AUSTRALIA-WORLD BANK GROUP STRATEGIC PARTNERSHIP IN VIETNAM Gender Gender Inclusive Legislation in Vietnam How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Gender Inclusive Legislation in Vietnam How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Copyright © 2023 The International Bank for Reconstruction and Development / The World Bank Group 1818 H Street, NW, Washington, DC 20433 USA. All rights reserved. The findings, interpretations, and conclusions expressed in this report are entirely those of the authors and should not be attributed in any manner to the World Bank, or its affiliated organizations, or to members of its board of executive directors or the countries they represent. The World Bank does not guarantee the accuracy of the data included in this publication and accepts no responsibility whatsoever for any consequence of their use. Cover photo: Hanoi © ISEE, 2022 Reference: Buchhave, Helle; Trishna Rajyalaxmi Rana; Lucia Arnal Rodriguez (2023): “Gender Inclusive Legislation in Vietnam. How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities”. Washington, DC: The World Bank. Gender Inclusive Legislation in Vietnam ii How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Table of Contents Abbreviations  iv Acknowledgments  v 1. Inclusion of Sexual and Gender Minorities in the Vietnam Gender Equality Law  1 2. Data on Sexual and Gender Minorities and SOGIESC-Based Exclusion  3 3. The Economic Case for Inclusion of Sexual and Gender Minorities  5 4. International Policy Frameworks on SOGIESC Inclusion  7 5. National Policy Frameworks on Gender Equality in Vietnam and Intersection with SOGIESC Inclusion  9 6. Assessment of SOGIESC under Vietnam’s Legal Context  11 7. The Vietnam Gender Equality Law  14 8. Recommendations for Policy Reform  19 8.1 Define SOGIESC in the Law  19 8.1.1 Recommendation 1: Expand the Definition of Gender Equality  19 GEL update 1. Updating the GEL update to expand the definition of “gender equality” 20 8.1.2 Recommendation 2: Recognize Sexual and Gender Minorities  21 GEL update 2: Recognize Sexual and Gender Minorities 23 8.2 Provide Protection for Members of the LGBTI Community  23 8.2.1 Recommendation 3: Expand Basic Principles of Gender Equality  24 GEL update 3. Expand Basic Principles of Gender Equality 26 8.3 Promote, Implement, Mainstream, and Advance Gender Equality  27 8.3.1 Recommendation 4: Specify and Expand Gender Mainstreaming  30 GEL update 4: Promote, Implement, Mainstream, and Advance Gender Equality 30 9. Assessment of Implications for SOGIESC Inclusion in GEL for Other Key Laws  32 9.1 Gender Affirmation Law and Other Laws on Transgender Inclusion  32 9.2 Health Care Framework  33 9.3 Employment Framework  33 9.4 Educational Framework  33 Conclusion  35 Appendix A Glossary  36 References  38 Table of Contents iii Abbreviations GEL Gender Equality Law ILGA World International Lesbian, Gay, Bisexual, Trans and Intersex Association iSEE Institute for Studies of Society, Economy and Environment (Vietnam) ISMS Institute of Social and Medical Studies (Vietnam) LGBTI Lesbian, gay, bisexual, transgender, and intersex LGBTQ Lesbian, gay, bisexual, transgender, and queer MOLISA Ministry of Labour, War Invalids and Social Affairs NGOs Nongovernmental organizations OWAFD Office of Women’s Affairs and Family Development (Thailand) SDGs Sustainable Development Goals SOGI Sexual orientation and gender identity SOGIE Sexual orientation, gender identity, and gender expression SOGIESC Sexual orientation, gender identity and expression, and sex characteristics UCLA University of California, Los Angeles UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and Cultural Organization USAID US Agency for International Development UN Women United Nations Entity for Gender Equality and the Empowerment of Women Gender Inclusive Legislation in Vietnam iv How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Acknowledgments This policy note is a product of the Vietnam Women’s Economic Empowerment Project under the second Australia–World Bank Partnership Program (ABP) in Vietnam. It was written by Helle Buchhave, (Task Team Leader) Senior Social Development Specialist; Trishna Rajyalaxmi Rana and; Lucia Arnal Rodriguez, Consultants; all from The World Bank. The authors thank the Department of Gender Quality at Ministry of Labor, Invalides and Social Affairs for requesting the note. Giang Tam Nguyen, Senior Social Development Specialist; Dominik Koehler, Young Professional Officer; both from the Social Sustainability and Inclusion Global Practice of the World Bank and; Quyen Thuy Dinh, Program Assistant World Bank Vietnam, provided support to the production and consultation of the note. UNWomen is providing overall support to MOLISA for the gender assessment to the update of the Gender Equality Law. The team is grateful for the coordination with UN Women on this note and for comments and guidance provided by Ingo Wiederhofer, Practice Manager, Social Sustainability and Inclusion Global Practice, EAP; colleagues from the Vietnam Country Office Leadership team and; peer-reviewers including Clifton John Cortez, Global Advisor on SOGI, The World Bank and; Mia Urbano, Senior Gender Advisor, Australian Embassy Hanoi. A hybrid consultation workshop was held in Hanoi on September 26, 2022 to discuss a draft version of this policy note. The workshop was co-hosted with the Ministry of Labor, War Invalids and Social Affairs (MoLISA) and drew the participation of more than 40 managers and senior officials from government agencies, NGOs, development partners, and other key stakeholders engaged on data, policy and/or advocacy related to the LBGTI+ community in Vietnam. The team is extremely grateful for the active engagement, support, information shared, and guidance provided by the participants at the consultation meeting. Including from MoLISA (the Department of Gender Equality and the Institute for Labor Science and Social Affairs), the Ministry of Justice (the Department for Criminal and Administrative Laws, the Institute for Legislative Science, Table of Contents v the Journal on Legal Studies, and the National Registry for Guaranteed Transactions), the Ministry of Health (the Department for Legislation), the Office of the National Assembly, Vietnam’s Women’s Union (the Department for Policies and Legislation), NGOs (ISEE, ECUE, IT’S T Time, CSAGA, and SCDI), Hai Dang (Sea Light) Social Enterprise, Hung Quang Law Firm, and Development Partners (UNWomen, UNDP, US CDC and DFAT). Financial support by Australia is gratefully acknowledged. The Vietnam Women’s Economic Empowerment Project of the ABP carries out comprehensive data- and evidence-based analyses on emerging challenges to gender equality and provides technical support to policy makers and investment programs to address these challenges with the objective of increasing women’s economic empowerment. For more information on this policy note and the Gender Theme of the Vietnam Australia–Bank Partnership Program II (ABP), please contact Quyen Thuy Dinh, Team Assistant, World Bank Hanoi (qdinh@worldbank.org). For more information on The World Bank’s data and work on sexual orientation and gender identity please visit this website: https://www.worldbank.org/en/topic/sexual-orientation-and- gender-identity. Gender Inclusive Legislation in Vietnam vi How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Inclusion of Sexual and 1 Gender Minorities in the Vietnam Gender Equality Law In every country, including Vietnam, certain is understanding the legal and institutional groups confront barriers that prevent them challenges faced by excluded groups, from participating equally in their nation’s including sexual and gender minorities, political, economic, and social life. These which prevent them from fully participating groups are excluded through a number in, benefiting from, and contributing to the of practices, ranging from stereotyping, economy on an equal footing with others. to stigmatization, to superstitions (World Moreover, addressing the challenges facing Bank 2013). Because of deeply entrenched one group often benefits other groups as prejudice and harmful social norms sexual well. For example, a World Bank study and gender minorities continue to endure assessing laws and regulations that affect the discrimination, economic and social lives of lesbian, gay, bisexual, transgender, exclusion, and violence. and intersex (LGBTI) people indicates that countries with inclusive SOGIESC laws tend The Ministry of Labour, War Invalids and also to empower women (Cortez, Arzinos, Social Affairs (MOLISA) of Vietnam is and De La Medina Soto 2021).1 currently undertaking an update to the country’s Gender Equality Law (GEL) of To promote inclusion of marginalized 2006. Because the country’s current legal groups in Vietnam’s legal framework further, framework refers to gender equality in binary this note recommends that the update of the terms—male and female—without reference GEL of 2006 apply an intersectional lens to inclusion based on sexual orientation, to address the overlapping disadvantages gender identity and expression, and sex faced by sexual and gender minorities.2 characteristics (SOGIESC) (Australian The note draws on relevant international Aid et al. 2021), this update presents a experience and data, complemented by great opportunity and critical entry point available data for Vietnam, an assessment to broaden the scope and definition of of the current GEL, and a review of related gender equality to include SOGIESC. An legal frameworks. The approach is anchored important step toward an inclusive society in Vietnam’s constitution, which confirms 1 The economic well-being of sexual and gender minorities—particularly lesbian, bisexual, transgender, and intersex (LBTI) women— is closely related to the economic autonomy of all women, such as the right to own property, access to financial services, and freedom of movement. The absence of such rights and autonomy means that LBTI women and other gender-nonconforming people cannot access economic resources to live outside of a heterosexual family structure (see also Badgett and Sell 2018). 2 Vietnam, Law on Gender Equality, Law No. 73/2006/QH11 (2006), https://evaw-global-database.unwomen.org/-/media/files/un%20 women/vaw/full%20text/asia/law%20on%20gender%20equality%20-%202007/law%20on%20gender%20equality%20-%20 2007.pdf?vs=2102. Inclusion of Sexual and Gender Minorities in the Vietnam Gender Equality Law 1 the state’s policy to guarantee equal gender of international best practice as they relate rights and opportunities and strictly to the context in Vietnam. Finally, the note prohibits sex discrimination (Article 26.1).3 highlights broader implications of SOGIESC The approach also relies on the Law on inclusion in the revised GEL for other Vietnam Promulgations of Laws (2019), important legal frameworks in the country. which mandates that all new laws must be The note is based on a review of relevant informed by a gender assessment. publicly available documents, including The current GEL mandates that all new laws legal documents, reports, published must be informed by a gender assessment. papers, and news articles. It relies on In compliance with this mandate, later relevant analytical World Bank reports adopted into the Law on Promulgation of and strategies: the “World Bank Group Law of 2019, MOLISA is preparing a gender Gender Strategy 2016–23” (World Bank assessment for the update of the GEL. Group 2015); Equality of Opportunity for By providing evidence and international Sexual and Gender Minorities (Cortez, experience to inform this gender assessment, Arzinos, and De La Medina Soto 2021); “A this note aims to support MOLISA in its Set of Proposed Indicators for the LGBTI efforts to address the existing inequalities Inclusion Index” (Badgett and Sell 2018); faced by LGBTI people in Vietnam and and World Bank data-generation efforts on make the revised GEL more inclusive of the lives of LGBTI people in Thailand and sexual and gender minorities. the Western Balkans (World Bank Group 2018a, 2018b). For evidence on the economic The note begins by examining the available cost of exclusion of LGBTI people, the note data on LGBTI people globally, including the draws on extensive research work done by many challenges they face. After presenting the Williams Institute on Sexual Orientation the economic case for inclusion, the note and Gender Identity Law and Public Policy examines international policy frameworks at UCLA School of Law.4 For background on SOGIESC inclusion. It then analyzes the on gender inclusion in Vietnam and the legal framework for SOGIESC inclusion in legal and socioeconomic status of LGBTI Vietnam and goes on to assess the key gaps in people in the country, the note references the current GEL in addressing the inclusion reports and policy papers by United Nations of sexual and gender minorities. The note agencies and development aid agencies proposes concrete recommendations to such as Australian Aid; the Foreign, make the GEL more inclusive of LGBTI Commonwealth and Development Office people with recommendations for new or of the United Kingdom; the US Agency for updated text to specific articles in the current International Development (USAID); and GEL. Each recommendation is linked to nongovernmental organizations (NGOs) in data or evidence and to relevant examples the East Asia and Pacific region. 