LEGALISATION OF SAMESEX MARRIAGE: A GLOBAL PERSPECTIVE International Conference Proceedings
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LEGALISATION
OF SAME-SEX MARRIAGE
A GLOBAL PERSPECTIVE
International Conference Proceedings
SOCIAL SCIENCES PUBLISHING HOUSE
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
International Conference Proceedings
LEGALISATION OF SAME-SEX MARRIAGE:
A GLOBAL PERSPECTIVE
International Conference Proceedings
Jointly organised by:
Asian Law Centre, Melbourne Law School
School of Law, Vietnam National University, Hanoi
The iSEE Institute, Vietnam
Hanoi, 7-8 December, 2021
NHÀ XUẤT BẢN KHOA HỌC XÃ HỘI
HANOI, 2022
Editorial Board/Ban biên tập bản thảo
Sarah Biddulph - Kathryn Taylor - Sébastien Lafrance
Nguyễn Thị Quế Anh - Vũ Công Giao - Lương Thế Huy
- Ngơ Hồng Ngọc Hiệp - Vũ Thành Cự
Selection Committee/ Hội đồng thẩm định
Kathryn Taylor - Vũ Công Giao - Đặng Thùy Dương
The conference and the publication of the proceedings were made by Vietnam National
University School of Law, Institute for Studies of Society, Economy, and Environment (iSEE),
and Asian Law Centre, Melbourne Law School, University of Melbourne, with financial support
from United Nations Development Programme (UNDP) Vietnam and the Embassy of Canada to
Vietnam.
Hội thảo và việc xuất bản kỷ yếu này được thực hiện bởi Khoa Luật, Đại học Quốc gia Hà
Nội, Viện Nghiên cứu Xã hội, Kinh tế và Môi trường (iSEE) và Trung tâm Luật châu Á thuộc
Trường Luật, Đại học Melbourne, với sự hỗ trợ tài chính từ Chương trình phát triển Liên hợp quốc
(UNDP) và Đại sứ quán Canada tại Việt Nam.
TABLE OF CONTENTS
PREFACE.............................................................................................................................................................................. 7
UNDERSTANDING THE LGBT SUBCULTURE IN VIETNAM: TOWARD THEORY OF CULTURAL STUDIES
M.A Nguyen Minh Tri.................................................................................................................................................. 9
MARRIAGE OVERRULED? “CERTIFICATE OF NON-IMPEDIMENT”
AND IMPEDIMENT TO THE RIGHT TO SAME-SEX MARRIAGE
Ignatius Yordan Nugraha ........................................................................................................................................ 22
DOES THE POLISH CONSTITUTION DEFINE MARRIAGE ONLY AS A UNION BETWEEN A MAN AND A WOMAN,
OR IS ANOTHER INTERPRETATION POSSIBLE? POLEMIC WITH THE PREVIOUS JURISPRUDENCE
Anne Michalak......................................................................................................................................................... 39
MARRIAGE APOSTATES: WHY HETEROSEXUALS SEEK SAME-SEX REGISTERED PARTNERSHIPS
Nausica Palazzo........................................................................................................................................................ 53
SAME-SEX COHABITATION VIA THE COURT’S DECISION ON RESOLUTION OF CIVIL MATTERS
- A FIRST STEP ON THE PATH OF LEGALIZING SAME-SEX MARRIAGE IN VIET NAM
Nguyen Thi Xuan Mai, Tran Thien Trang, Ngo Thi Anh Van ...................................................................................... 115
THE STATUS OF MARRIAGE AS A SOURCE OF RECOGNITION
Mary Anne Case .................................................................................................................................................... 139
CONTEMPORARY TAIWANESE SOCIETY LGBT RIGHTS AND THE ROAD TO MARRIAGE EQUALITY
Doan Khoa............................................................................................................................................................. 194
A LEGAL APPROACH ON THE RECOGNITION OF SAME-SEX MARRIAGE IN TAIWAN
Hoang Thao Anh.................................................................................................................................................... 208
THE FUNDAMENTAL RIGHT TO MARRY IN INDIA: VIEWING SAME-SEX MARRIAGES THROUGH THE THE LENS
OF CONSTITUTIONAL MORALITY
Shruti Bedi ............................................................................................................................................................ 222
SAME-SEX RELATIONSHIPS AND MARRIAGE IN INDIA: THE PATH FORWARD
Saif Rasul Khan ..................................................................................................................................................... 241
