Contemporary Vietnamese vernacular terms for homosexuality (pe-de and dong tinh luyen ai) may have first emerged during French colonialism (1854—1954). Vietnamese same-sex homoerotic and socially sanctioned forms of gender transgression, however, have existed across multiple sectors of society, including in spiritual shamanism and in domestic histories of the legal treatment of sodomy dating back to the longest-ruling Le Dynasty (1428—1788). This complex history challenges the stability of gender itself in Vietnam, as well as homosexuality or transgenderism as subjectivities or ‘identities’ that are stable across time. Emerging scholarship challenges notions of ‘gender’ and sexuality in Vietnam, especially analysing the French colonial period when sexological terms such as ‘homosexual’ first appeared in Europe and North America (Proschan 2002; Tran 2011). This complex history of Vietnamese gender and sexual subjectivity must be considered in order to contextualise today’s political debates around LGBT human rights in Vietnam.
A spectrum of same-sex homoerotic behaviour and gender crossing existed in Vietnam’s highest courts. Vietnamese rulers kept men and sometimes pubescent boys as concubines in their palaces, as early as the sixteenth and seventeenth centuries, similar to such practices in Chinese imperial courts (Pastoetter 2001). The seventeenth and penultimate emperor of Vietnam, Khai Djnh (1916-25) is widely reported as a ‘homosexual’ (ngudi dong t(nh), consistent with formal terms for homosexuality, and a cross-dresser. Khai Dinh had twelve wives and concubines, legally marrying only two women, and fathering only one child with a concubine (Le 2012). Vietnamese news media sensationalise his life, stating, for example, that ‘[i]n his entire ten years as emperor, Khai Dinh never slept with any of his wives’ ([s]uot mu’o’i mm lam vua, Khai Dinh khong co an nam vo’i ba vo nao), instead favouring the nightly company of his male palace servant (vien thi ve), Nguyen Dac Vong (‘Chan doan benh’ 2011). In the digital library of the National University of Ho Chi Minh City, it states that Khai Djnh ‘wore eccentric clothing, different to the traditional garb worn by emperors. He wore golden traditional head wraps, wore hats, and wore women’s diamonds (an mac quan ao rat loe loet, khong tuan theo y phuc hoang bao truyen thong cm cac vua chua. Chit khan vang, doi non, deo hat xoan cm phu nb’)’ (Khai Djnh 2013). Emperor Khai Djnh presented a coherent and consistent gender and sexual subjectivity outside the norms of masculinity for men in French colonial Vietnam. Further research is necessary, though, in order to truly understand what contemporary analysts mean by ‘homosexual identity’ in Vietnam, prior to the proliferation of terms like homosexual (ngu’di dong tinh). It is unclear if words such as ngu’di dong tinh were used to describe Khai Dinh in his own time, before it first appeared in Dao Duy Anh’s comprehensive Vietnamese dictionary in 1936.
Nhung Tuyet Tran (2004), in her analysis of gender and society in the early modern Dai Viet period (1054-1804), details a handful of significant statutes peripherally related to gender crossing, alterations to genital or physical bodies in order to align with one’s self-expression of gender, and same-sex sexuality. In her study of Vietnamese, Chinese, and Han Viet (Sino- Vietnamese) written documents ofVietnamese legal histories during this period, Tran writes, ‘[t]he only statute that proscribed trans-gendered activity is article 305 of the Le Code, which prohibited commoner men from castrating themselves (tu yem) and punished those who violated the regulation with life in exile’ (2004: 137). The Le Code (1428-1788) instituted important differentiations between Vietnamese legal structures and the Chinese colonial T’ang Code. Scholars often use the Le Code as a litmus test for the parameters of Chinese cultural influence on Vietnam and Vietnamese colonial resistance. Vietnamese and Chinese eunuchs were castrated within the context of their servitude in imperial courts. Article 305 prohibits commoner men from accessing this stratum of society through self-mutilation. Article 640 of the Le Code also introduces a prohibition against ‘men who wear weird or sorceress garments’ (Nguyen and Ta 1987). The broader implication of these two Le Codes is that male-bodied commoners who wished to self-castrate to become women, not necessarily to become eunuchs, were subject to legal disciplining for the act of transgressing social status boundaries. This kind of gender crossing could be indirectly punished through this law in the name of maintaining a classed and imperial social order.
Tran also discusses perhaps the first Vietnamese law that regulates same-sex relations as a matter of contamination of the patrilineal rule of the family. The Book of Good Government of the Hong Duc Era (Hong Duc Thien Chinh) is a compendium of laws, proclamations, and edicts which outline Confucian expectations for Vietnamese personal conduct in the 1540s. One statute prohibits sexual relations between family members, which included household servants. Tran argues that ‘a close reading of the language used suggests that it proscribed a male servant from sodomising the son of a household’, a crime punishable by decapitation.
Adopted sons (nghia nam) and designated successors (tu nam) who fornicate (gian) with their adopted mothers [shall be punished] the same as (dong) male household servants [cu’ cong nhan] who fornicate (gian) with the son[s] of the head of the household (gia trudng nam). They shall be decapitated (tram) (Nguyen 1959: 63 [cited in Tran 2004: 138]).
Tran argues that ‘fornication’ (gian) specifically referred to anal or vaginal penetration within the context of a sexual hierarchy of domination and subordination. The penetration of the son of the head of the household was a kind of ‘violation of boundaries and the potential pollution of the agnatic line. … Having been penetrated by a person of mean social standing, the son of the head of the household could no longer play the role of a proper male, but was somehow rendered female and subordinate to the male servant’ (Tran 2004: 139). Thus, this Vietnamese provision against sodomy effectively punished the violation of patriarchal continuity and the classed social order, rather than the act of sodomy as a sexual act alone. Like many other statutes in the Hong Duc documents, it is unclear how widely this punishment was enforced. Outside of this statute, however, there are no other documented forms of direct legal intervention against male same-sex sexual activity in Vietnamese legal history.