3 The Constitution of the Socialist Republic of Vietnam, 1992, as amended to 2013, https://constitutions.unwomen.org/en/countries/ asia/Vietnam. 4 For more on the research of the Williams Institute, see its “Publications” web page, https://williamsinstitute.law.ucla.edu/ publications/. Gender Inclusive Legislation in Vietnam 2 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Data on Sexual and Gender 2 Minorities and SOGIESC-Based Exclusion © Bui Thi / Pixabay Across the world, demographic data on of people over the age of 16 identified as sexual and gender minorities remain limited, gay, lesbian, or bisexual in the 2020 Annual and only a handful of countries have carried Population Survey.5 Similarly, in Australia, out population estimates (Wilson, Temple, an estimated 3 to 4 percent of people identify and Lyons 2021). In the United States of as sexual minorities (Wilson et al. 2020). America, 8 percent of respondents identified themselves as LGBTQ+ in the Census The data that are available on the lives of Bureau’s Household Pulse Survey of 2021, LGBTI people across the world paint a bleak which means that approximately 20 million picture of the social and economic exclusion, US adults could be lesbian, gay, bisexual, discrimination, and heightened risk of or transgender (Human Rights Campaign violence they face (World Bank Group 2018a, 2021). In the United Kingdom, 3.1 percent 2019a). The current World Bank Group 5 From United Kingdom, Office for National Statistics, “Sexual Orientation, UK: 2020,” https://www.ons.gov.uk/ peoplepopulationandcommunity/culturalidentity/sexuality/bulletins/sexualidentityuk/2020. Data on Sexual and Gender Minorities and SOGIESC-Based Exclusion 3 Gender Strategy identifies the following Thailand, lesbians reported the highest four priority gender gap areas: (the four level of discrimination when buying areas are listed in bold below). Existing data property (27 percent), followed by suggest that LGBTI people lag behind their transgender people (21 percent) heterosexual counterparts in all four areas: and gay men (14 percent). About 37 1. Improving human endowments6. In percent of all LGBTI respondents said the Philippines, according to the Young they were told they could not co-own Adult Fertility and Sexuality Survey, 16 or buy property with their partners. percent of young gay and bisexual men 4. Enhancing women’s voice and agency had contemplated suicide, whereas and engaging men and boys. About a 8 percent of young heterosexual third of LGBTI young people surveyed men had done so (Manalastas 2016). said they felt abused emotionally (35 Twenty-seven percent of young lesbian percent) or had experienced physical and bisexual women had contemplated abuse (27 percent) by their families. suicide compared to 18 percent of In a survey of 138 young people (ages young heterosexual women. 15–24) in Vietnam, fewer than half 2. Removing constraints for more and of respondents reported believing better jobs. In a World Bank survey that their families would accept them of 2,302 LGBTI people in Thailand, for their SOGIESC (43 percent), 77 percent of transgender respondents that they could speak openly about reported having a job application their SOGIESC to their families rejected because of their gender (42.8 percent), or that their families identity and 40 percent reported being would try to understand them (42 harassed (World Bank Group 2018a). percent)—see Save the Children and About 49 percent of gay men and 62 ISMS (2015). percent of lesbians reported rejection Discrimination against LGBTI people of their employment application is both an individual problem and an because of their sexual orientation or economic development challenge. As the gender identity. next section shows, promoting laws that are 3. Removing barriers to women’s inclusive of sexual and gender minorities ownership of and control over assets. makes economic sense. In the same World Bank survey in 6 For example, access to health, education, and social protection services. Gender Inclusive Legislation in Vietnam 4 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities 3 The Economic Case for Inclusion of Sexual and Gender Minorities Hanoi © ISEE, 2022 The cost of gender-based discrimination right thing to do, emerging data show that to the economy is well documented. For addressing discrimination against LGBTI example, a 2018 World Bank study of 141 people and promoting their inclusion can countries estimates that gender inequality lead to improved economic growth and in earnings could lead to losses in human productivity for countries (Badgett et al. capital wealth of US$160.2 trillion, or about 2014; Woetzel et al. 2018; World Bank 2012). US$23,620 per person globally if we assume A 2014 study by USAID and the Williams that women earn as much as men (Wodon Institute finds close links between improved and de la Brière 2018). The East Asia and rights for LGBTI people and positive Pacific region experiences the highest losses economic outcomes at both the individual in human capital wealth resulting from level and the broader macroeconomic level gender inequality. In 2014, the region’s loss (Badgett et al. 2014). Without improved in human capital per capita due to gender rights, the discrimination, exclusion, and inequality was estimated at US$23,253, violence experienced by sexual and gender which translates to a 16.6 percent loss in minorities in schools and workplaces total wealth. hinder their learning and lead to unemployment or underemployment. As In the same way that reducing gender a result, LGBTI people cannot maximize inequality makes economic sense and is the their skills and earning potential, leading The Economic Case for Inclusion of Sexual and Gender Minorities 5 to a loss of overall productivity (Badgett et more legal rights for LGBTI people also al. 2014). Such inability of LGBTI people to have higher per capita income7 and better participate in and contribute fully to their levels of well-being8. For example, the study economies in turn lowers economic output shows that having one additional right from at the national level. the Global Index on Legal Recognition of Homosexual Orientation (out of eight At the macroeconomic level, the USAID and rights included) is correlated with US$1,400 Williams Institute analysis shows a strong more in per capita gross domestic product positive correlation between per capita and a higher Human Development Index gross domestic product and legal rights for (HDI) value (HDI9 emphasizes that people LGBTI people in 39 countries, including and their capabilities should be the ultimate China, Indonesia, Malaysia, the Philippines, criteria for assessing the development of a and Thailand in the East Asia and Pacific country, not economic growth alone). region. In other words, countries that have Figure 1. Global Index on Legal Recognition of Homosexual Orientation and Human Development Index, 2011 Source: Badgett et al. 2014. 7 The GDP data source used in the USAID and Williams Institute is the Penn World Tables 8.0. 8 “Well-being” value is measured by the Human Development Index (HDI). 9 The Human Development Index measures three key dimensions of human development: a long and healthy life, being knowledgeable and having a decent standard of living. The health dimension is assessed by life expectancy at birth, the education dimension is measured by mean of years of schooling for adults aged 25 years and more and expected years of schooling for children of school entering age. The standard of living dimension is measured by gross national income per capita. Gender Inclusive Legislation in Vietnam 6 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities 4 International Policy Frameworks on SOGIESC Inclusion Ho Chi Minh City © Huy Luong, 2022 Over the past four decades, countries across access to education, economic resources, the world have made significant gains in freedom of association and right to advancing gender equality through legal organization, workers’ rights, and the right reforms aimed at reducing gaps between to participate in government (Timothy and men and women by promoting women’s Freeman 2000). access to endowments, economic markets, voice, and agency (see, for example, World The 2030 Agenda for Sustainable Bank 2022). International standards such as Development helped place gender equality the Convention on the Elimination of All and investments in women’s empowerment Forms of Discrimination against Women in as development priorities for many 1979 and the 1995 Beijing Declaration and countries.10 Closing gender gaps is integral Platform of Action provide the road map for to all 17 Sustainable Development Goals protecting and realizing equal opportunities (SDGs) and is explicitly addressed in the for women and girls, including improved stand-alone SDG 5.11 These policy reforms 10 United Nations, “Transforming Our World: The 2030 Agenda for Sustainable Development,” https://sdgs.un.org/2030agenda. 11 SDG 5 states, “Achieve gender equality and empower all women and girls.” For more on SDG 5, see https://sdgs.un.org/goals/goal5. International Policy Framework on SOGIESC Inclusion 7 apply largely to heterosexual and cisgender protection is considered the immediate next women and girls, and men and boys,12 and level of protection provided by the law (ILGA do not explicitly address exclusion and World 2020). That overview also found that discrimination on the grounds of SOGIESC a total of 81 states—including states from the (Dhar 2019; Gallagher 2019). Association of Southeast Asian Nations— have in place laws protecting individuals Currently, no global legal framework exists from discrimination in the workplace on to ensure LGBTI people’s equality of access the basis of sexual orientation. Furthermore, to education, employment, social protection, in the last five years, countries like Angola, and protection from violence. Nevertheless, Belize, Botswana, Bhutan, Gabon, India, under international law and customary law, Mozambique, Singapore and Trinidad states have the legal obligation to respect, and Tobago have moved to decriminalize protect, and fulfill the rights of sexual and homosexuality. gender minorities. Notwithstanding this progress, at least Progress to enshrine the rights of LGBTI 42 United Nations member states have people remains uneven across the world. legal barriers to freedom of expression An overview of global legislation found on sexual orientation and gender identity that, as of 2020, 11 United Nations member issues. LGBTI people thus continue to face states provide constitutional protections widespread exclusion, discrimination, and for sexual and gender minorities, and a violence in many countries. Moreover, further 57 states provide broad protections. LGBTI are not a homogenous group and Constitutional protection is considered intersectionality plays an important role in the highest level of protection and broad determining experience of LGBTI people. 12 Heterosexual refers people who are sexually attracted to people of the opposite sex. Cis or cisgender is used for people whose gender identity aligns with the sex assigned to them at birth, cis meaning “in alignment with” or “on the same side.” Gender Inclusive Legislation in Vietnam 8 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities National Policy Frameworks 5 on Gender Equality in Vietnam and Intersection with SOGIESC Inclusion Article 26 of Vietnam’s Constitution (1992) and opportunities for women (for example, Hanoi © ISEE, 2022 includes gender equality as a constitutional the United Nations Convention on the principle, guaranteeing equal rights for men Elimination of All Forms of Discrimination and women. Further, the 2006 GEL and against Women, the Beijing Platform for other key laws—such as the Social Insurance Action, the Millennium Development Law (2006), the Law on Residence (2006), Goals, and the SDGs). the Law on Domestic Violence Prevention (2007), the Nationality Act (2008), and the Vietnam’s 2006 GEL contributes to counter Labor Code (2019)—all help to advance discrimination against women and to gender equality among men and women, and guarantee equal opportunities for men and provide protection against discrimination women. However, in order to be inclusive and violence. In addition, Vietnam is a party of all genders—men, women, and gender to numerous international instruments that diverse people (that is, people who identify address, protect, and defend gender equality with a gender or genders outside of male or National Policy Frameworks on Gender Equality in Vietnam and Intersection with SOGIESC Inclusion 9 female)—the GEL requires an additional percent and of jointly titled residential land dimension, its current scope of protection from 15.7 percent to 55.6 percent (Buchhave that focuses exclusively on the gender binary et al. 2020). (men and women) leaves gender minorities unprotected. Currently, Vietnam does not have any formal population estimates of LGBTI people in the Robust legal provisions have helped country. The Ministry of Health estimates Vietnam make quantifiable improvements that the country has approximately 300,000 in women’s and girls’ access to education, transgender people (Fisk and Byrne 2020), health, economic empowerment, and whereas a 2019 survey by local NGOs civic participation and in ensuring (Institute for Studies of Society, Economics nondiscrimination (Stonewall International and Environment, and FTM Vietnam 2016; World Bank 