Being LGBTI in Viet Nam: Recognition and protection of rights United Nations Development Programme Being LGBTI in Viet Nam: Recognition and protection of rights Add photos? ©ICS

Main content Development context BLIA & Viet Nam Country Report 2013 Community Dialogue – Key findings 2016 Update “Is it because I am LGBT” Law and development Equity and Non-discrimination law Non-discrimination in the workplace – comparative laws Inclusion and protection in Viet Nam – ways forward Discrimination law model Law reform Non-legal remedies Human rights and development – complementary frameworks

Being LGBT in Asia Main objectives of “Being LGBT in Asia” (BLIA): Encourage networking between LBGT people cross the region Building a knowledge base and developing understanding of the capacity of LGBT organizations to engage in policy dialogue and community mobilization Promote a regional understanding of the context and outline steps toward LGBT inclusive development work Highlight the views generated by LGBT participants at the dialogue, connecting stakeholders working to enhance LGBT human rights across Asia

Community Dialogue in 2013 A participatory review and analysis of the legal and social environment for LGBT people and civil society in Viet Nam Took place in HCMC and Hanoi with 70 participants, June 2013 ©ICS ©ICS

Community Dialogue - discrimination in the workplace Stigma & discrimination are common at the workplace A lack of positive role models and images of individuals who are open SOGI at work – a reflection of a hostile and unfriendly environment A lack of activism to change discriminatory employment practices

Community Dialogue - other findings LGBTI experienced a harsh educational environment (physical violence, sexual harassment and verbal abuse) Lack of educational materials and resources on LGBT issues, and social and counseling services A lack of LGBT-friendly health care facilities and services, coupled with discriminatory attitudes and practices The media hostile toward LGBT people and their issues Despite the challenges, the LGBTI community has grown stronger over the years

2016 Update - discrimination in the workplace Study report “Is it because I am LGBT” with 2,363 respondents from 63 provinces Average 30% was denied of job application for being LGBT (59% trans persons; 19,6% bisexual persons) Prevalence and severity of employment discrimination to trans persons Average 40% encountered negative comments and foul acts Could be subject to discrimination within the community, e.g. at the workplace owned or dominated by LGBT people “It’s hard to get a job. We have to work as [a] sex worker, [do] makeup or sing in funerals.” (Blueprint for the provision of comprehensive care for trans people and trans communities in Asia and the Pacific, UNDP, 2015)

Equality & non-discrimination law – WHY? A key component of the constitutionalism and the rule of law, guarantee the rights and dignity of individuals An important contribution towards the integration of minorities to ensure social cohesion Ensure the stable integration of workers into the workplace and the optimal use of human skills, making a significant contribution towards human and economic development in emerging economies such as Viet Nam

Discrimination in the workplace – comparative laws Law on discrimination in the workplace - substantial impact on people 71 states (+2 Taiwan and Kosovo) offer protection to allow a basic independent income and the ability to flourish in their work 14 states have Constitutional provisions that specify sexual orientation in their discrimination protections (ILGA Report “State-sponsored homophobia”, 11th ed., 2016)

Inclusion and protection in Viet Nam 2013 Constitution, Art. 16 “No one shall be discriminated in his or her political, civic, economic, cultural and social life” In the 2nd UPR cycle in 2014, formally accepted the recommendation “to pass a law against discrimination, regardless of sexual orientation or gender identity of a person” one year left to live up to the commitment Existing legal regulation of non-discrimination Fragmented, confusing and ineffective Limited in scope and purpose Do not offer sufficient protection for vulnerable individuals and groups

Ways forward - discrimination law model Guiding principles: Stable legal rules as basis for social cohesion and economic development Modern rule-based economy that respects the rights of individuals Incremental or harmonized approaches Incremental approach allows a cautious pace of reform, however, can be inconsistent scope of protection to all groups, i.e. prohibit discrimination against women in employment but not LGBT may create resentment E.g. integrate inclusion and protection in amending the Labour Code Harmonized approach helps building solidarity amongst protected groups addressing overlaps where a person has suffers multiple discriminations (i.e. being a women and an EM) providing opportunity for ‘joint up policy design’ supported by a single equality commission

Ways forward - discrimination law reform Discrimination as a harm to individuals justifies a remedy Define discrimination – direct and indirect discrimination Who is protected? Existing omission is for LGBT –experience de factor prejudice and discrimination--in employment, education and access to health Scope of protection Main gap in the general coverage and regulation is in the provision of key private and public goods and services – should be an established area for protection Non-discrimination in the private goods and services is of particular significance – where prejudice can manifest discriminatory harm for vulnerable individuals (e.g. VietJet case) Remedies and enforcement Comparative laws: the use of civil law sanctions (e.g. financial damages) and penalties applied act both as a punishment and a deterrent Viet Nam system: supplement individual remedies with collective remedies supplement individual enforcement structure by creating a special equality commission A national equality commission vested with special investigative powers and positive action measures that are needed to combat discrimination effectively address institutional/structural discrimination and social exclusion; and its interface with civil society

Ways forward - non-legal remedies State organizations: maximize the use of contract compliance clauses with sub-contractors to promote equality Set target quotas for the employment of socially excluded groups or period equality reviews Private sector organizations: Be encouraged to develop voluntary equality benchmarks and use corporate social responsibility goals to promote equality & non-discrimination Promote LGBT-friendly culture in the workplace

Ways forward - human rights and development International human rights standards – The Yogyakarta Principles To protect people from violence and discrimination To protect freedom of expression, association and assembly and to take part in public affairs To recognize people’s self-defined gender identity, with no exclusions (incl. based on marriage or parenthood, forced to undergo medical procedures for legal recognition of their gender identity) increasing international recognition of the need to respect and protect the HRs of intersex people (incl. prohibiting medically unnecessary procedures on intersex children) Achieving the SDGs requires States to take actions to respect, protect and fulfill the human rights of all people, incl. LGBTI. GOV actions in the national action plans The role of community, CSOs, the private sector and other actors – essential for LGBTI inclusion Development of UNDP LGBTI inclusion index to measure aspects of economic, social and political exclusion Economic well-being, civic and political participation, personal security and violence, and health, +++ education

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