The prospects for the legalization of same sex marriages in vietnam
| Author | Trinh Thi Hong Nguyen,Luong Duc Doan |
| DOI | http://doi.org/10.1177/13582291221111290 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(4) 347–370
© The Author(s) 2022
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DOI: 10.1177/13582291221111290
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The prospects for the
legalization of same sex
marriages in vietnam
Trinh Thi Hong Nguyen, PhDand Luong Duc Doan, PhD
Abstract
This article discusses the various factors in Vietnam that are influencing the possibility of
introducing a law on same sex marriage and draws three main conclusions. Firstly, it
argues that the greatest concern about the possible success of the campaigns on lesbian,
gay, bisexual and transgender (LGBT) issues in general, and the recognition of same sex
marriages in particular, is indeed a political fear. It recommends keeping the campaigns on
LGBT issues separate from the political sphere and to differentiate themselves from the
traditional confrontational methods used by political dissidents. Secondly, the enactment
of a law on LGBT rights which incorporates the principles and rules of anti-discrimination
on the basis of sexual orientation and identity is proposed. This law will fill the gap left by
the current lack of an anti-discrimination law in the specificfield of LGBT rights in the first
step of a typical process towards the legalization of same sex marriages. Thirdly, the paper
highlights the leading role to be played by legislation in Vietnam, and which shall need to be
acquired though legal transplanting, in granting marital rights to same sex couples and
providing the basis for the courts to give them substantive rights.
Keywords
same sex marriage, legalization, LGBT law, anti-discrimination law, legal transplanting,
transnational norms, homophobia, vietnam, contents
Introduction
The estimated number of people aged between 15 and 19 who were lesbian, gay, bisexual
and transgender (LGBT) in Vietnam in 2017 was 1.6 million.
1
They suffer from physical
University of Law, Hue University, Hue, Vietnam
Corresponding author:
Trinh Nguyen, University of Law, Hue University, Vo Van Kiet Street, Hue City, Hue, Vietnam.
Email: nthtrinh@hueuni.edu.vn
and non-physical violence and societal and administrative discrimination which ranges
from refusal of blood donations for being identified as MSM
2
to being problematized by
officers in child adoption procedures,
3
and being ignored by the police when reporting
cases of discrimination.
4
The causes and reasons for such situations are many. The
conservative Vietnamese culture of heteronomy, ancestor worship and traditional gender
roles and expectations, to name a few aspects, have all contributed to the political, legal
and social exclusion of LGBT people.
With regard to same sex couples living together which now becomes a common reality
in Vietnam, their right to be legally married has been an increasing concern for the public
and the government’s law drafting and law enforcement agencies, such as the National
Assembly, Ministry of Justice and the Ministry of Health. Nevertheless, the research on
this topic in Vietnam has been very thin. There is only one prominent author, Truong
Hong Quang, who has written many articles in Vietnamese on LGBT rights,
5
including
their right to cohabit and right to marry.
6
These works have provided domestic readers
with a better understanding of many LGBT-related issues, such as the fact that their sexual
orientation is biologically determined and not a choice, or the difficulties that same sex
couples face in regards to their personal lives, property and other social security issues just
because their relationships are not recognized and protected in law. The previous research
has proposed that, in the short run, Vietnamese laws on marriage and the family should
provide a process of legalization for same sex couples by employing a method of
registering cohabitations or civil partnerships, which is a more feasible option than
marriage at this time.
More recently, there have been some preliminary research studies on the laws of some
countries that have allowed same sex marriages, such as in the EU countries, US and
Taiwan, and the legal form that they have provided, either ‘marriage’,‘civil union’or
‘registered cohabitation’, and thereby have proposed some implications for Vietnam. In
the meantime, empirical reports have been published by research institutes
7
which have
been informative about many aspects of the lives of LGBT people in Vietnam, including
the stigmas they face and their expectations for the laws of the country to change. These
studies have also revealed the degrees of the wider social attitudes towards LGBT people
and same sex marriage legalization.
8
Given this background, the article will examine the prospects for legislators in Vietnam
approving a law that will legalize same sex marriages in the future. With this aim in mind,
the various factors in the political, social and legal situation in Vietnam that may influence
the possibility of legalizing same sex marriages are analyzed. Before doing so, an
overview of the current legal contexts in Vietnam regarding same sex couples is provided.
A brief history of vietnamese laws on same sex relationships
Research material on the legal history of same sex marriages in Vietnam is very rare, and
usually it will only provide some primary or random information. In general, it can be said
that Vietnam has historically been tolerant of same sex relationships because, although the
law has never recognized them, neither have they been criminalized. The feudal gov-
ernment of the Le Dynasty
9
did not punish same sex relationships,
10
and the Nguyen
348 International Journal of Discrimination and the Law 22(4)
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