There are some terms in the Draft of Law on Detention and Imprisonment about segregating Homosexuals and transgenders of Ministry of Public Security that need further clarification, especially in terminology, facts as well as international experiences. The following discussions will clarify contents of the drafts and noteworthy principles of detention, imprisonment of homosexual and transgenders also.

Lan Anh, a transgirl, has been detained with other 2600 males since 2010
Lan Anh, a transgirl, has been detained with other 2600 males since 2010

Original draft of Law on Detention and Imprisonment (Aug, 2014):
Article 23, Term 4, Imprisonment and Detention regimes:
Act of imprisonment homosexual people performs in the following steps:
a) Applicable to detainees whose sexes are unidentified, including innate defect ones; partly or fully transformed ones, the Chief Officer of Detainer House should propose Investigation Agency that handles the case together with authorized Medical Agency to conduct sex determination for imprisonment classification;
b) During waiting for sex determination procedures, those mentioned detainees should be detained separately. After receiving certificate of sex determination from authorized Medical Agency, those detainees should be imprisoned according to their sexes;
c) Applicable to detainees who, through collected information, are confirmed to be homosexual or to behave homosexually that violate regulations, it depends on levels of violation to use disciplinary measures, also to detain those detainees in separate cells

Homosexual, transgender, undefined sexes?

It seems there are mistakes of drafts among those three terms, when they are put in section which is “act of imprisonment homosexual people”. Homosexual and transgender people biologically have clear sexes, which are not related to innate defections.

Partly or fully transsexual people are the same, it is extremely dangerous if a male-to-female transgenders is put into male zone (according to her sex on paper), but also dangerous if put a female-to-male transgenders into male zone (based on gender behavior). Generally imprisoning transgender people into male zone is very dangerous, since men often have more chances to be violent toward other minorities.

Hence, this article should be rename to “Act of imprisonment people with unidentified sex”, and the terms right under the title should be done the same.

Transgenders: Separate or common imprisonment, if common then with whom?

Many places worldwide establish prisons or detainer cells for transgender people, dividing into male transgenders and female transgenders. This is the best solution for imprisonment/detainment transgender people. In case of facilities which do not meet requirements, it is themselves to give their own opinions, if they want to be put into a separate zone, or to have common imprisonment based on true gender of their body.

In detention places or prisons, partly transsexual people may be put into separate zones to avoid violation or abuse from both sides. (For example: people having both breasts and testicles can be violated by other male prisoners, also by female prisoners in order to impregnate to reduce sentence).

Hence, another term should be petitioned: “Act of imprisonment transgender people”: a) For transgender detainees who had surgery, it should be based on their own desire and conditions of imprisonment or detention places to decide whether they would be imprisoned separately or in a specific way depending on their practical sexes. b) For transgender people who had partly surgery or no surgery with gender expression different from their gender on paper, they should be organized to be imprisoned separately to avoid violation and abuse.

Homosexuals: protection or punishment, if protect then protect whom?

Point c, which is related to homosexuals, has many issues to discuss. In fact, homosexuality is a sentimental tendency, not just only sexual behavior. Since it is sentimental, there is no measurement for it. If “homosexual behavior” implies behaviors and gestures then it does not violate regulations at all.

Homosexual people often have inner issues because their gender expressions are mostly like which of their innate sexes. When being imprisoned or detained, homosexual people often consider coming out of the closet even though it was easy to come out before.

The draft seems to regard to protection plan for “others”, and consider homosexual people to be the ones to prevent from violating others. People often believe that homosexual people who stay with heterosexual people have more possibilities to sexually violate heterosexual ones. This way of regulating give us feeling that separate imprisonment of homosexual people is a discipline measure, not a protective one. In fact, homosexual people are the one to be sexually violated.

Hence, this point c should be removed.

According to a survey of iSEE in 2014 on 219 transgender people in Vietnam, 42.9% of transgender women used to experience imprisoning/holding with males, more than a third of them had surgery of at least an organ in their body. When they were asked, 58% wanted to have separate zones, and 38% preferred staying in female zones. 
For two cases of female-to-male transgender people who used to be jailed, one with genital was put in separate zone and one was put in female zone. 72.4% of female-to-male transgender people vote for separate zones, 15.9% for female zones and only 11.7% for male zones. The common tendency of transgender men and women, whether performed surgery or not, is that they wanted to stay in separate zones and not to be imprisoned in male zones, since it is most likely to be violated or abused. 
Homosexual and transgender people in detainer environment are the most vulnerable target group to face sexual offence. There is a case that a male-to-female transgender person was raped and infected with HIV from a heterosexual prisoner. Female-to-male transgender people when staying with male prisoners are often harassed by warders more frequently than by other female prisoners. The statistics of California, U.S. showed that 67% of homosexual and transgender people in jails used to be sexually violated, making them the most vulnerable group in prisons.