LGBT+ RIGHTS CLAIMING FOR MARRIAGE EQUALITY AND THE POSSIBILITIES
OF TRANSFORMING INDIAN FAMILY LAW
Akshat Agarwal, LL.M. Candidate .......................................................................................................................... 249
LEGALIZATION OF SAME-SEX MARRIAGE IN CANADA: A SUCCESS STORY
Sébastien Lafrance................................................................................................................................................. 279
6
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
SAME-SEX MARRIAGE IN CHINA LAW
Pham Luong Khien ................................................................................................................................................ 289
MARRIAGE FOR INDONESIAN SAME-SEX COUPLES IN FRANCE
Dr. Wisnu Adihartono ............................................................................................................................................ 301
SAME-SEX MARRIAGE FROM THE PERSPECTIVE OF TRADITION, MORALITY, AND LAW IN VIETNAM
Hoang Thi Thu Thuy................................................................................................................................................ 314
FACTORS AFFECTING LEGALIZATION OF SAME-SEX MARRIAGE IN VIETNAM
LLM. Tran Thi Quyen .............................................................................................................................................. 320
THE ENSURING CONDITIONS OF LGBT RIGHT TO ADOPT IN VIETNAM:
INADEQUACIES AND RECOMMENDATIONS
Assoc. Prof. Dr. Nguyen Minh Tuan , Nguyen Thi Nhat Thao, Dang Thi Nhu Quynh,
Nguyen Thi Ngoc Anh, Nguyen Thi Tuoi, Nguyen Thi Huong ................................................................................... 333
SEARCHING FOR AN APPROPRIATE MODEL FOR THE LEGALIZATION OF SAME SEX COUPLES’ RELATIONSHIP
FROM PUBLIC ATTITUDES IN VIETNAM - AN EMPIRICAL ASSESSMENT
Nguyen Thuy Duong, Le Hoang Dieu Anh, Ho Bao Chau......................................................................................... 345
MARRIAGES OF TRANSGENDER PEOPLE IN VIETNAM
Nguyen Quynh Trang.............................................................................................................................................. 367
TRANSGENDER PEOPLE’S RIGHT TO MARRY IN VIETNAM AND OTHER COUNTRIES – LEGAL RECOGNITION
AND PRACTICAL PROBLEMS
Nguyen The Anh (Mr.) ........................................................................................................................................... 379
SURROGACY FOR SAME-SEX COUPLES - WHO ARE THE LEGAL PARENTS OF A SURROGATE CHILD?
Lai Thanh Long, Nguyen Thi Kim Cuc...................................................................................................................... 393
PROTECTING HUMAN RIGHTS TO ADOPTION OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE (LGBT) PRACTICE IN SOME ASIAN COUNTRIES AND VIETNAM
Mac Thi Hoai Thuong.............................................................................................................................................. 409
THỪA NHẬN XÃ HỘI ĐẾN TỪ CÔNG NHẬN HÔN NHÂN: THỰC TRẠNG PHÁP LÝ
Mary Anne Case, Vũ Thành Cự dịch......................................................................................................................... 422
QUYỀN CĂN BẢN ĐƯỢC KẾT HƠN Ở ẤN ĐỘ: NHÌN NHẬN HƠN NHÂN CÙNG GIỚI QUA LĂNG KÍNH ĐẠO ĐỨC HIẾN PHÁP
Shruti Bedi............................................................................................................................................................. 477
U CẦU QUYỀN BÌNH ĐẲNG HƠN NHÂN CỦA NGƯỜI LGBT+ VÀ KHẢ NĂNG THAY ĐỔI LUẬT GIA ĐÌNH ẤN ĐỘ
Akshat Agarwal, LL.M. .......................................................................................................................................... 498
HỢP PHÁP HĨA HƠN NHÂN CÙNG GIỚI Ở CANADA: MỘT CÂU CHUYỆN THÀNH CÔNG
Sébastien Lafrance................................................................................................................................................. 531
PREFACE
As of 2021, marriage between people of the same sex has been legally performed
in 29 countries. The Netherlands was the first country in the world to legalise samesex marriage exactly 20 years ago, with the most recent being Costa Rica in 2020.