2021). Female labor Organization) estimated nearly 500,000 force participation Vietnam as of 2021 transgender people in the country (Nguyen remains high compared to other countries 2019). Even in the absence of conclusive (69.6 percent) albeit lower than men’s (79.4 data, a more inclusive legal environment percent). However, their relatively high for sexual and gender minorities is likely participation rates, Vietnamese women to help Vietnam make headway on many still tend to concentrate in lower-paying economic and social indicators (UNDP and jobs and sectors (Cunningham, Alidadi, USAID 2014; see also the earlier section, and Buchhave 2018).13 Equality of access “The Economic Case for Inclusion of Sexual to assets such as land has improved with and Gender Minorities”). The next section the land law of 2004, which promotes joint provides an overview of the legal and land titling. Between 2004 and 2014, the social context affecting sexual and gender proportion of jointly titled cropland in minorities in Vietnam. Vietnam increased from 11.6 percent to 38.3 13 World Bank Gender Data Portal, Vietnam Country Profile, https://genderdata.worldbank.org/countries/Vietnam. Gender Inclusive Legislation in Vietnam 10 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities 6 Assessment of SOGIESC under Vietnam’s Legal Context © Zibik / Pixabay The current constitution of Vietnam a strictly binary concept—“characteristics, safeguards equal opportunities for all its positions and roles of man and woman in all citizens and deems them equal in the eyes of social relationships.” the law.14 The country has no specific laws, however, that protect people on the basis Over the last decade, Vietnam has made of their SOGIESC, which leaves room for strides in improving opportunities for interpretation based on morality and can LGBTI people, but they still face challenges consequently lead to unequal and unfair to achieving full equality and inclusion.16 treatment of citizens.15 The current GEL also After two widely known same-sex wedding lacks any nondiscrimination clauses based ceremonies in 1997 and 1998, the on SOGIESC; instead, it defines gender as government banned same-sex marriage and 14 The Constitution of the Socialist Republic of Vietnam, 1992, as amended to 2013, https://constitutions.unwomen.org/en/countries/ asia/Vietnam; see also United Nations High Commissioner for Refugees, Refworld (last accessed June 19, 2022), https://www. refworld.org]. 15 Constitution of the Socialist Republic of Vietnam, 1992; see also Institute for Studies of Society, Economies and Environment, “Submission on the Situations of Lesbian, Gay, Bisexual and Transgender (“LBGT”) People in Vietnam for the Eighteenth Session of the United Nations Universal Periodic Review for Vietnam (Jan–Feb. 2014),” https://ilga.org/wp-content/uploads/2016/02/Shadow- report-11.pdf. 16 Nguyen, Son. “Overview of LGBTQ+ Rights in Vietnam.” The Vietnamese Magazine, The Vietnamese Magazine, 19 June 2021, https:// www.thevietnamese.org/2021/06/overview-of-lgbtq-rights-in-vietnam/. Assessment of SOGIESC under Vietnam’s Legal Context 11 cohabitation in 200017 Subsequent decrees in to undergo sex reassignment surgery (Agence 2002, 2003, and 2006 also prohibited same- France-Presse 2015). The government is still sex adoption and surrogacy as well as same- drafting the legal framework that will allow sex marriages “conducted” abroad between for the implementation and enforcement of citizens of Vietnam and noncitizens (UNDP Civil Code Article 37. and USAID 2014). In June 2014, however, the long-established Law on Marriage In 2022, the Ministry of Health submitted and Family was revised to remove the a draft Gender Affirmation Law for prohibition on same-sex marriages (Ives approval20. The law, which was rejected 2018). Notwithstanding this revision, the by the Government, would have been the state still does not legally recognize marriage country’s first ever law on transgender between persons of the same sex (Ives 2018). persons in Vietnam and would have As a result, those in same-sex marriages are examined ways to improve health care for not afforded protections under the law in the persons with a different gender identity event of a conflict or dispute, including for from that assigned at birth (Mendos 2019; matters such as personal or property rights. Minh 2022). The policy dialogue on this in ongoing. A proposal presented by Assembly The country has also made progress on legal member Prof. Nguyen Anh Tri, to advance gender recognition for transgender people. the legislative development regarding legal In November 2015, Vietnamese lawmakers gender marker change was accepted by the voted to pass an amendment to Article 37 of Standing Committee in May 2023. If the the Civil Code legalizing sex reassignment National Assembly agrees, the draft Law will surgery and introducing the right to legal be discussed during its session in October gender recognition for transgender people 2024 and voted in May 2025.21 who have undergone such surgery (ibid; Ives 2018).18 The amended Article 37 permits Although Vietnam has never criminalized people to change their legal gender marker homosexuality, studies suggest that it in official documents if they have undergone is morally frowned upon and viewed as sex reassignment (Human Rights Watch taboo (UNDP and USAID 2014), and that 2020; see also Chiam, Duffy, and Gill 2022)19. discrimination does exist. In a strict gender- Before this, only intersex persons born with normative society with specific roles for both male and female sex organs or persons men and women, men deemed less male or without complete sex organs were permitted women deemed less female are often insulted 17 UNDP (United Nations Development Programme) and USAID (US Agency for International Development). 2014. “Being LGBT in Asia: Viet Nam Country Report.” UNDP, Bangkok. 18 Human Rights Watch. (2020, October 28) Vietnam: Positive step for transgender rights. Retrieved December 21, 2022, from https:// www.hrw.org/news/2015/11/30/vietnam-positive-step-transgender-rights 19 Ibid. 20 Vu, Minh. “International Experts Contribute to Vietnam’s Gender Affirmation Law.” Hanoitimes.vn, Hanoi Times, 27 Aug. 2022, https:// hanoitimes.vn/intl-experts-contribute-to-vietnams-gender-affirmation-law-321628.html. 21 IJsendijk, Atty-Roos, UNDP. May 2023. “Eight Years and Counting: Why the Gender Affirmation Law Matters in Viet Nam.” UNDP, Viet Nam. https://www.undp.org/vietnam/blog/ Gender Inclusive Legislation in Vietnam 12 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities and stigmatized. (see UNDP and USAID Evidence suggests that LGBTI students in 2014)22. Most people still refuse to discuss Vietnam face high rates of physical and their sexual orientation with their families verbal abuse and bullying (UNESCO 2016). for fear of being denigrated or forced into According to a 2015 survey by the Institute counseling (Ibid). for Studies of Society, Economics and the Environment, out of the 2,363 respondents, According to sources from 2014, online and two-thirds had heard homophobic print media have in the past contributed comments from their peers and one-third to discriminatory attitudes in Vietnamese had witnessed the same behavior from society by describing homosexual activities teachers and administrators (Luong and as “abnormal,” “seductive,” and “addictive” Pham 2015). A 2013 study by the Center for (UNDP and USAID). Meanwhile, more Creative Initiatives in Health and Population recent years have seen increasing openness found that over 50 percent of participants and support for the LGBTI community, said their school was not safe for LGBTI including for example through annual pride students (Hoang and Nguyen 2013). parades held in both Hanoi and Ho Chi Minh City. Bullying and violence in school can harm LGBTI students’ mental well-being, affect According to an assessment by Kaleidoscope their academic performance, and cause Australia Human Rights Foundation and the some to drop out or even attempt suicide Institute for Studies of Society, Economics (Hoang and Nguyen 2013). In the same and the Environment, Vietnam currently study, 43 percent of students experiencing has no antidiscrimination legislation to violence reported doing poorly in school protect sexual and gender minority students and some had to drop out. One-third of from discrimination and violence in those who experienced violence at school educational settings.23 Further, the country’s had suicidal thoughts, and half of those had sex education curriculum does not include attempted suicide. Transgender students sexual and gender minorities (Human fare much worse. According to the Center Rights Watch 2020). As a result, stereotypes, for Creative Initiatives in Health and misinformation, and homophobic rhetoric Population, 85 percent of male-to-female are common—with LGBTI students often transgender students drop out and cannot seen as “diseased.” graduate from secondary schools because of assaults and bullying. 22 Although the law does not punish people for their gender expression, Vietnamese society usually refers to cross-dressers or transvestites as Dong co, an often meaning literally “woman-like man” that has expanded to include gay men (see UNDP and USAID 2014; see also Khuat 1998) 23 Submission to the UN Universal Periodic Review regarding the protection of the rights of LGBTI persons in Vietnam, 32nd session of the Universal Periodic Review (January–February 2019), Complied by the Kaleidoscope Human Rights Foundation and the Institute for Studies of Society, Economics and the Environment https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5972&file= EnglishTranslation Assessment of SOGIESC under Vietnam’s Legal Context 13 7 The Vietnam Gender Equality Law © Maik / Pixabay This section provides concrete or to benefit from that development. Thus, recommendations to update Vietnam’s in response to evidence of discrimination 2006 GEL to promote gender inclusion and regarding access to endowments, economic to address the overlapping disadvantages opportunities, and agency, gender equality faced by sexual and gender minorities. The laws are targeted toward countering such recommendations draw on international discrimination—most often of women— experiences, best practices, and relevant legal and guaranteeing equal treatment of men definitions and terms. The recommendations and women. and international best practices presented in this section aim to provide practical examples However, because individuals often to support MOLISA in its efforts to revise experience discrimination on the basis of the GEL and tackle the inequalities faced by their SOGIESC, it is relevant and advisable LGBTI people in Vietnam. to expand the law beyond the protection of women. A few countries have taken steps In most countries with a specific gender to ensure inclusive gender equality laws by equality law, that law is based on a recognition introducing gender neutrality and protecting of existing inequalities, or risk thereof, in gender identity and gender expression, the ability of women and men to contribute consistent with the United Nations to society and economic development and/ Declaration on Sexual Orientation and Gender Inclusive Legislation in Vietnam 14 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Gender Identity.24 Those countries include does not recognize gender-diverse people Argentina (2012), Australia (1984), Cuba (that is, people who identify with a gender (2013), Kosovo (2004), Malta (2003), Mexico or genders outside of male or female). (2003), the Philippines (2017), and Thailand Evidence shows, however, that many forms (2015) (see boxes 1 through 8 for examples of discrimination against both cisgender from some of these countries and from the people, particularly women, and sexual and World Bank’s Equality of Opportunity for gender minorities have similar roots—for Sexual and Gender Minorities study). example, gender bias, stereotypes regarding gender roles, and so on (van den Brink and As noted earlier, Vietnam’s GEL prohibits Dunne 2018). Therefore, adding SOGIESC gender discrimination and seeks to inclusion in gender equality legislation promote and protect equality between will not only guarantee equal conditions men and women. While this is important, and opportunities for sexual and gender the scope of protection provided by the minorities but also ensure gender equality GEL includes only the gender binary and between men and women. Box 1. Australia’s Sex Discrimination Act Australia has made several legal and policy commitments to gender equality to implement existing commitments to the United Nations Convention on the Elimination of All Forms of Discrimination against Women. In 1984, it adopted the Sex Discrimination Act to protect people from unfair treatment on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding. It also protects workers with family responsibilities and makes sexual harassment unlawful. Later, Australia recognized the need to prohibit discrimination against people on the grounds of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, or family responsibilities in the areas of work; accommodation; education; provision of goods, facilities. and services; disposal of land; activities of clubs; and administration of Commonwealth laws and programs. On June 25, 2013, Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (the Amendment Act), which received royal assent on June 28, 2013. The Amendment Act amends the 1984 Sex Discrimination Act to cover discrimination on a range of new grounds, namely sexual orientation, gender identity, intersex status, and relationship status. Article 5 of the Sex Discrimination Act interprets discrimination on the grounds of sexual orientation, gender identity and intersex status as follows: 5A. Discrimination on the ground of sexual orientation (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if, by reason of: 24 United Nations: Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity” (https:// digitallibrary.un.org/record/1639754?ln=en); see also UN resolution: https://www.ohchr.org/en/sexual-orientation-and-gender- identity/resolutions-sexual-orientation-gender-identity-and-sex-characteristics The Vietnam Gender Equality Law 15 (a) the aggrieved person’s sexual orientation; or (b) a characteristic that appertains generally to persons who have the same sexual orientation as the aggrieved person; or (c) a characteristic that is generally imputed to persons who have the same sexual orientation as the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different sexual orientation. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person.(...) 5B. Discrimination on the ground of gender identity (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of: (a) the aggrieved person’s gender identity; or (b) a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or (c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person; the discriminator treats the aggrieved person less favorably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.(...) 5C. Discrimination on the ground of intersex status (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if, by reason of: (a) the aggrieved person’s intersex status; or (b) a characteristic that appertains generally to persons of intersex status; or (c) a characteristic that is generally imputed to persons of intersex status; the discriminator treats the aggrieved person less favorably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of intersex status. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of intersex status.(...) Sources: Australian Government, Federal Register of Legislation, Act No. 4, 1984, Sex Discrimination Act 1984, (htt- ps://www.legislation.gov.au/Details/C2014C00002); Australian Government, Federal Register of Legislation, Act No. 98, 2013, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (https://www.legislation.gov.au/Details/C2013A00098). Gender Inclusive Legislation in Vietnam 16 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Box 2. Kosovo’s Law on Gender Equality Kosovo adopted its first law on gender equality in 2004. In 2015, the National Assembly adopted a new Law on Gender Equality. The new law provides changes in the spirit of clarifying concepts and extends its scope of protection to persons who identify with different gender identities or sexes, beyond the previously simple categories of women and men. It guarantees equal opportunities and treatment in all areas of public and private life, including socioeconomic spheres. Article 2 on the scope of the law states: This Law applies to men, women and persons who have a protected characteristic of gender identity or sex determination, and guarantees equal opportunity and treatment in public and private areas of social life, including political and public life, employment, education, health, economy, social benefits, sport and culture and other areas set out by the present or other law. Article 3.1.9 provides the following definition of gender identity: Gender identity – this protected characteristic covers the gender-related identity, appearance or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth (...) Source: Official Gazette of the Republic of Kosovo, Law No. 05/L -020 On Gender Equality, 2015 (https://equineteur- ope.org/wp-content/uploads/2019/10/Annex-LAW_NO._05_L-020_ON_GENDER_EQUALITY.pdf). Box 3. Mexico and the Philippines on the road to inclusion of sexual and gender minorities Government agencies in Mexico have shown increased interest in addressing sexual orientation and gender identity (SOGI). Article 1, section III, of Mexico’s Federal Law to Prevent and Eliminate Discrimination of 2023 protects against discrimination based on sexual orientation. The same section lists homophobia as a form of discrimination: Discrimination: For the purpose of this law, discrimination will be considered as being any intentional or non-intentional distinction, exclusion, restriction or preferential treatment (by any act or failure to act), which is neither objective, rational or proportional and aims to or results in the obstruction, limitation, prevention, undermining or nullification of the recognition, enjoyment or exercise of human rights and liberties, when it is based on one or several of the following motives: ethnic or national origin, colour of skin, culture, sex, gender, age, disabilities, social or economic background, health, legal status, religion, physical appearance, genetic characteristics, immigration status, pregnancy, language, opinions, sexual preferences, political identity or affiliation, marital status, family situation, family responsibilities, use of language, criminal record or any other motive. Homophobia, misogyny, any expression of xenophobia, racial segregation, antisemitism, racial discrimination and other related forms of intolerance are also regarded as discriminatory.a In order to eradicate the “culture of discrimination” against gender and sexual minorities, some federal entities have broadened the rights contained in their respective legislations so as to obtain more The Vietnam Gender Equality Law 17 and better protection and legal security. Within Mexico, Mexico City (Federal District) has taken the lead in enacting laws and instituting measures to protect the rights of sexual and gender minorities. Its general antidiscrimination legislation goes beyond federal law by prohibiting public and private sector discrimination on the basis of gender identity, as well as on the basis of sexual orientation. This law created an agency, the Council for the Prevention and Elimination of Discrimination in Mexico City, which has the authority to take and resolve complaints of public and private sector discrimination that occur within the Federal District. In the Philippines, some local governments already have ordinances to protect equal opportunities for sexual and gender minorities. In addition, the Department of Education issued the Gender-Responsive Basic Education Policy that primarily “commits to integrate the principles of gender equality, gender equity, gender sensitivity, non-discrimination and human rights in the provision and governance of basic education.” At the national level, the SOGIE Equality Bill, which recognizes sexual and gender minorities as equals and ensures protection of their rights, is being discussed in the Philippines. The bill first introduces and defines the concepts of sexual orientation, gender identity, and gender expression (SOGIE), as well as other pertinent terms. It then lists the practices to be considered discriminatory and unlawful under the bill, like the denial of rights to sexual and gender minorities—such as their right to access public services, to use establishments and services including housing, and to apply for a professional license. The bill will also penalize differential treatment of an employee or anyone engaged to render services, denial of admission to or expulsion from an educational institution, refusal or revocation of accreditation to any organization due to an individual’s SOGIE. The bill is currently pending with the Committee on Women and Gender Equality. a. Government of Mexico, Ley Federal para Prevenir y Eliminar la Discriminación, 2003, https://www. gob.mx/indesol/documentos/ley-federal-para-prevenir-y-eliminar-la-discriminacion-58120. b. Department of Education of The Philippines, DepEd Order No 32, s.2017, https://www.deped. gov.ph/wp-content/uploads/2017/06/DO_s2017_032.pdf The following section details specific and gender minorities. Recommendations recommendations, examples, and good include examples of international experiences, practices for reforming the GEL to broaden best practices, relevant definitions and terms, its scope of protection by including sexual and GEL updates. Gender Inclusive Legislation in Vietnam 18 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities 8 Recommendations for Policy Reform Hanoi © ISEE 8.1 Define SOGIESC in the Law clear and unambiguous SOGIESC-inclusive definitions to avoid misinterpretation of the It is recommended that MOLISA consider law and address gender inequality for all. redefining the GEL’s legal language and For instance, Thailand’s Gender Equality interpretation of key terms. Act uses a gender definition that includes 8.1.1 Recommendation 1: Expand the gender diversity (box 4; see also the earlier Definition of Gender Equality section, “SOGIESC Gaps in the GEL and Recommendations for Policy Reform”). Article 5 of the GEL includes interpretation Section 3 of Thailand’s Gender Equality of terms used in the law. It interprets gender Act defines unfair gender discrimination as equality as equality between men and women, “any act or omission of the act which causes and gender discrimination as discrimination division, discrimination or limitation of any between men and women. Expanding the right and benefit either directly or indirectly definitions of “gender,” “gender equality,” without justification because the person is and “gender discrimination” would broaden male or female or of a different appearance the understanding of gender and provide from his/her own sex by birth.” Recommendations for Policy Reform 19 Box 4. Thailand’s Gender Equality Act Thailand has advanced gender equality and women’s rights through several legal provisions that set up national instruments to promote gender equality. One of the significant legal commitments is the Thailand Gender Equality Act of 2015. This act includes references to sexual orientation, gender identity, gender expression, and sex characteristics in its prohibition of discrimination and was the first national legislation in Southeast Asia to protect against discrimination on the grounds of gender expression by specifically prohibiting any means of discrimination if someone is “of a different appearance from his/her own sex by birth.” Section 3 of the Act interprets gender discrimination as “any act or omission of the act which causes division, discrimination or limitation of any right and benefit either directly or indirectly without justification due to the fact that the person is male or female or of a different appearance from his/her own sex by birth.”a Source: Thailand Gender Equality Act, B.E. 2558, 2015, (https://www.ilo.org/dyn/natlex/docs/ ELECTRONIC/100442/120478/F764760666/THA100442%20Eng.pdf). a. Thailand Gender Equality Act, Section 3. In addition, including definitions for the terms as the one provided by the World Bank terms gender-diverse people, gender identity, in its Equality of Opportunity for Sexual and and gender expression would help to better Gender Minorities report (Cortez, Arzinos, define SOGIESC in the law. Vietnam could and De la Medina Soto 2021). See GEL update provide a similar interpretation of those 1 and box 5 for further details. GEL update 1. Updating the GEL update to expand the definition of “gender equality” What does the current GEL say? The GEL currently interprets gender equality and gender discrimination in the following way: Article 5.1. Gender indicates the characteristics, positions and roles of man and woman in all social relationships. Article 5.3. Gender equality indicates that man and woman have equal position and role; are given equal conditions and opportunities to develop their capacities for the development of the community, family and equally enjoy the achievement of that development. Article 5.5. Gender discrimination indicates the act of restricting, excluding, not recognizing or not appreciating the role and position of man and woman leading to inequality between man and woman in all fields of social and family life.a Gender Inclusive Legislation in Vietnam 20 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Potential new text A potential reinterpretation of those terms could be the following: Article 5.1. Gender indicates the characteristics, positions and roles of man, woman, and gender diverse people [gender minorities] in all social relationships. Article 5.3. Gender equality indicates that man, women, and gender diverse people [or gender minorities] have equal position and role; are given equal conditions and opportunities to develop their capacities for the development of the community, family; and can equally enjoy the achievement of that development. Article 5.5. Gender discrimination indicates the act or omission of restricting, excluding, not recognizing, or not appreciating the role and position of man, women and gender diverse people [or gender minorities] leading to inequality between them in all fields of life. Inclusion of meaning of gender diverse people, gender identity, and gender expression could follow the interpretation provided by the World Bank’s Equality of Opportunity for Sexual and Gender Minorities report (Cortez, Arzinos, and De la Medina Soto 2021): Gender diverse people are those people whose gender identity and/or sex characteristics fall outside the traditional range of masculinity and femininity. Gender identity and expression indicates the means through which individuals show their gender to the world, including through clothing, hairstyles, and mannerisms, among others. Gender identity indicates each person’s profound internal and individual experience of gender (for example, of being a man, a woman, in-between, neither, or something else), which may or may not correspond with the sex they were assigned at birth or the gender attributed to them by society. It includes the personal sense of the body (which may involve, if freely chosen, modification of appearance or function by medical, surgical, or other means) and expressions of gender, including dress, speech, and mannerisms. a. Vietnam, Law on Gender Equality, Law No. 73/2006/QH11 (2006), https://evaw-global-database.unwomen. org/-/media/files/un%20women/vaw/full%20text/asia/law%20on%20gender%20equality%20-%202007/ law%20on%20gender%20equality%20-%202007.pdf?vs=2102. 