The legislature of Vietnam recently adopted a new Civil Code which will come into effect in January 2017. Among the changes is the right of Vietnamese persons to have sex reassignment surgery and subsequently be able to officially change their gender and name on all legal documents.
Currently, doctors in Vietnam are banned from performing Sex Reassignment Surgery on individuals who want to change their gender. Individuals who have the surgery done outside the country are not permitted to change their legal identity. This will change under the new Civil Code, which applies to a broad range of laws including those related to family, marriage, inheritance, housing -- and hence to the human rights of individuals and communities.
Huy Luong, from the Hanoi-based Institute of Studies for Society, Economics and Environment (iSEE) and activist for the rights of lesbian, gay, bisexual and transgender (LGBT) people, explains that it is still early days and groups must keep working with the government to ensure greater clarity in the law's application.
What is not clear is if the new provisions on gender reassignment will benefit gender variant persons who do not want surgery, transgender people who opt only for hormones or those who choose partial surgery. What is needed is latitude in the law's implementation so that all transgender people can benefit from legal recognition and not be forced to undergo surgery to be accorded the rights of their chosen gender.
Vietnam, unlike other Southeast Asian countries like Brunei, Malaysia, Myanmar and Singapore has no anti-sodomy law or other laws that criminalize consensual same-sex sexual conduct and non-conforming gender. It has never classified homosexuality as a disorder. In addition, Vietnam's revised Family and Marriage Law that went into effect in January 2015 lifted the ban and abolished fines on same sex weddings that had been in place since 2000.
However, although Vietnam does not penalize same sex weddings and same sex intimacy, it does not legally recognize same sex partnerships. This means same sex couples do not enjoy the same rights as married or cohabiting heterosexual couples. This affects gay and lesbian couples where partners are transgender regardless of the transgender partner's legal status.
Changes in legal status for transgender people under the new Civil Code need to be grounded in family acceptance of LGBT persons. In 2010 when I was in Hanoi, a Vietnamese lesbian told me, "The main worry for LGBT communities in Vietnam is family not religion, family not society."
Le Quang Binh, chair of iSEE, agreed.
Our fear is social pressure, not state violence, not hate crimes from the public but family violence and domestic violence. Parents fear letting their kids mix with LGBT people because they think it will influence them to become gay. People are afraid of homosexuality as a disease and that it's contagious.
Social shame and family stigma have been taken up by non-governmental organizations such as Parents and Families of Lesbians and Gays (PFLAG) and Center for Studies and Applied Science in Gender, Family, Women and Adolescents (CSAGA). For instance, CSAGA operated a telephone hotline for lesbians and families. Worried parents would call, saying, "My daughter loves a girl and I want to lock her up and separate them," "My daughter behaves like a boy because she's been exposed to wrong ideas and education, can a psychiatrist or doctor change her?"
In 2014, the Vietnam government affirmed at the United Nations Human Rights Council in Geneva that LGBT people deserve to participate in social life without discrimination. Such an affirmation must predicate several important legal issues:
-- The need for a gender recognition law that honors bodily autonomy and does not come at the cost of a person's right to choose whether or not to have surgery and what kind of surgery;
--The need for changes to the 2008 Law on Domestic Violence Prevention and Control so that families are prohibited from inflicting violence, including forced marriage on their LGBT family members;
--The need for changes in Labor Code provisions to protect LGBT persons from and provide remedies for workplace and employment discrimination;
-- The need for a national anti-discrimination law with provisions for LGBT protections.
Changes in Vietnam's Civil Code are an important step towards granting legal recognition for one of Vietnam's marginalized communities but it is imperative that these changes ensure full dignity to all persons who are stigmatized, excluded or abused because their gender identity, gender expression or sexual orientation do not conform to family and public expectations.
For more about LGBTI rights and restrictions in Southeast Asia go to OutRight Action International.