No country has reversed a law allowing same-sex marriage, while support for samesex marriage has also increased. In 2019, Taiwan became the first government in
Asia to welcome legalisation on same-sex marriage. A Japanese court ruled that
the government’s failure to allow same-sex marriages is violating Article 14 of the
Constitution, which ensures the right to equality. Other countries in Asia, including
Thailand, have also been discussing the prospect of legalising same-sex marriage.
However, fighting for equality in marriage is nowhere near completion. Most
parts of Asia, Africa, and Latin America still have laws banning same-sex marriage,
with nearly 70 countries continuing to criminalise same-sex relations. The world is
polarised regarding LGBTIQ acceptance. The rise of nationalism, anti-globalisation
and undiscovered intersectional impacts of the pandemic on the marriage equality
movement have meant that opposition remains strong in many countries.
In that context, an online international conference titled “Legalisation of Samesex Marriage: A Global Perspective” will be co-hosted on 7-8 December 2021 by:
• School of Law, Vietnam National University Hanoi
• Asian Law Centre, Melbourne Law School, The University of Melbourne
• The iSEE Institute, Vietnam
The objectives of this conference were to provide an open forum for experts
from various countries to discuss theoretical and practical aspects of legalisation of
same-sex marriage in the world. Presentations and ideas discussed in the conference
mentioned diversified themes, such as: Legalisation of same-sex marriage in
countries; Effective legal frameworks for same-sex marriage; Social, economic and
cultural impacts of same-sex marriage after legalisation; Civil unions, registered
partnerships, domestic partnerships for same-sex couples; Adaption of non-binary,
non-heteronormative legislation; Marriages of transgender people; Adaption of nonbinary, non-heteronormative legislation; Joint adoption, single parent, same-sex
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
parenting, surrogacy; Transnational marriage involving same-sex unions; Raising
public awareness and social acceptance of same-sex marriage; The role of NGOs and
civil society in building community and advocating for marriage equality.
There are 22 papers included in this book of conference proceedings. School of
Law, Vietnam National University, Hanoi decides to publish the book to disseminate
foreign and domestic scholars’ expert research on same-sex marriage and to share
knowledge thereof in comparison and connection with other countries in the world.
On this occasion, School of Law, Vietnam National University, Hanoi acknowledges
the contribution of scholars attending the conference, the Asian Law Centre, Melbourne
Law School, and the iSEE Institute, Vietnam – our co-organizers with valuable
support. We would like to thank the Selection Committee, the Editorial Board, our
distinguished colleagues for their fruitful contribution: Dr. Mai Van Thang, Dr. Bui
Tien Dat, Dr. La Khanh Tung, Dr. Ngo Minh Huong, Dr. Nguyen Thuy Duong, as
well as Mr. Vu Thanh Cu and other volunteers for their effectively participating in the
course of technically editing the proceeding book.
Hanoi, March 2022
The School of Law, Vietnam National University, Hanoi
UNDERSTANDING THE LGBT SUBCULTURE IN VIETNAM:
TOWARD THEORY OF CULTURAL STUDIES
M.A Nguyen Minh Tri1
Abstract: In Vietnam, the gay, lesbian, bisexual & transgender/transsexual group - abbreviated as LGBT - is a social minority
group that receives little attention. However, in recent years, the LGBT community has been mentioned more and more in
social media, becoming the subject of surveys in several research programs and intervention projects of NGOs. However, for
the government, the research community, and even the LGBT group in Vietnam, the LGBT community has not been recognized
as a cultural entity, or a part of Vietnam’s culture. Are the issues of the LGBT community, in the opinion of cultural researchers
in Vietnam, too sensitive, or are cultural researchers rejecting the LGBT subculture as part of Vietnam’s diverse culture? In this
article, we will repeat a few cultural definitions and analyses to confirm that the LGBT community is a distinct cultural entity
that needs to be studied, and the LGBT subculture in Vietnam is part of Vietnamese culture. Moreover, we will research and
summarize the characteristics of the LGBT subculture in Vietnam from cultural studies.