8.1.2 Recommendation 2: Recognize because including all individuals from all Sexual and Gender Minorities genders and collectives assures that the law covers and protects everyone. Using gender- Integrating and recognizing gender inclusive language also helps reduce gender minorities in the protective scope of the GEL stereotyping, promotes social change, and will require adjusting the wording in the law contributes to achieving gender equality to avoid the use of gendered language to (Sczesny, Formanowicz, and Moser 2016)— the extent possible. Using gender-inclusive which are the objectives of the GEL. language matters—especially in legislation— Recommendations for Policy Reform 21 Box 5. Methodology for the World Bank’s Equality of Opportunity for Sexual and Gender Minorities report At the core of the World Bank Group’s development mandate is a commitment to protect those who are most vulnerable so that everyone—regardless of their gender, race, religion, ethnicity, age, sexual orientation, or disability status—can access the benefits of development. Discrimination creates an uneven playing field and entails substantial economic and social costs. Nonetheless, discrimination against minorities—including sexual and gender minorities—is a global reality and is frequently enshrined in the law. In 2019, the World Bank launched the Equality of Opportunity for Sexual and Gender Minorities study to examine legal discrimination against sexual and gender minorities— lesbian, gay, bisexual, transgender, and intersex people (for the report, see Cortez, Arzinos, and De la Medina Soto 2021). The study reviewed laws regulating sexual and gender minorities and compared laws related to sexual and gender minorities to laws applicable to the heterosexual and cisgender community. The study’s methodology is transparent and uses factual information derived directly from laws and regulations that affect sexual and gender minorities. The study relies on codified sources of national law—constitutions, education laws and regulations, labor codes, family laws, and criminal codes, as well as public moral, nuisance, and vagrancy laws. Laws and policies that are understood to include sexual and gender minorities but do not explicitly mention them are not included, unless interpreted so by the courts. That is to say, legal general antidiscrimination provisions are not considered to be inclusive of SOGIESC (sexual orientation, gender identity and expression, and sex characteristics) unless they include an additional dimension and explicitly incorporate sexual and gender minorities in the legal text. That is, a general provision establishing that “men and women are equal in all fields of social and family life” is not included as a SOGIESC-inclusive nondiscrimination provision. Therefore, according to the World Bank’s Equality of Opportunity for Sexual and Gender Minorities methodology, Vietnam’s current Gender Equality Law would not be considered to be SOGIESC inclusive because it does not explicitly mention or include sexual and gender minorities. Vietnam’s GEL consistently uses “men” and simple categories of “women” and “men” “women” to refer to all subjects protected (see box 1). by law. The lack of any specific mention of sexual and gender minorities can leave Recognizing men and women, and boys gender minorities outside of the scope of and girls, remains relevant for ensuring that the law. There are several ways to integrate Vietnam’s GEL can promote equality and gender-diverse people by including gender- address existing and potential inequalities inclusive language in the revised GEL, based on gender identity. Ensuring broader especially in those provisions that define its inclusion in the law, however, requires scope and gender equality goals (article 4). adding recognition of gender-diverse Australia, for instance, extended the scope of people. Thus, Vietnam could extend the protection of its Sex Discrimination Law to scope of the GEL to include persons who persons who identify with different gender identify with different genders or sexes (Gel identities or sexes, beyond the previously update 2). Gender Inclusive Legislation in Vietnam 22 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities GEL update 2: Recognize Sexual and Gender Minorities What does the current GEL text say? For instance, Article 4 of the GEL on gender equality goals establishes: Article 4. The gender equality goals are to eliminate gender discrimination, to create equal opportunities for man and woman in socio-economic development and human resources development in order to reach substantial equality between man and woman, and to establish and enhance cooperation and mutual assistance between man and woman in all fields of social and family life.a Potential new text Vietnam could follow Kosovo’s example and extend the scope of protection of the GEL to persons who identify with different gender identities or sexes (see box 2). As in Kosovo’s example, Article 4 of the GEL can be rephrased: Article 4. The gender equality goals are to eliminate gender discrimination, to create equal opportunities for man, women and gender diverse peopleb in socio-economic development and human resources development in order to reach substantial equality between man, women and gender diverse people, and to establish and enhance cooperation and mutual assistance between man, women and gender diverse people in all fields of life. a. Vietnam, Law on Gender Equality, Law No. 73/2006/QH11 (2006), https://evaw-global-database.unwomen. org/-/media/files/un%20women/vaw/full%20text/asia/law%20on%20gender%20equality%20-%202007/ law%20on%20gender%20equality%20-%202007.pdf?vs=2102. b. An alternative to the term “gender diverse people” throughout Article 4 could be “gender minorities.” 8.2 Provide Protection The current GEL prohibits discrimination for Members of the LGBTI only on the basis of gender. Article 6.2 states, “Man and woman are not discriminated in Community terms of gender.” Integrating sexual and It will be relevant to further expand the gender minorities into the GEL requires prohibited grounds of discrimination adding the concepts of gender identity, established in the GEL to introduce gender expression, and sex characteristics SOGIESC and guarantee equal opportu­ as areas protected from discrimination. nities for LGBTI people. As noted earlier, Correspondingly, including a prohibition of breaking down the barriers that currently discrimination based on sexual orientation block opportunities for LGBTI people and gender identity and expression would and promoting their inclusion can lead increase the visibility of these groups before to improved economic growth and the law, avoid mischaracterization, and productivity (Badgett et al. 2014). ensure comprehensive legal protection (Ganty and Sanchez Benito 2021). A Recommendations for Policy Reform 23 number of European countries (Belgium, females, sexual minorities (10.5 percent of Bosnia and Herzegovina, Finland, Germany, females) are less likely to graduate college and Greece, Norway, Malta, and Spain) serve more likely to be unemployed, to be poor or as examples of countries that have revised near poor, to receive public assistance, and to antidiscrimination legislation to include report economic hardship and lower social sex characteristics as a protected ground.25 status than heterosexuals. Among males, Grounds that are not expressly named risk sexual minorities (4.2 percent of males) are not being covered by judicial interpretation more likely than heterosexuals to be college and by policy and decision-making. And, if graduates; however, they also have lower legislation intentionally or unintentionally personal incomes than their heterosexual deprives LGBTI people of the ability to fully counterparts. Another study draws on one participate in all fields of life, society risks year of data from a transgender rights index creating a group of individuals with low levels and finds a similar positive correlation with of educational attainment, productivity, life economic development (Badgett et al. 2014). expectancy, and personal income—all key It finds close links between improved rights factors in economic development (box 6). for LGBTI people and positive economic outcomes at both the individual level and Article 6.1 of the 2006 GEL establishes, the broader macroeconomic level. “Man and woman are equal in all fields of social and family life”; but the law does not 8.2.1 Recommendation 3: Expand Basic Principles of Gender Equality mention cultural, political, or economic fields of life. An inclusive prohibition of As established by The Convention on the discrimination would specify all fields of life Elimination of All Forms of Discrimination where vulnerable groups such as women, against Women, fields of life should include gender minorities are discriminated against political, economic, social, cultural, civil, or or excluded. any other field. It is therefore recommended that Article 6 of the GEL on the basic International analysis points to the relevance principles of gender equality be updated to of these other fields of life. For example, include gender minorities in its protective a study on sexual orientation and sex scope, identify sexual orientation as a differences in socioeconomic status shows prohibited ground of discrimination, and that sexual minorities, especially females, prohibit discrimination in all fields of life, have lower socioeconomic status than explicitly including areas of employment, their heterosexual counterparts (Conron, education, and health, among others. Goldberg, and Halpern 2018). Among education, and health, among others. 25 Council of Europe, “Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity,” https://search.coe.int/cm/Pages/result_details. aspx?ObjectID=09000016805cf40a. Gender Inclusive Legislation in Vietnam 24 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Box 6. SOGI inclusion in Cuba’s legal framework Cuba was the first country to sign and the second to ratify the Convention on the Elimination of All Forms of Discrimination against Women. It is also one of the few countries in the world that constitutionally outlaw discrimination on the basis of sexual orientation and gender identity (SOGI), reassuring its commitment to the principle of gender equality. After introduction of the first antidiscrimination laws based on sexual orientation in Cuba in 2013, the National Assembly approved the new Labor Code that included antidiscrimination laws based on sexual orientation and disability. The Labor Code laid the foundations for the new Cuban Constitution of 2019 to definitively prohibit discrimination based on sexual orientation and gender identity. Subsequently, following the 2022 Cuban Family Code referendum, the country now legally recognizes same-sex marriage, adoption by same-sex partners, and surrogacy as part of one of the most progressive family codes in Latin America. Article 42 of the Constitution of Cuba recognizes the principle of equality and nondiscrimination on grounds of sex, gender, sexual orientation, and gender identity: All persons are equal before the law, receive the same protection and treatment from the authorities and enjoy the same rights, freedoms and opportunities, without any discrimination based on sex, gender, sexual orientation, gender identity, age, ethnic origin, skin color, religious belief, disability, national or territorial origin, or any other personal condition or circumstance involving distinction prejudicial to human dignity. Everyone has the right to enjoy the same public spaces and service establishments. They also have the right to receive equal pay for equal work, without any discrimination. Article 4.g of the Family Code adds an extra dimension to the prohibition of nondiscrimination included in the constitution and incorporates the express prohibition of discrimination on the grounds of gender identity and sexual orientation in the family environment: Article 4. Rights of people in the family environment. In addition to those recognized in the Constitution of the Republic of Cuba, this Code regulates the rights of individuals to: g) the full development of sexual and reproductive rights in the family environment, regardless of sex, gender, sexual orientation and gender identity, disability status or any other personal circumstance; including the right to age-appropriate