Vietnam Firstly, in the process of developing and enforcing laws, State agencies and officials need to have full access methods to rights based approach The development and enforcement of laws should be based on the following basic principles: (1) Considering the supports for implementation and enjoyment of human rights are fundamental goals in the construction and enforcement of laws; (2) Taking international principles and standards of human rights as a guide in the construction and enforcement of laws; (3) Clarifying the subjects of the rights, the subjects has the obligations and the rights, the obligations of the subjects who have rights and responsibilities in the process of construction and enforcement of laws If the staffs, who are building, appraising, reviewing legal documents, have comprehensive access to rights based approach, it will be better to ensure the requirements of human rights protection in general and LGBTI people’s rights in particular Secondly, there should be solutions to further strengthen the participation of people in the legislative process, further develop and improve the responsibilities of authorities that are in charge of drafting in the reception and explanation of people and organization comments (1) Expanding opportunities to access to information for people; (2) Proposing the contents of comments to be clarified and explained clearly about the purpose, viewpoint, content aspects, impacts of policies and draft laws; (3) Prescribing the accountabilities of the authorities that are in charge of drafting about opinions of the people; creating a mechanism for listening, receiving and responding to ideas regularly and responsibly; (4) There must be a mechanism to supervise activities in collecting opinions and explaining opinions of the drafting agencies 20 Thirdly, perfecting the legal basis for the operation of social organizations and studying to improve institutions on protection LGBTI people’s rights (1) It is necessary to continue studying and developing the Law on Association to create a unified legal basis for the operation of social organizations (including organizations promoting and protecting the rights of LGBTI people) There needs to be a fuller view towards social organization in particular and people in general must really be the focus of social development, the development partner of the State; (2) With the institution of the Court, it is necessary to continue implementing a number of solutions to promote the role of protecting human rights in general and LGBTI rights people in particular; (3) Continue to research and develop national human rights institutions Fourthly, it is necessary to continue researching and replicating models of community support to protect LGBTI people’s rights Those models can contribute to protect LGBTI people’s rights in cases of domestic violence (especially for LGBTI children and women) 21 CONCLUSION As one of the first, direct and complete studies which is considering the perceptions, realities and laws on the rights of homosexual, bisexual, transgender and intersex people is the object of research, the thesis has contributed and enriched the knowledge on this topic as well as raised some conclusions as follows: Homosexual, bisexual, transgender, and intersex are the sexual orientations, gender identities and natural physical characteristics of humans (accounting for a small number) in addition to heterosexual orientations (common) Homosexual, bisexual, transgender or intersex are not pathology and cannot infect from one person to another Homosexuals, bisexuals, transgender and intersex people are weak subjects in society, so they are facing more challenges than heterosexuals The modern world has recognized new concepts about gender, gender equality, marriage and family Accordingly, the concept of gender, gender equality are not only limited in the relationships between men and women but also extended in equal relationships between sexual orientations and gender identity (for example, between gay men and heterosexual men) Marriage and family are now not merely a combination of heterosexual couples but may be families of same-sex people Reproductive function is the main function of marriage but cannot be a function that determines a marriage form and family relationship New types of families have been recognized by the United Nations that encouraged countries to protect Homosexual, bisexual, transgender and intersex issues show sexual diversity, gender identity diversity in modern social life When society develops to a new level of awareness, the distinction between homosexual, bisexual, transgender or intersex is no longer important For example, that time, everyone has rights to have equal marriage, adoption, division of property equally; it is also not necessary to distinguish between homosexual and bisexual people because people have rights to live in their own sexual orientation Moreover, diversity is always the foundation of creativity because people have different beliefs, different educational backgrounds, different life experiences, different strengths that will complete each others in the development process 22 The requirements of protecting the equal rights of homosexual, bisexual, transgender and intersex people is a reality in Vietnam recently However, recognizing new rights trends, new perspectives on their rights still faces many barriers Although the society appears more and more requirements to ensure the rights of homosexual, bisexual, transgender and intersex people, it does not mean that all rights must be immediately recognized that can lead to "shocks" for society, especially in traditional society as Vietnam In general, there should be a longer-term process for reviewing and recognizing the rights of homosexual, bisexual, transgender and intersex people in Vietnam It can be seen that, along with the development of society, Vietnam has innovated in legislative