Legal Silence and the Concept of Law Regarding Gay People in Vietnam

Numerous people around the world are, due to their non-conforming sexuality, subject to quotidian social stigma and violence, often tolerated by state and non-state actors, who might find discrimination of this type explicitly anchored in legislative texts and thereby justifiable. However, legal ignorance might not be less detrimental to the lives of this vulnerable sexual minority. In Vietnam, same-sex sexual relations are believed to have never been criminalized; however, gay people could not be said to enjoy basic recognition guaranteed by the law. This paper would seek to highlight the legal silence concerning the position of gay people in Vietnam, focusing on their quasi-absolute absence from consideration in constitutional and legislative texts and the dominant use of a heterosexist language in the legal sphere, placing such individuals in the invisible space of the law, whether it is about marriage or any other rights. Furthermore, the present article would argue that the legal lacuna might be attributable to Vietnam’s current hybrid legal approach to the matter in question owing to its long-standing preference for non-legal norms over juridical means in the regulation of social matters and its recent selective adoption of Western equality-based legal values. While the latter is a recent phenomenon, the former has been present for centuries, identifiable with the absence of explicit condemnation of non-normative sexualities in the Confucian, colonial French, and localised communist legal traditions. Consequently, although granted some recognition in the last decade, gay people in Vietnam are mostly left out of legal considerations, not to speak of protection, leaving them vulnerable to social instability, discrimination, and even hatred-motivated violence.