scientific information on sexuality, sexual health and family planning (...) Source: Cuba, Constitution of the Republic of Cuba 2019, https://www.constituteproject.org/constitution/ Cuba_2019.pdf?lang=en. Kosovo’s Law on Gender Equality, for sexual orientation, gender identity and example, provides equal opportunities and gender expression, and sex characteristics treatment to “men, women and persons as a protected ground. Malta’s Equality for who have a protected characteristic of Men and Women Act, for instance, explicitly gender identity or sex determination” in “all protects gender and sexual minorities—and areas of public and private life”—including explicitly includes intersex individuals— socioeconomic spheres (see box 2). Some against discrimination on an equal footing other European countries have revised with all other people (box 7). antidiscrimination legislation to include Recommendations for Policy Reform 25 Box 7. Malta’s Equality Act for Men and Women Another example of expanded inclusion is Malta’s Equality Act for Men and Women of 2003, which safeguards equal treatment in employment, education, and financial services on the grounds of gender and family responsibilities. It provides protection from discrimination based on sex, sexual orientation, age, religion or belief, racial or ethnic origin, gender identity, gender expression, and sex characteristics. Article 3 of the act states that “discrimination” means discrimination based on sex or because of family responsibilities, sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics and includes the treatment of a person in a less favorable manner than another person is, has been or would be treated on these grounds and “discriminate” shall be construed accordingly. For the purposes of sub article (1) discrimination based on sex or because of family responsibilities or sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics is: (a) the giving of less favorable treatment, directly or indirectly, to men and women on the basis of their sex or because of family responsibilities or because of their sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics; (b) treating a woman less favorably for reasons of actual or potential pregnancy or childbirth; (c) treating men and women less favorably on the basis of parenthood, family responsibility or for some other reason related to sex and, or sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics; (d) any treatment based on a provision, criterion or practice which would put persons at a particular disadvantage compared with persons of the other sex or of the same sex or sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex. Source: Malta, Equality for Men and Women Act, Chapter 456, 2003, https://legislation.mt/eli/cap/456/eng. GEL update 3. Expand Basic Principles of Gender Equality What does the current GEL text say? Article 6 of the GEL on the basic principles on gender equality currently states: Basic principles on gender equality 1. Man and woman are equal in all fields of social and family life. 2. Man and woman are not discriminated in terms of gender. 3. The measures aimed at promoting gender equality are not considered the gender discrimination. 4. Policies aimed at protecting and supporting the mother are not considered gender discrimination. 5. Ensuring the gender mainstreaming in the process of development and implementation of laws. 6. Exercising gender equality is the responsibility of agencies, organizations, families and individuals.a Gender Inclusive Legislation in Vietnam 26 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Potential new text Article 6 of the GEL could be rephrased as follows to address the SOGIESC gap: Article 6. Basic principles on gender equality. 1. Man, women, and gender diverse people/gender minorities must be treated equally in all fields of life, including: - access to employment, self-employment and occupation; - access to education and all types and levels of vocational guidance, vocational training, advanced vocational training and re-qualifications, including internship experience; - conditions of employment and working conditions, including hiring, termination of the contract and salary; - access to health; - access to housing; - fair and equal treatment in court proceedings and all other authorities administering justice; - access and participation in science, sports, art, services and cultural activities; - participation in public affairs, including the right to vote and the right to be elected; - and any other opportunities provided for by the legislation in force. 2. It shall be prohibited to discriminate against anyone in terms of actual or perceived gender, sex, sexual orientation, gender identity, gender expression, and/or sex characteristics. 3. The measures aimed at promoting gender equality are not considered gender discrimination. 4. Policies aimed at protecting and supporting the mother are not considered gender discrimination. 5. Ensuring gender mainstreaming in the process of development and implementation of laws. 6. Exercising gender equality is the responsibility of agencies, organizations, families and individuals. a. Vietnam, Law on Gender Equality, Law No. 73/2006/QH11 (2006), https://evaw-global-database.unwomen. org/-/media/files/un%20women/vaw/full%20text/asia/law%20on%20gender%20equality%20-%202007/ law%20on%20gender%20equality%20-%202007.pdf?vs=2102.law%20on%20gender%20equality%20 -%202007.pdf?vs=2102. 8.3 Promote, Implement, International experience shows that gender Mainstream, and Advance mainstreaming in laws and policies provides an effective approach to promoting gender Gender Equality equality (see, for example, Cortez, Arzinos, MOLISA is the leading line ministry and De la Medina Soto 2021; World Bank responsible for implementing the GEL. As 2022; World Bank Group 2019b). The such, MOLISA is also well placed to lead Vietnam Law on Promulgation of Laws of the SOGIESC-inclusive reforms and address 2019 provides that the drafting process of legal SOGIESC gaps in the law. documents shall include definition of gender Recommendations for Policy Reform 27 issues and assessment of the gender impact of Committee with authority to establish new or amended laws. The scarcity of gender- policies and action plans for the promotion disaggregated data in Vietnam, however, of gender equality (box 8). The act states that makes it difficult to conduct an informed the Gender Equality Promotion Committee gender assessment as mandated in the GEL shall adopt measures to “truly promote and the Law on Promulgation of Laws. gender equality”, including promoting access to social, economic, and political Although laws, and gender mainstreaming opportunities, and improving social practices in those laws, do matter, they are not enough and cultural norms toward gender equality so to eliminate SOGIESC-based inequalities. as to eliminate bias based on inequality and A key factor to effective implementation of violence due to gender.26 It also establishes laws is the ability to report discrimination the Committee on Consideration of Unfair through the legal mechanisms of the state. Gender Discrimination (the “WorLorPor National equality bodies or national human Committee”), which decides matters involving rights institutions responsible for handling complaints of unfair gender discrimination. SOGIESC-based discrimination claims—and The Law on Gender Equality of Kosovo also the existence of national action plans that establishes, as a general measure to prevent specifically address sexual and gender identity gender discrimination and ensure gender issues—are critical elements of an enabling equality, that “gender division of all data environment for improved SOGIESC and collected statistical information shall be inclusion. recorded, registered, processed and shall be In Thailand, for instance, the Gender Equality obliged to submit these data to the Kosovo Act created the Gender Equality Promotion Agency of Statistics.”27 Box 8. Gender mainstreaming in Thailand Thailand’s Gender Equality Act achieves gender equality by encouraging government agencies to collect sex-disaggregated data for designing gender-sensitive policies and gender-responsive monitoring. The act created the Gender Equality Promotion Committee with authority to establish policies and action plans for the promotion of gender equality. Its authority includes providing the Cabinet with policy recommendations, establishing guidelines to assist victims of gender discrimination, promoting studies on how to prevent gender discrimination, and establishing regulations relating to the supervision and audit of the Committee. The Committee shall adopt measures to “truly promote gender equality,” including promoting accessibility to social, economic, and political rights, and improving social practices and cultural norms toward gender equality to eliminate bias based on inequality and violence due to gender. Chief Gender Executive Officers, senior officials in every ministry and department who oversee the integration of gender consideration 26 Thailand Gender Equality Act, B.E. 2558, 2015, https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/100442/120478/F764760666/ THA100442%20Eng.pdf. 27 Official Gazette of the Republic of Kosovo, Law No. 05/L -020 On Gender Equality, 2015, Article 5.1.8, https://equineteurope.org/wp- content/uploads/2019/10/Annex-LAW_NO._05_L-020_ON_GENDER_EQUALITY.pdf. Gender Inclusive Legislation in Vietnam 28 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities into their programs, and Gender Focal Points are appointed to mainstream gender perspectives in all stages of the government agencies’ activities (OWAFD 2004). It also establishes the Committee on Consideration of Unfair Gender Discrimination, which decides matters involving complaints of unfair gender discrimination. Section 10 of the act establishes the duties and powers of the Gender Equality Promotion Committee (or “SorTorPor Committee”): Section 10. The SorTorPor Committee has the powers and duties as follows: (1) establishing out policies, measures and action plans for promotion of gender equality in all public and private entities in the central, regional and local areas, (2) providing the Cabinet with policy recommendations and proposals for improvement of laws, rules and regulations so as to be in accordance with the objectives of this Act, (3) establishing guidelines to provide assistance, compensation and remedy or relief to the victims of unfair gender discrimination, (4) examining and providing suggestions and advice relating to operations of officials and state agencies on the execution of this Act, (5) promoting studies, research and disseminate knowledge on how to prevent unfair gender discrimination, (6) encouraging data collection on sex differentiation and submit report to the Cabinet on operations in compliance with this Act at least once a year, (7) establishing regulations relating to the supervision and audit of the operations of the Committee on Consideration of Unfair Gender Discrimination and other relevant regulations in order to be in compliance with this Act, (8) doing any act as specified in the law to be the powers and duties of the SorTorPor Committee, or as assigned by the Cabinet. The implementation of Paragraph 1 shall include the adoption of the following special measures to truly promote gender equality: 1. promoting accessibility to social, economic and political rights, 2. improving social practices and cultural norms toward gender equality so as to eliminate bias based on sex inequality and violence due to gender which obstruct entitlement of various rights. Section 14 establishes the powers and duties of the Committee on Consideration of Unfair Gender Discrimination (or “WorLorPor Committee”): Section 14. The WorLorPor Committee has the following powers and duties: 1. deciding the case where there are complaints whether there has been unfair gender discrimination as prescribed in Section 18, 2. establishing temporary measures for protection or mitigation as prescribed in Section 19, 3. issuing orders in accordance with Section 20, 4. submitting complaints to the Ombudsman in accordance with Section 21, 5. going any other acts as prescribed by laws as the powers and duties of the WorLorPor Committee. Source: Thailand Gender Equality Act, B.E. 2558, 2015 (https://www.ilo.org/dyn/natlex/docs/ELECTRON- IC/100442/120478/F764760666/THA100442%20Eng.pdf). Recommendations for Policy Reform 29 8.3.1 Recommendation 4: Specify and laws could be expanded to specify that the Expand Gender Mainstreaming assessment include SOGIESC considerations to understand relationships between men The GEL’s provision of interpretations of and women (including gender and sexual terms provides a restrictive definition of minorities), their access to resources and “mainstreaming gender equality” (Article 5, opportunities, and the constraints they face section 7). Mainstreaming of gender equality relative to each other. Also, the responsibilities could instead be interpreted in the GEL as a of the state management agency of gender mechanism for achieving the goal of gender equality established in Article 26 of the GEL equality by identifying any differences can be expanded to include the collection between men, women, and gender minorities of gender-disaggregated data, which can be in all fields of life, and seeking to redress those used for an in-depth gender assessment that differences through legislation, policies, and measures the differences between women programs. The GEL’s current requirement and men on various social and economic of a gender assessment of new or updated dimensions. GEL update 4: Promote, Implement, Mainstream, and Advance Gender Equality What does the current GEL text say? Article 5.7 of the GEL on mainstreaming gender equality states:: Article 5.7 Mainstreaming gender equality in the process of making legal normative documents is the measure aimed at achieving the goal of gender equality by defining gender issue, forecasting the gender impact of documents, responsibilities and resources to deal with gender issues in the social relations that are adjusted by legal normative documents.a Article 26 on the responsibilities of the state management agency of gender equality includes the following duties: 1. To develop and submit to the Government on the promulgation of national strategy, policies, and target programmes on gender equality. 