thinking about the rights of homosexual, bisexual, transgender and intersex people (futher more is the problem of sexual orientation, gender identity) This is really Vietnam's efforts in protecting human rights The study is shown that basically, Vietnamese law has recognized most of the rights of homosexual, bisexual, transgender and intersex people However, there is a certain distance between awareness of human rights and institutionalized human rights in law It is also a relatively common phenomenon in the world Therefore, some of those rights have not been recognized or completed because Vietnam is in the process of developing and improving related policies and laws (the marriage right of the same sex couples; adoption rights of same sex couples; rights related to pregnancy of same sex, bisexual, transgender, and intersex couples; issues related to domestic violence prevention) This feature of Vietnam is also quite similar to other countries in the world The thesis also affirms that first of all, it is necessary to ensure urgent issues for homosexual, bisexual, transgender and intersex people such as: anti-stigma, discrimination and domestic violence; solving number of difficulties of transgender people; legal aid; accessing to law About issues related to the cohabitaion of same sex couples, children need a certain process Law enforcement on the rights of homosexual, bisexual, transgender and intersex people plays an important role in ensuring the realization of this group's legal rights Therefore, there should be specific, suitable solutions for each subject In particular, the author emphasizes the 23 requirement to access fully and comprehensively the rights based approach during law development and enforcement activities Only truly based on people, based on human rights, human rights can be recognized, respected, protected and secured in practice In Vietnam, in the near future, issues related to the cohabitation of homosexual, bisexual, transgender and intersex people, issues of antistigma and anti-discrimitation… will be continuosly discussed and reviewed Results of the thesis will contribute to opening more legal discussions on this topic in the future The value of equality and freedom is the main subject throughout the thesis The author thinks that it is time for Vietnam society to have a more complete and correct view for citizens with different sexual orientations and gender identities In fact, when we are learning and evaluating the rights of homosexual, bisexual, transgender and intersex people, it is not synonymous with cheering for a new, misleading movement; it should be understood that is the way to change their voices, to contribute human society Creating an equal society among citizens is a humanistic value of the law The most civilized society is a society with a law for human and bases on human Beside great efforts, the thesis results also have certain limitations In subsequent studies related to the topic, some issues can be interpreted more comprehensively as follows: - Overall studying in sexual orientation, gender identity and interactions with the legal system; - Studying in the mechanism of recognizing, respecting, protecting and ensuring the rights of homosexual, bisexual, transgender and intersex people in Vietnam; - Studying the interactions between social factors and developing and enforcing laws activities on the rights of homosexual, bisexual, transgender and intersex people 24 LIST OF PUBLISHED WORKS RELATED TO THE THESIS Truong Hong Quang (2016), “About legal access rights and legal aid rights of homosexual, bisexual and transgender people”, Journal of Social Sciences Human Resources (Graduate Academy of Social Sciences), (2), p 18-24; Truong Hong Quang (2016), “Need to change the concept of gender equality”, Journal of Law and Development (Vietnam Lawyers Association), (3 + 4), p 22-25; Truong Hong Quang (2016), “Intersex people in Vietnamese social life and legislation”, Journal of Social Sciences Human Resources (Graduate Academy of Social Sciences), (6), p 50-56; Truong Hong Quang (2016), “Transgender and related issues according to The Civil Code 2015”, Journal of Law and Development (Vietnam Lawyers Association), (11 + 12), p 51-55; Truong Hong Quang (2016), “International law on the rights of homosexual, bisexual and transgender people", Journal of Legislative Studies (Institute of Legislative Studies), period 1, (12), p 15-23; Truong Hong Quang (2017), “Rights based approach on the law development and enforcement on the rights of homosexual, bisexual and transgender people”, Journal of Legislative Studies (Institute of Legislative Studies), period 2, (7), p 23-34; Truong Hong Quang (2017), “Some raised issues in the practice of law enforcement on the rights of homosexual, bisexual, transgender and intersex people in Vietnam", State and Law Journal (State and Law Institute), (11), p 65-76, 84; Truong Hong Quang (2017), “Laws with the issues of sexual orientation and gender identity”, Journal of the Legal Profession (Judicial Academy), (6), December, p 46-51, 58; Truong Hong Quang (2018), “General concepts of homosexual, bisexual, transgender, intersex and requirements for the legal system”, Journal of Law and Development (Vietnam Lawyers Association), (3 + 4), p 74-80 ... LGBTI people in Vietnam are needed” Chapter THEORETICAL MATTERS ON RIGHTS AND LEGAL PROVISIONS ON HOMOSEXUAL, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE’S RIGHTS 2.1 Theoretical matters on rights... VIETNAM CURRENTLY 3.1 Current situations of LGBTI people in Vietnam By using actual surveys and collected information, it can be seen that LGBTI people exist positively in Vietnam despite of little... comprehensive look on studied matters - The thesis builds, supplements and deepens theoretical system on rights and legal provisions on rights of LGBTI people; theories on factors affecting law
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