Decree No. 88/2008/ND-CP On Determining Gender Again

 

DECREE

ON THE REDETERMINATION OF GENDER

THE GOVERNMENT

On the basis of Law on Government Organization dated December 25, 2001;
Pursuant to Article 36 of the Civil Code dated June 14, 2005;
Considering the proposal of the Minister of Health,

DECREE:

Chapter 1
GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

1. This Decree stipulates the procedures for redetermining gender for individuals with congenital gender defects or undetermined gender.

2. This Decree applies to organizations and individuals within the country; foreign organizations and individuals in Vietnam.

Article 2. Interpretation of Terms

In this Decree, the following terms are understood as follows:

1. Congenital gender defect refers to abnormalities in the reproductive organs of an individual from birth, manifesting in one of the forms such as pseudo-male female hermaphroditism, pseudo-female male hermaphroditism, or true hermaphroditism;

2. Undetermined gender refers to cases where it is impossible to distinguish whether an individual is male or female based on both reproductive organs and sex chromosomes;

3. SRY gene is the gene encoding the testis-determining factor located on the short arm of the Y chromosome, and if the test results are positive, it indicates the presence of the factor responsible for the development and formation of testes, which manifests as male characteristics.

Article 3. Principles for Redetermination of Gender

1. Ensuring that each person lives according to their true gender.

2. The redetermination of gender must be conducted on the principles of voluntariness, objectivity, honesty, scientific accuracy, and accountability under the law for having redetermined gender.

3. Maintaining confidentiality regarding information related to the individual whose gender has been redetermined, except when there is a document from a competent state agency requesting the provision of files for inspection, audit, investigation, prosecution, and trial related to the redetermination of gender.

Article 4. Prohibited Conduct

1. Implementing gender reassignment for those who have completed their gender development.

2. Conducting the redetermination of gender without the permission of the Ministry of Health or the Provincial Department of Health in accordance with Article 8 of this Decree.

3. Disclosing information about another person's gender redetermination.

4. Discriminating against individuals who have redetermined their gender.

Chapter II
HEALTH STANDARDS FOR REDETERMINATION OF GENDER

Article 5. Health Standards for Determining Congenital Gender Defects

1. Pseudo-male female hermaphroditism:

a) Reproductive organs have a small penis, palpable testicles may or may not be present, ultrasound or endoscopy shows testicles, no uterus or ovaries;

b) Sex chromosomes are XY or the SRY gene is positive or both conditions are present.

2. Pseudo-female male hermaphroditism:

a) Reproductive organs have a clitoris developed like a penis but no palpable testicles, ultrasound or endoscopy shows a uterus and ovaries, no testicles;

b) Sex chromosomes are XX.

3. True hermaphroditism:

a) Reproductive organs cannot be determined as male or female. Gonads contain both testicular and ovarian tissue;

b) Sex chromosomes can be one of the following types: XX/XY; XXX/XY; XX/XXXY or other chromosomal types identified as true hermaphroditism.

Article 6. Health Standards for Determining Undetermined Gender

Sex chromosomes may resemble the case of pseudo-male female hermaphroditism, pseudo-female male hermaphroditism, or true hermaphroditism, but reproductive organs are incompletely differentiated and cannot be accurately determined as male or female.

Chapter III
PROCEDURES FOR MEDICAL INTERVENTION TO REDETERMINE GENDER

Article 7. Documents and procedures for requesting reassignment of gender

1. The documents for requesting reassignment of gender include:

a) A request form for reassignment of gender according to the model prescribed by the Minister of Health. In cases where reassignment of gender is requested for individuals under 16 years old, their parents or guardians must submit the request form; in cases where reassignment of gender is requested for individuals aged 16 to under 18 years old, the request form must be signed by their parents or guardians.

b) A valid copy of the birth certificate, identity card, household registration book, or passport.

2. Procedures for requesting reassignment of gender:

a) The person requesting reassignment of gender submits the application documents to a healthcare facility permitted to provide medical intervention for reassignment of gender.

b) Upon receiving the documents, the healthcare facility must review and respond in writing to the applicant within 15 working days from the date of receipt of the application. If the request is not accepted, the reasons must be stated in writing.