2. To develop and submit to the Government on the promulgation or to promulgate or to give guidelines on develop legal normative documents on gender equality within its competence. 3. To participate in assessing the mainstreaming of gender equality in development of legal normative documents. 4. To synthesize and report to the Government on the implementation of the national goals of gender equality. 5. To play the key role in coordinating with the ministries, ministerial-level agencies in exercising state management function on gender equality. 6. To examine, inspect and handle violations, complaints and denunciation against violations of gender equality. Gender Inclusive Legislation in Vietnam 30 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Potential new text An inclusive interpretation of the term “mainstreaming gender equality” may be formulated as follows: Article 5.7. “Mainstreaming gender equality” in the process of making legal normative documents is the measure aimed at achieving the goal of gender equality by defining gaps based on gender (including gender minorities) and sexual orientation in endowments, economic markets, and agency, forecasting the gender impact of documents, responsibilities, and resources to deal with gender issues in the social relations that are adjusted by legal normative documents. Expand the responsibilities of the state management agency of gender equality by including gender- disaggregated data collection: 1. To develop and submit to the Government on the promulgation of national strategy, policies, and target programmes on gender equality. 2. To develop and submit to the Government on the promulgation or to promulgate or to give guidelines on develop legal normative documents on gender equality within its competence. 3. To participate in assessing the mainstreaming of gender equality in development of legal normative documents, and 4. To synthesize and report to the Government on the implementation of the national goals of gender equality. 5. To collect gender-disaggregated data to identify gender-based (in)equalities, inform and measure impact of normative documents. 6. To play the key role in coordinating with the ministries, ministerial-level agencies in exercising state management function on gender equality. 7. To examine, inspect and handle violations, complaints and denunciation against violations of gender equality. a. Vietnam, Law on Gender Equality, Law No. 73/2006/QH11 (2006), https://evaw-global-database.unwomen. org/-/media/files/un%20women/vaw/full%20text/asia/law%20on%20gender%20equality%20-%202007/ law%20on%20gender%20equality%20-%202007.pdf?vs=2102. Recommendations for Policy Reform 31 9 Assessment of Implications for SOGIESC Inclusion in GEL for Other Key Laws As MOLISA leads the country’s update of 9.1 Gender Affirmation Law and Other the GEL to make it more inclusive of people Laws on Transgender Inclusion who face overlapping disadvantages— An important step in promoting equality including disadvantages based on their and inclusion of transgender people is the SOGIESC—it has the opportunity to take a adoption of a Gender Affirmation Law more holistic view of other key policies and (Flowers and Måwe 2021). Such a law legal frameworks that affect LGBTI people would allow transgender people in Vietnam in the country. This section highlights how to apply for a change in their gender a GEL inclusive of SOGIESC may influence marker without being forced to undergo four broad areas: legal gender recognition, invasive medical interventions. Moreover, health care, labor, and education. Although it would protect marriages if one partner outside the scope of this note, we further legally changes their gender. Although present the other Key Laws that need to be same-sex marriage is not legally recognized reviewed to achieve the goals established in in Vietnam, international human rights the GEL: principles state that a marriage should Gender Inclusive Legislation in Vietnam 32 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities remain valid if it was legal at the time it was conducted. Argentina, besides providing a quota of 30 percent of state jobs to women, requires that 9.2 Health Care Framework 1 percent of the jobs in the public sector be reserved to transgender people, according Achieving the gender equality goal to the wording of the law.28 This measure is established in the GEL requires implemen­ intended to address the labor discrimination ting antidiscrimination legislation to experienced by gender minorities and reduce discrimination on the basis of as a state reparation for the institutional sexual orientation, gender identity, and and social violence to which they are subjected. Although the 1 percent quota intersex status in health, and to improve the applies to federal banks, public enterprises, training of health professionals to increase hospitals, and local and federal government their understanding of and sensitivity departments, the economic incentives to the specific health needs of sexual and included in the new law are intended to gender minorities. help transgender people find work in all sectors. The law offers tax incentives and 9.3 Employment Framework soft loans for private businesses that hire gender minorities. In 2019, Vietnam reformed its Labor Code to include gender equality in employment. Although the reform addressed the gender The law makes no explicit mention of gap and workplace discrimination faced SOGIESC, however, nor does it elaborate by women, it did not include equality on whether “gender” or “personal for sexual and gender minorities. Global characteristics” include SOGIESC. As a data show that workplace discrimination result, it does not guarantee that sexual based on SOGIESC causes unemployment and gender minorities will be protected or underemployment of LGBTI people, under the law; if the protective scope of which means that they—and the country— the law does not expressly include them, are missing out on their full productive they also might not be covered by judicial capacity. Relevant updates to the Labor interpretation or by policy and decision- Code could include protection of equal making. Discrimination against sexual and opportunities for sexual and gender gender minorities in educational settings— minorities in all aspects of employment, such as when teachers and curricula do such as hiring, firing, pay, job assignments, not include information relevant to their promotions, layoffs, training, and any other development or are discriminatory toward term or condition of employment. LGBTI people—hampers their learning and encourages students to drop out. That 9.4 Educational Framework exclusion results in diminished human Vietnam’s Law on Education establishes an capital and keeps them from higher-skilled equal right to education for all—regardless jobs that contribute to overall economic of gender and personal characteristics. productivity. 28 Argentina, Decree 721/2020, https://www.argentina.gob.ar/normativa/nacional/decreto-721-2020-341808/texto. Assessment of Implications for SOGIESC Inclusion in GEL for Other Key Laws 33 Despite limited recent data to illustrate nondiscrimination policies in education the relevance of this recommendation that are inclusive of sexual orientation, in the Vietnamese context, a study from gender identity, and intersex status. 2013 found that 41 percent of LGBTI Moreover, addressing sexual orientation, persons had suffered discrimination and gender identity, and intersex status in the violence at school or university, with 19 school curriculum and in teacher training percent claiming to have been beaten and materials would promote understanding 18 percent sexually harassed (Hoang and and cultural awareness and help reduce Nguyen 2013). These findings highlight bullying and discrimination. Vietnam’s lack of anti-bullying and Gender Inclusive Legislation in Vietnam 34 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Conclusion Thanks to its current GEL, Vietnam has gender minorities by guaranteeing equal made notable progress in advancing opportunities for everyone in all fields of gender equality, including in its policy life. The update to the GEL presents a critical framework. Despite that progress, Vietnam entry point to recognize sexual and gender is still halfway on the road to legal inclusion minorities, provide protection and equal of LGBTI people. Fostering SOGIESC opportunities for members of the LGBTI inclusion in Vietnam will require addressing community, and promote, mainstream and existing inequalities and making the implement gender equality in Vietnam. revised GEL more inclusive of sexual and Conclusion 35 Appendix A Glossary This glossary provides a common basis of in the English language. Because sexual understanding and terminology related orientation and gender identity terms of to sexual orientation, gender identity, identification vary across cultures and gender expression, and sex characteristics languages, this list is by no means complete (SOGIESC). It presents the terms in or exhaustive. The terms and definitions categories for clarity of comparison. These included below are in standard English. are common terms and definitions captured General SOGI Sexual orientation and gender identity SOGIESC Sexual orientation, gender identity, gender expression, and sex characteristics LGBTI Lesbian, gay, bisexual, transgender, and intersex Discrimination Discrimination on the basis of SOGI means creating a distinction, exclusion, or restriction that has the purpose or effect of impairing or excluding a person based on their real or perceived sexual orientation, gender identity, gender expression, or sex characteristics (SOGIESC) from being on an equal basis with others. Sex Intersex An umbrella term that refers to people who have one or more of a range of variations in physical sex characteristics that fall outside of traditional conceptions of male or female bodies. Some intersex characteristics are identified at birth, whereas other people may not discover they have intersex traits until puberty or later in life. Note that intersex is not synonymous with transgender. Sex characteristics Each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty. Gender identity Gender Gender refers to social, behavioral, and cultural attributes, expectations and norms associated with being male or female. Gender diverse Persons whose gender identity, including their gender expression, is at odds with what is perceived as being the gender norm in a particular context at a particular point in time, including those who do not place themselves in the male/female binary. Gender minority Persons whose gender identity, including their gender expression, is at odds with what is perceived as being the gender norm in a particular context at a particular point in time, including those who do not place themselves in the male/female binary. Gender identity Each person’s deeply felt internal and individual experience of gender (e.g., of being a man, a woman, in between, neither, or something else), which may or may not correspond with the sex they were assigned at birth or the gender attributed to them by other people. Note that this sense of self is not related to sexual orientation. Gender identity is internal; it is not necessarily visible to others. Gender Inclusive Legislation in Vietnam 36 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Gender expression The way people show their gender to the world around them, through things such as clothing, hairstyles, and mannerisms, to name a few. Transgender Refers to a person whose sex assigned at birth does not match their gender identity. The term “trans” is often used as shorthand. Cisgender Cis or cisgender are used for people whose gender identity is in alignment with the sex assigned to them at birth (cis meaning “in alignment with” or “on the same side”). Sexual orientation Sexual orientation Each person’s enduring capacity for profound romantic, emotional, and/or physical feelings for, or attraction to, person(s) of a particular sex or gender. It encompasses hetero-, homo-, and bi-sexuality and a wide range of other expressions of sexual orientation. Sexual and gender Persons whose sex, gender, sexual orientation, gender identity, and/or gender minorities expression differ from those of the majority of the surrounding society. Lesbian A woman who predominantly has the capacity for romantic, emotional, and/or physical attraction to other women. Gay A man who predominantly has the capacity for romantic, emotional, and/or physical attraction to other men. The term is also used sometimes to describe women who are attracted to other women. Heterosexual People who are attracted to individuals of a different sex and/or gender identity from their own (also referred to as “straight”). Bisexual People who have the capacity for romantic, emotional, and/or physical attraction to person(s) of the same sex or gender, as well as to person(s) of a different sex or gender. Appendix A Glossary 37 References Agence France-Presse. 