It is time for Viet Nam to walk the talk on trans rights

On paper, Viet Nam has taken an important step towards guaranteeing the rights of transgender people to have their gender identity recognized. Now it is time to promulgate the legal framework that will actually implement and enforce the relevant Civil Code article, which is still under development. 

Viet Nam’s move to enshrine the rights of transgender people to be recognized under the 2015 Civil Code marked a significant step forwards. But the legislation to implement the relevant provisions and secure those rights in practice are still pending. The draft law currently under way must take into account the experienced reality of the estimated 290,000-480,000 people who identify as transgender in the country.[1]

Our society poses many obstacles to transgender people living freely according to their gender identity. Their outward appearance may not correspond with their gender marker, meaning the assignation in official documents as female or male. So any time a transgender man or woman applies for a job, wants to get their driver’s licence, or has to go through any other simple administrative procedure, they face a barrier. This, in turn, blocks their effective participation in society on an equal basis. For instance, one in three transgender women in Viet Nam has been denied rental accommodation or evicted. One transgender man said that he would like to finally get legally married to his long-term girlfriend, but cannot because his gender marker on his ID still says female. These cases deny a person’s self-determined gender identity, by imposing restrictions that do not correspond with their gender identity or their lived reality within the community and society.

The stigma and discrimination can be crippling. Almost 87 percent of transgender men and 75 percent of transgender women have had to change their physical appearance in ways that do not align with their identity. The rates of depression and suicidal thoughts among the transgender community are much higher than the national averages. Nearly 40 percent of transgender people in Viet Nam reported having suicidal thoughts, of which nearly half attempted suicide. The first attempted suicide of transgender people in this group, was around 15 years old.

With the promulgation of Article 37 of the 2015 Civil Code, the Government of Viet Nam has made a commitment to develop a legal framework that regulates how to change one’s legal gender marker. [2]  Work is under way on the first draft of such a framework, shining a light on the challenges transgender people face and seeking a solution to the legal limbo in which they currently live. Transgender people in Viet Nam are integral parts of families and communities, like any other family or community member, and yet they are prevented from participating in society in the same way and on equal footing. The lack of legal recognition of their gender identity obstructs their effective participation in Viet Nam’s society and labour force, and their access to health care.

The goal for the almost half a million people in Viet Nam who identify as transgender must be to ensure that their dignity and human rights are respected; that they are able to be productive citizens, contributing to their communities; and protected from violence, stigma and discrimination. As evidenced in many countries, there are concrete and practical benefits of inclusive laws and policies – including wider economic benefits. Countries that make efforts to fully include all people are more likely to foster human capital skills, to build more innovative economies and to recover from the shocks of present and future crises, including the COVID-19 pandemic.

The introduction of the law on legal gender affirmation also responds to a growing public awareness and acceptance of the importance to protect and respect the human rights of transgender people. Many countries and regions are reforming legislation on this issue, ensuring transgender people can apply for legal gender marker change. In the Asia-Pacific region, only a couple countries or provinces have recognized the importance for transgender people to have access to legal recognition of gender identity.[3] Viet Nam has an important opportunity to stand out as a regional leader on transgender rights.

In doing so, it will be important for Viet Nam to ensure that the decision on gender identification is first and foremost a personal one, underpinned by self-determination. Crucial in this debate is a recognition that a person can apply for a change in their gender marker without being forced to undergo invasive medical interventions. While some choose to undertake hormonal treatments and surgical interventions (which should be accessible and safe), these should not be a prerequisite to apply for legal gender marker change. The highest global authorities on (the interpretation of) human rights treaties ratified by Viet Nam, such as the High Commissioner on Human Rights and the Independent Expert on Sexual Orientation and Gender Identity, have emphasized that requiring medical interventions as a condition for legal gender recognition amounts to inhuman or degrading treatment and is prohibited by the United Nations Convention against Torture.

Moreover, the latest edition of the International Classification of Diseases endorsed by the World Health Assembly made it clear that being transgender alone does not constitute any illness or a disorder. It is also affirmed that people who are persistently having incongruence between an individual’s experienced gender and the gender assigned at birth, should be provided access to gender-affirming medical care.

Furthermore, the prohibition of discrimination dictates that a requirement on marital status does not have any place in an application procedure for legal gender marker change, as that would violate the principle of equality. This principle is enshrined in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all forms of Discrimination against Women, and other treaties Viet Nam has ratified. Some countries have paved the way on this issue already, ensuring broad access to legal gender affirmation, regardless of legalization of same-sex marriage. It is important not to break up well functioning families, living situations and personal bonds, and thus it is recommended that any marriage remains valid that was legal at the time it was conducted.

The time now is pertinent, as the transgender community in Viet Nam has been waiting for many years with great anticipation for the promised regulations that would fill significant legal gaps they face in their everyday lives. Transgender people have so much to contribute to our society and to their communities. The law should reflect their lived reality so they can live their lives to the fullest potential.

[1] In this article, the term ‘transgender’ is used to refer to any person who has a gender identity that is different from their sex assigned at birth. A transgender or trans person may identify as a man, woman, transman, transwoman, as a gender diverse or non-binary person or by other terms.

[2] Article 37 of the Civil Code:

“The sex reassignment shall comply with regulations of the law. Each transgender person who has undergone surgery has the right and obligation to apply for change of civil status and has the personal rights in conformity with the transformed gender as prescribed in this Code and relevant laws”

[3] Namely Pakistan and Chinese Taipei by legislation, and India by adjudication.