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From legal to real: Challenges in recognising LGBT marriages in Vietnam

“To realize a world of equality and dignity for all, we will have to change laws and policies; we will also have to change hearts and minds.”

According to the iSEE and VESS 2021 report, it is estimated that the number of LGBT people in Vietnam accounts for about 9 – 11 % of the total population – a community not too small compared to the population structure but is extremely disadvantaged under the lens of social prejudices. Although in recent years, people in the LGBT community are increasingly recognised as equal individuals, instead of a “disease” as before, this integration also encounters many obstacles, basically because their basic rights are still not clearly recognised, especially the right to marriage.

  1. How does Vietnamese law stipulate marriage for the LGBT community?
  2. Are same-sex marriages in Vietnam recognised?

In the Law on Marriage and Family in 2000, Clause 5, Article 10 stipulates cases where marriage between people of the same sex is prohibited and will be fined from 100,000 – 500,000 VND according to Point e, Clause 1, Article 8 of Decree 87/2001/ND-CP. However, in the current context of Vietnam, the amended Law on Marriage and Family in 2014 has removed the regulation “prohibiting marriage between people of the same sex” since January 1, 2015, and replaced it with Article 8, Clause 2: “The State does not recognize marriage between people of the same sex”. It could be seen as a milestone for Vietnam to recognise same-sex marriages in the future since it is not prohibited anymore.

  1. Can transgender people register for marriage?

After gender transformation, transgender people will have their personal rights changed to suit their new gender as stipulated in Article 37 of the 2015 Civil Code: “Gender transformation shall be carried out in accordance with the law. Individuals who have changed gender have the right and obligation to register for changes in civil status according to the provisions of the law on civil status; and have moral rights consistent with the gender that has been transformed according to the provisions of this Code and other relevant laws”. Therefore, if they meet the marriage registration conditions, transgender people have the full right to register for marriage.

II. Does the LGBT community face any obstacles to marriage in reality?

  1. What are the challenges for same-sex people to get married?

The State does not recognise this marital relationship instead of prohibiting it means that gay people can hold weddings and live together as husband and wife but are not allowed to carry out marriage registration procedures at a competent State agency. Additionally, there will be no legal constraints between people in a same-sex marriage, moreover, the property relations between them “during the marriage” are not protected by the law. Thus, if any property-based dispute arises between them, it will be resolved according to the Civil Code. Besides, from a legal perspective, if same-sex marriage is recognized, all relevant regulations in the legal system will have to be amended and supplemented, such as determining spousal relationships, property relationships, parent-child relationships, and so on.

  1. What about the challenges for transgender people?

Although the State allows transgender individuals the right to marry when eligible, they still face many barriers when registering for marriage because they still have to wait for the draft Gender Affirmation Law to be officially passed since the Civil Code stipulates that “Gender transformation shall be carried out in accordance with the law”. However, there are several argumentative points proposed in the draft Law such as citizens are required to perform medical intervention to change gender, which is believed to create huge financial and health obstacles, leading to a large number of transgender people still not being able to access the right to change gender. Moreover, the age limit for accessing hormone therapy is 16 and the age limit for changes in documents is 18, raising criticism that accepting 16-year-old children to use hormones but only changing the information on the documents until they are 18 years old also unintentionally creates a 2-year gap when there are differences between appearance and documents. Therefore, it appears that only when there is a specific legal corridor will LGBT people have the opportunity to be recognized by society more equally and enjoy their rights comprehensively. When legal barriers are removed, psychological barriers and prejudices will also gradually be eliminated.

Que Anh Mai International Studies, Hanoi University, Vietnam

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