2015. “Vietnam Law Change Introduces Transgender Rights.” Guardian, November 24, 2015. https://www.theguardian.com/world/2015/nov/24/ vietnam-law-change-introduces-transgender-rights. Argentina, Decree 721/2020, https://www.argentina.gob.ar/normativa/nacional/ decreto-721-2020-341808/texto. Australian Aid, ADB, ILO and UN Women (2021): Country Gender Equality Profile. Viet Nam 2021. Australian Government, Federal Register of Legislation, Act No. 4, 1984, Sex Discrimination Act 1984, https://www.legislation.gov.au/Details/C2014C00002. Australian Government, Federal Register of Legislation, Act No. 98, 2013, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 https:// www.legislation.gov.au/Details/C2013A00098. Badgett, M. V. L.,S. Nezhad, K. Waaldijk, and Y. van der Meulen Rodgers. 2014. “The Relationship between LGBT Inclusion and Economic Development: An Analysis of Emerging Economies.” Williams Institute, UCLA School of Law, Los Angeles. Badgett, M. V. L., and R. Sell. 2018. “A Set of Proposed Indicators for the LGBTI Inclusion Index.” Working paper, United Nations Development Programme, New York. Buchhave, H. V. C. Nguyen, T. G. Nguyen, and T. M. H. Pham. 2020. “Benefits of Joint Land Titling in Vietnam.” World Bank, Hanoi. World Bank. https://openknowledge. worldbank.org/handle/10986/33546. Chiam, Z., S. Duffy, and M. Gill. 2022. “Trans Legal Mapping Report 2017: Recognition before the Law.” International Lesbian, Gay, Bisexual, Trans and Intersex Association, Geneva. https://ilga.org/downloads/ILGA_Trans_Legal_Mapping_Report_2017_ENG.pdf. Conron, K. J., S. K. Goldberg, and C. T. Halpern. 2018. “Sexual orientation and sex differences in socioeconomic status: a population-based investigation in the National Longitudinal Study of Adolescent to Adult Health.” Journal of Epidemiology & Community Health 72 (11): 1016–26. https://jech.bmj.com/content/72/11/1016. Cortez, C., J. Arzinos, and C. De la Medina Soto. 2021. Equality of Opportunity for Sexual and Gender Minorities. Washington, DC: World Bank. Cuba, Constitution of the Republic of Cuba 2019, https://www.constituteproject.org/ constitution/Cuba_2019.pdf?lang=en. Cunningham, W., F. Alidadi, and H. Bucchave. 2018. “Vietnam’s Future Jobs: The Gender Dimension.” Australia–World Bank Group Strategic Partnership in Vietnam Gender Theme Note, World Bank, Hanoi. https://openknowledge.worldbank.org/ handle/10986/30172. Gender Inclusive Legislation in Vietnam 38 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Department of Education of The Philippines, DepEd Order No 32, s.2017, https://www.deped. gov.ph/wp-content/uploads/2017/06/DO_s2017_032.pdf Dhar, S. 2019. “Gender and Sustainable Development Goals (SDGs).” India Journal of Gender Studies 25 (1): 47–78. Fisk, K., and J. Byrne. 2020. The Cost of Stigma: Understanding and Addressing Health Implications of Transphobia and Discrimination on Transgender and Gender Diverse People. Evidence from a Trans-Led Research in Nepal, Indonesia, Thailand, and Vietnam. Bangkok: Asia Pacific Transgender Network. Ganty, S., and J. C. Sanchez Benito. 2021. Expanding the List of Protected Grounds within Anti- Discrimination Law in the EU. Brussels: Equinet. https://equineteurope.org/publications/ expanding-the-list-of-protected-grounds-within-anti-discrimination-law-in-the-eu-an- equinet-report/. Flowers, R., and A. Måwe. 2021. “It Is Time for Vietnam to Walk the Talk on Trans Rights.” Hanoi Times, December 10, 2021. https://hanoitimes.vn/it-is-time-for-vietnam-to-walk- the-talk-on-trans-rights-319508.html. Gallagher, R. 2019. “Redefining ‘CEDAW’ to Include LGBT Rights: Incorporating Prohibitions against the Discrimination of Sexual Orientation and Gender Identity.” Southern California Interdisciplianry Law Journal 29: 637. Government of Mexico, Ley Federal para Prevenir y Eliminar la Discriminación, 2003, https://www.gob.mx/indesol/documentos/ley-federal-para-prevenir-y-eliminar-la- discriminacion-58120. Hoang, A. T., and V. T. Nguyen. 2013. “An Online Study of Stigma, Discrimination and Violence against Homosexual, Bisexual, Transgender, Transsexual, and Intersex People At School.” Center for Creative Initiatives in Health and Population. Human Rights Campaign. 2021. “We are Here: Understanding the Size of the LGBTQ+ Community.” Human Rights Campaign, Washington, DC. Human Rights Watch. 2020. “My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam. Human Rights Watch. https://www.hrw.org/ sites/default/files/report_pdf/vietnam0220_web.pdf. ILGA World. 2020. “State-Sponsored Homophobia: Global Legislation Overview Update 2020. International Lesbian, Gay, Bisexual, Trans and Intersex Association, Geneva. https://ilga.org/downloads/ILGA_World_State_Sponsored_Homophobia_report_ global_legislation_overview_update_December_2020.pdf. Ives, M. 2018. “Gay Courtship on Vietnam’s ‘The Bachelor’ Turned Heads Abroad. Back Home? Meh.” New York Times, September 25, 2018. https://www.nytimes.com/2018/09/25/ world/asia/vietnam-bachelor-gay-lesbian-contestants.html?searchResultPosition=1. References 39 Kennedy, L. 2015. “Struggle and Freedom: The Vietnamese Archive that Celebrates a Secret LGBT Culture.” Guardian, December 14, 2015. https://www.theguardian.com/global- development-professionals-network/2015/dec/14/vietnamese-archive-lgbt. Khuat, T. H. 1998. “Study on Sexuality in Vietnam: The Known and Unknown Issues.” Regional Working Paper 11, Population Council, Hanoi. https://www.researchgate.net/ publication/309488215_Study_on_Sexuality_in_Vietnam_The_Known_and_Unknown_ Isues/link/58131fe608aeffbed6ba4660/download. Luong, T. H., and Q. P. Pham. 2015. “Is It Because I am LGBT? Discrimination Based on Sexual Orientation and Gender Identity in Vietnam.” Institute for Studies of Society, Economics and the Environment. https://www.vn.undp.org/content/vietnam/en/home/ library/democratic_governance/is-it-because-i-am-lbgt.html. Malta, Equality for Men and Women Act, Chapter 456, 2003, https://legislation.mt/eli/ cap/456/eng. Manalastas, E. J. 2016. “Suicide Ideation and Suicide Attempt among Young Lesbian and Bisexual Filipina Women: Evidence for Disparities in the Philippines.” Asian Women 32 (3): 101–20. Mendos, L. R. 2019. “State-Sponsored Homophobia 2019.” International Lesbian, Gay, Bisexual, Trans and Intersex Association, Geneva. https://ilga.org/downloads/ILGA_ State_Sponsored_Homophobia_2019.pdf. Nguyen, S. 2019. “LGBT Rights: Vietnam Recognises Transgender People, But There’s a Flaw in Its Law.” This Week in Asia, June 21, 2019. https://www.scmp.com/week-asia/society/ article/3015423/lgbt-rights-vietnam-recognises-transgender-people-theres-flaw-its. Nguyen, S. “Overview of LGBTQ+ Rights in Vietnam.” The Vietnamese Magazine, 19 June 2021, https://www.thevietnamese.org/2021/06/overview-of-lgbtq-rights-in- vietnam/. Official Gazette of the Republic of Kosovo, Law No. 05/L -020 On Gender Equality, 2015 https://equineteurope.org/wp-content/uploads/2019/10/Annex-LAW_ NO._05_L-020_ON_GENDER_EQUALITY.pdf. OWAFD (Office of Women’s Affairs and Family Development, Thailand). 2004. “Questionnaire to Governments On Implementation of the Beijing Platform for Action (1995) and The Outcome of the Twenty-Third Special Session of the General Assembly (2000).” https:// www.un.org/womenwatch/daw/Review/responses/THAILAND-English.pdf. Save the Children and ISMS (Institute of Social and Medical Studies). 2015. “Being LGBT Young People in Vietnam: Life on the Streets and the Light through the Crack, A Summary of Research Findings.” Save the Children and ISMA, Hanoi. Sczesny, S., M. Formanowicz, and F. Moser. 2016. “Can Gender-Fair Language Reduce Gender Stereotyping and Discrimination?” Frontiers in Psychology 7: 25. https://www.frontiersin. org/articles/10.3389/fpsyg.2016.00025/full. Gender Inclusive Legislation in Vietnam 40 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities Stonewall International. 2016. “The Sustainable Development Goals and LGBT Inclusion.” Stonewall International. https://www.stonewall.org.uk/system/files/sdg-guide.pdf. Thailand Gender Equality Act, B.E. 2558, 2015, (https://www.ilo.org/dyn/natlex/docs/ ELECTRONIC/100442/120478/F764760666/THA100442%20Eng.pdf) Timothy, K., and M. Freeman. 2000. “The CEDAW Convention and the Beijing Platform for Action: Reinforcing the Promise of the Rights Framework.” Hubert H. Humphrey School of Public Affairs, University of Minnesota, Minneapolis. http://hrlibrary.umn.edu/iwraw/ Freeman-Timothy.html. UNDP (United Nations Development Programme) and USAID (US Agency for International Development). 2014. “Being LGBT in Asia: Viet Nam Country Report.” UNDP, Bangkok. UNESCO (United Nations Educational, Scientific and Cultural Organization). 2016. “Reaching Out: Preventing and Addressing SOGIE-Related School Violence in Viet Nam, Volume 2.” UNESCO. https://unesdoc.unesco.org/ark:/48223/pf0000246928. UN Women (United Nations Entity for Gender Equality and the Empowerment of Women). 2021. “Country Gender Equality Profile: Viet Nam 2021.” UN Women, Hanoi. United Nations: “Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity”, 2018. https://digitallibrary.un.org/record/1639754?ln=en#record- files-collapse-header Van den Brink, M., and P. Dunne. 2018. “Trans and Intersex Equality Rights in Europe – A Comparative Analysis.” European Commission, Brussels. https://commission.europa.eu/ system/files/2018-11/trans_and_intersex_equality_rights.pdf. Vietnam, Law on Gender Equality, Law No. 73/2006/QH11, 2006. https://evaw-global- database.unwomen.org/-/media/files/un%20women/vaw/full%20text/asia/law%20 on%20gender%20equality%20-%202007/law%20on%20gender%20equality%20-%20 2007.pdf?vs=2102. Vietnam, The Constitution of the Socialist Republic of Vietnam, 1992, as amended in 2013, https://constitutions.unwomen.org/en/countries/asia/Vietnam. Vietnam: Positive step for transgender rights. Human Rights Watch. (2020, October 28). Retrieved December 21, 2022, from https://www.hrw.org/news/2015/11/30/vietnam- positive-step-transgender-rights Vu, Minh. “Vietnam Seeks International Experiences against LGBTI Discrimination.” Hanoi Times, May 28, 2022. https://hanoitimes.vn/vietnam-seeks-intl-experiences-against- lgbti-discrimination-320886.html. Vu, Minh. “International Experts Contribute to Vietnam’s Gender Affirmation Law.” Hanoi Times, 27 Aug. 2022, https://hanoitimes.vn/intl-experts-contribute-to-vietnams-gender- affirmation-law-321628.html. Wilson, Tom, J. Temple, A. Lyons, and F. L. Shalley. 2020. “What Is the Size of Australia’s Sexual Minority Population?” BMC Research Notes 13 (535). References 41 Wilson, Tom, J. Temple, and A. Lyons. 2021. “Projecting the Sexual Minority Population.” Demographic Research 45: 361–96. Wodon, Q. T., and B. de la Brière. 2018. “Unrealized Potential: The High Cost of Gender Inequality in Earnings.” The Cost of Gender Inequality Notes Series, World Bank, Washington, DC. Woetzel, J., A. Madgavkar, K. Sneader, O. Tonby, D.-Y. Lin, J. Lydon, S. Sha, et al. 2018. “The Power of Parity: Advancing Women’s Equality in Asia Pacific.” McKinsey & Company. World Bank. 2012. World Development Report: Gender Equality and Development. Washington DC: World Bank. World Bank. 2013. Inclusion Matters: The Foundation for Shared Prosperity. Washington, DC: World Bank. World Bank. 2021. “Vietnam: AU$740,000-Grant to Close Gender Data Gaps.” Press Release, March 26, 2021. https://www.worldbank.org/en/news/press-release/2021/03/26/vietnam- aud-740-000-grant-to-close-gender-data-gaps. World Bank. 2022. Women, Business and the Law 2022. Washington, DC: World Bank. World Bank Group. 2015. “World Bank Group Gender Strategy 2016–23: Gender Equality, Poverty Reduction, and Inclusive Growth.” World Bank, Washington, DC. World Bank Group. 2018a. “Economic Inclusion of LGBTI Groups in Thailand.” World Bank, Washington, DC. World Bank Group. 2018b. “Life on the Margins: Survey Results of the Experiences of LGBTI People in Southeastern Europe.” World Bank, Washington, DC. World Bank Group. 2019a. “A Comparative Analysis of the Socioeconomic Dimensions of LGBTI Exclusion in Serbia.” World Bank, Washington, DC. World Bank Group. 2019b. “How to Design the Vietnam Labor Code to Improve Gender Equality. “Australia–World Bank Group Strategic Partnership in Vietnam Gender Theme Note, World Bank, Hanoi. https://openknowledge.worldbank.org/bitstream/ handle/10986/31771/How-to-Design-the-Vietnam-Labor-Code-to-Improve-Gender- Equality.pdf?sequence=1&isAllowed=y. Gender Inclusive Legislation in Vietnam 42 How to Design a Gender Equality Law Inclusive of Sexual and Gender Minorities With support from: 8 Dao Tan Street, Ba Dinh District, Hanoi, Vietnam Telephone: +84 24 37740100 Facsimile: +84 24 37740111 Website: www.dfat.gov.au 8th Floor, 63 Ly Thai To Street, Hoan Kiem District, Hanoi, Vietnam Telephone: +84 24 39346600 Facsimile: +84 24 39346597 Website: www.worldbank.org/en/country/vietnam