Article 8. Conditions for healthcare facilities permitted to provide medical intervention for reassignment of gender

Healthcare facilities permitted to provide medical intervention for reassignment of gender must meet the following conditions:

1. They must have adequate physical infrastructure, medical equipment, and human resources as stipulated by the Minister of Health.

2. They must be reviewed and approved in writing by the Ministry of Health for healthcare facilities under its direct administration; and by the provincial or municipal Department of Health for healthcare facilities under the direct administration of the Department of Health and those of sectoral health and private health care within their jurisdiction.

Article 9. Clinical and paraclinical examinations and treatment for reassignment of gender

1. Based on the application documents for reassignment of gender, the healthcare facility organizes clinical and paraclinical examinations to determine gender reassignment:

a) Clinical examination:

- External appearance;

- External and internal genitalia;

- Psychological gender tests.

b) Para-clinical examination:

Depending on each specific case, specialized staff may order the following paraclinical examinations:

- Ultrasound, endoscopy, X-ray, CT scan, MRI;

- Hormone testing;

- Sex chromosome testing;

- Biopsy to determine whether the reproductive organs are testes or ovaries.

2. After obtaining the results of the clinical and paraclinical examinations, the healthcare facility must organize a consultation with the participation of specialized staff to make appropriate treatment recommendations for gender reassignment.

3. Treatment for reassignment of gender:

a) Based on the request of the individual seeking gender reassignment, the healthcare facility will select the gender to ensure suitable treatment methods that guarantee the best possible integration into social life in terms of mind, body, and society at that gender;

b) The healthcare facility determines the age of the individual requesting gender reassignment for surgery, ensuring it is at the earliest possible age;

c) The healthcare facility orders surgery and post-surgery hormone therapy.

Article 10. Medical certification after gender reassignment medical intervention

1. Medical examination and treatment facilities that have performed gender reassignment medical interventions shall issue a medical certificate after gender reassignment to individuals who have undergone such medical interventions.

2. The Minister of Health shall prescribe the format of the Medical Certificate for individuals who have had their gender reassigned.

Chapter IV
REGISTRATION OF HOUSEHOLD REGISTRATION AFTER GENDER REASSIGNMENT

Article 11. Basis for registering household registration after gender reassignment

The medical certificate prescribed in Clause 1 of Article 10 of this Decree shall serve as the basis for registering household registration for individuals who have had their gender reassigned.

Article 12. Issuance of Medical Certificates for individuals who have had gender reassignment abroad or before the effective date of this Decree

Individuals who have had gender reassignment abroad or in Vietnam before the effective date of this Decree, if they wish to register their household registration again, must have a confirmation from the previous medical examination and treatment facility regarding their gender reassignment, and then visit the medical examination and treatment facilities specified in Article 8 of this Decree for examination and issuance of a medical certificate.

Article 13. Responsibility for handling household registration for individuals who have had gender reassignment

The People's Committee of the district shall be responsible for handling the registration of household registration for individuals who have had gender reassignment in accordance with the laws on household registration.

Article 14. Competence and procedures for registering household registration for individuals who have had gender reassignment

The competence and procedures for registering household registration for individuals who have had gender reassignment shall be carried out in accordance with the laws on household registration.

Chapter V
IMPLEMENTING PROVISIONS

Article 15. Effective Date

This Decree shall take effect fifteen days after its publication in the Official Gazette.

Article 16. Responsibility for guiding implementation

1. The Minister of Health shall be responsible for issuing regulations on the conditions for medical examination and treatment facilities permitted to perform gender reassignment medical interventions, the application form for gender reassignment, and the format of the Medical Certificate for gender reassignment.

2. The Ministry of Justice, in coordination with the Ministry of Public Security and relevant agencies, shall be responsible for issuing guidance documents on the registration of household registration for individuals who have had gender reassignment.

Article 17. Responsibility for Implementation

Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees directly under the Central Government shall be responsible for implementing this Decree.