English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
As to the definition of ‘gender’ in Article 5(1) of the Law on Gender Equality, it is ambiguous
as compared to the definition in Note 2 of GR 25. The definition does not clearly state that
characteristics, positions and roles given to men and women are ‘socially constructed’, which
is precisely the defining attribute of ‘gender’ as opposed to ‘sex’. Gender is not ‘the characteristics,
positions and roles … in social relationships’, rather it is the ‘socially constructed’ characteristics,
positions and roles.
Recommendation: It is recommended that the definition of ‘gender’ in Article 5(1)
of the Law on Gender Equality be amended or clarified to reflect that gender is socially
constructed as follows: ‘Gender refers to socially constructed characteristics, positions
and roles given to a man or a woman on account of his/her sex.’ The definition
provided in Note 2 of GR 25 can also be used: ‘Gender is defined as social meanings
given to biological sex differences.’
Indicator 4
Do legal documents address the intersections of other grounds of
discrimination with gender discrimination (such as discrimination on
the basis of ethnicity, disability, age, sexual orientation)
In the general provisions that guarantee equality and non-discrimination, it can be seen
that many other grounds of discrimination, in addition to sex or gender, are recognized by
Vietnamese laws. These include nationality, social status/class/position, belief, religion, educational
level and occupation, and family background. This list is actually longer if it includes
legal documents on the elderly, 147 people with disabilities 148 and HIV/AIDS. 149 What is noticeable,
though, is that these grounds of discrimination are seen as separate from each other, and
they are not always analysed in an interconnected manner; for example, although it has provisions
on ethnic minority women or women in remote and mountainous regions, 150 the Law on
Gender Equality does not provide a mechanism or provisions on ways to address other forms
of disadvantage, in addition to gender, in a systematic and simultaneous manner.
It must be borne in mind that CEDAW’s core pillar of non-discrimination requires that
other grounds of discrimination must not be ignored. Rather, interventions must take into
account all forms of disadvantage to be able to address them appropriately. In many cases,
experiencing discrimination on two or three grounds aggravates or compounds experiencing
one form of discrimination. By recognizing more grounds of discrimination, analysis of disadvantage
becomes sharper and legal documents more appropriate to the real situation; for
example, by recognizing both gender and disability as grounds of discrimination, legal documents
are able to provide for appropriate interventions for women with disabilities.
Recommendation: It is suggested that the Law on Gender Equality be supplemented
to include a provision recognizing the interrelatedness of grounds of discrimination.
It is also suggested that the recognized grounds for discrimination also include
age, sexual orientation, disability, economic status, health status (which includes people
living with HIV/AIDS and STIs) and other status. A suggested text is: ‘Other grounds
77
147
Ordinance on Elderly People (No.23/2000/PL-UBTVQH10 of April 28, 2000) (Ordinance on Elderly People)
148
Ordinance of Disabled Persons (No. 06/ 1998 /PL-UBTVQH10 of July 30, 1998) (Ordinance on Disabled Persons)
149
Law on HIV/AIDS Prevention and Control (No. 64/2006/QH11 of June 29, 2006) (Law on HIV/AIDS)
150
Law on Gender Equality, Articles 7(5) and 17(3)
General undertakings to eliminate discrimination and ensure equality (Articles 1-3 of CEDAW)