Despite Tran’s findings in the Hong Duc compendium, many claim that there are currently no laws against homosexuality in Vietnam, or in earlier periods of Vietnam’s history. This assertion has been made by researchers in Vietnam (Khuat et al. 2009), Anglophone researchers (Pastoetter 2001), international legal and human rights organisations (AsylumLaw 2009; ILGA 2012; IGLHRC 2012), gay tourism websites (UtopiaAsia 2013; Vietnam-Gay 2013), and a plethora of Vietnamese and English language news media online and in print. There are no laws against sodomy in the current Vietnamese civil code, but there are a number of discriminatory regulations against homosexual lifestyles and transgenderism, which are articulated in various proclamations, or indirectly enforced through nationalistic campaigns on proper citizenship. Any present consideration about the Vietnamese State’s treatment of homosexuality must be contextualised within this legal environment.
Perhaps the most prominent contemporary legal issue with respect to sexuality concerns same-sex marriage. The most recent Vietnamese Marriage and Family Law states that ‘marriage is forbidden’ in five circumstances, including ‘between people of the same sex’ (Article 10, No. 22/2000/QH10 2000): Sensational news stories that Vietnam might legalise same-sex marriage somewhat misinform readers about the Vietnamese legal treatment of homosexuality and campaigns for reform. Headlines project an image of improving human rights in Vietnam, with potentially significant implications for foreign investment, international diplomacy, and LGBT human rights advocacy (Newton 2012: 12—14, 369—73). Other Vietnamese-language news articles report that VNGOs proposed that the Vietnamese National Assembly consider a 2013 proposition that would allow two non-related adults to legally register their co-habitation, which also entails shared medical and financial responsibility over one another (see Dieu 2012; Tru’o’c 2012). Full marriage equality is not the immediate goal of these 2013 campaigns. VNGOs and other gay and les activists carefully tread a line of non-confrontation with the Vietnamese State through proposing an amendment that does not contradict the existing prohibition of same-sex marriage. In the broader context of Vietnamese gender and sexual rights, it was only in 2007 that VNGOs and women’s rights advocates won a 10-year long battle to criminalise marital rape (Resolution No. 51/2001/QH10). Although the Vietnamese government does not yet recognise same-sex marriages, Resolution No 110/2013/110/2013/N&272;-CP on 12 November 2013 removed the provision in the Marriage and Family Law that explicitly prohibited same-sex marriage (TienPhong Online 2013).
Transgendered persons do not fare well under the current Vietnamese civil code. Currently, transgender-identified individuals cannot legally change their sex on official paperwork, unless a medical doctor identifies them as intersexed also. In 2008, Municipal Ordinance 158/2005/ ND-CP allowed intersex individuals to register sex changes, but only ‘in situations in which this person has a congenital defect which renders this person’s sex undeterminable, which requires the diagnosis of a medical expert’.
Transgendered persons, however, are not necessarily intersex. Contemporary transgenderism entails identification with a gender that does not coincide with one’s sex-differentiated body. This does not entail any biological ‘abnormalities’ of the sex organs or sex chromosomes, as is the case with intersex. Furthermore, the Vietnamese government goes so far as to exclude transgenders in such cultural practices as beauty pageants. Decision 87/2008/QD of the Ministry of Culture, Sports, and Tourism enacted on December 30, 2008 states that, ‘[t]ransgender people cannot compete in beauty pageants’. This level of regulation is significant for understanding the broader legal environment which determines whether new LGBT rights can be introduced in Vietnam.
The socialist Vietnamese state has regulated non-normative gender and sexuality indirectly through campaigns against social evils since the 1950s. ‘Social evils’ (te nan xa hot) is a loose legal category of social behaviour in Vietnam that has included homosexuality. The government controls representations of homosexuality in news media, which has been tightly controlled by the socialist and prior Vietnamese governments. Social evils were introduced to the Vietnamese civil code in Ho Chi Minh’s public declaration of the new Vietnamese constitution in 1953 (Decree 141/SL 1953). Social evils, however, are not defined explicitly, except that local authorities are empowered to act against social evils in society. Elsewhere, I have investigated the direct lineage between Vietnam’s framing of ‘social evils’ (te nan xa hot), the Republic of China’s ‘hooliganism’ (liumang), and the former Soviet Union’s ‘hooliganism” (khuliganstvo) (Newton 2012: 121—32). For all three socialist governments, social evils or hooliganism were catch-all descriptions for behaviours outside of social or legal norms, from premarital sex in the former Soviet Union to dancing in karaoke bars in contemporary Vietnam. It was not until 1994 that the Vietnamese government defined social evils as the unholy trinity of prostitution, drug use and gambling, specifically in response to anxieties around global capitalism and the world HIV/AIDS pandemic. After Vietnam instituted the 1986 do-i mdi policies of economic and administrative reform, police would raid bars or nightclubs in order to indirectly regulate homosexuality, in the name of ‘social indecency’ or ‘social evils’. Similar forms of local police regulation continue today. In 2009, the largest Vietnamese gay web forum hosted a drag contest in Saigon, which was raided and shut down by police, according to the founder of the web forum. This event was otherwise private, did not violate any legal restrictions of Vietnamese bar establishments, and was only publicised through the gay web forum.
The Vietnamese government currently oversees all local media and the reporting of social issues is often an indirect means of sociocultural control. Recently, there has been demonisation of ‘trendy les’ (les phong trdo) in the media, which is one way in which the Vietnamese government works out its anxieties over changing norms of gender and sexuality for modern women (Newton 2012: 111—73). ‘Trendy les’ are portrayed as gold-diggers, exploiting a supposedly fashionable youth trend of lesbianism so that they can engage in a hyper-consumer lifestyle and avoid heterosexual marriage, at the expense of their female sexual and romantic partner. One article’s title succinctly exemplifies the state’s social judgment and the moral dilemma concerning the existence of the ‘trendy les’: ‘Love women for love or for money?’ [Yeu les vi tinh hay tien?] (Yeu 2009). The media imaginary of the trendy les figure is one of feminine sexuality gone wild in hyper-consuming, non-reproductive, and reckless sexuality, with lesbians seen to be evading the responsibilities of proper and filial womanhood within a heteronormative family. Trendy les are portrayed as acting out their deviant homosexuality in bars, nightclubs, or karaoke bars, along with other characters in social evil campaigns including prostitutes, gamblers, and drug users. Homosexuality, HIV/AIDS, and Vietnamese social evils have a complex intertwined history, echoing the triangulated connections made between opium dens, pederasty, and syphilis in the French colonial period, as discussed below.