Keywords: LGBT subculture, cultural studies, Vietnam.
RESEARCH BACKGROUND
Historically, the LGBT subculture has never been a cultural entity in Vietnam in the
view of the government, the media, and even the LGBT community. As a result, it has
never been considered a part of the Vietnamese culture. This has hindered the promotion
and protection of human rights in Vietnam for the LGBT community. Moreover, the
LGBT community has never been recognized for their contribution to the culture and
society of Vietnam. To date, the research and understanding of the LGBT community
from a cultural perspective is still relatively new, if not an unexplored area.
Many research topics and research surveys have mentioned the LGBT community
in Vietnam. For example, Transgender people in Vietnam - practical and legal issues
was published in 2012 in “Aspiration to be Yourself: Transgender People in Vietnam:
Realities and Legal Aspects”.2 This research mentioned transgender groups and their
Nguyen Tat Thanh University, Ho Chi Minh City, Vietnam, Email:
Quynh Phuong Pham, Quang Binh Le and Thanh Tu Mai, “Aspiration to Be Yourself: Transgender
People in Vietnam: Realities and Legal Aspects” (World Publishing House 2012).
1
2
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
problems, such as stigma and discrimination in families, schools or public spaces,
difficulties with job opportunities, health risks and legal issues. Another study, The
employment of transgender women - the reality and challenges from iSEE, focused on
transgender women. This study mentioned the difficulties that transgender people face
in terms of employment. “The work argues that the barriers to transgender women’s
employment opportunities are complex, reciprocal but mainly rooted in social stigma.”1
In addition, numerous research, literary and artistic works have been published,
as well as typical internet surveys. For example, the Institute for Studies of Society,
Economy and Environment (iSEE) published a case study on Stigma and discrimination
of health workers in providing medical services to men who have sex with men (MSM),
which studied some FHI referral medical facilities in Hanoi and Ho Chi Minh City.2
Another iSEE survey on A study of the socio-economic characteristics of MSM in
Vietnam presented the problems faced by men who have sex with men in Vietnam,
and suggested specific solutions.3 In addition, some literary works have vividly and
authentically brought audiences the emotions of LGBT people through literature, such
as Transgender (Chuyen gioi),5 Mom! I’m gay (Me oi! Con dong tinh),4 or Mom! I
need to become a girl (Me oi! Con phai la con gai).5
In addition to the text documents, there are also unique image documents, such
as the photo series Another Me (Mot toi khac),6 which dedicated more than 15 pages
of vivid pictures of the gay community and their lives. The Pink Choice photo series
by photographer Maika Elan also captured some of the casual daily activities of
homosexual people. The Moments in life (Khoanh khac cuoc doi)7 photo series by the
Center for Creative Initiatives in Health and Population (CCIHP) also depicted the
MSM community, taking pictures to talk about their lives with worries and pressures,
love and happiness.
The studies mentioned earlier, as well as surveys, pictures and literary works
Phuong An, “Talk about Transgender Employment” E-magazine Quality and Life (Vietnam, 22 July
2014) < />2
iSEE, “Stigma and Discrimination from Medical Staff in Providing Medical Services to MSM (Case
Study of Some FHI Referral Medical Facilities in Hanoi and Ho Chi Minh City)” (2011)
3
Cuong Q Nguyen, “A Study of the Socio-Economic Characteristics of MSM in Viet Nam” (iSEE 2009).
5
Ngoc Thach Pham, Transgender (Labour Publishing House 2016).
4
Ngoc Thach Pham, Mom! I’m a Gay (Labour Publishing House 2016).
5
Just Everlyn, Mom! I Need to Become a Girl (Walter Trook Publishing 1998).
6
iSEE, Another Me (Transportation Publishing House 2013).
7
CCIHP, “Moments in Life” < />1
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
11
only focused on researching and depicting a specific part of the LGBT peoples,
such as transgender people or MSM. The research also only presents basic scientific
knowledge in biology, health, economy, society, etc. Issues surrounding the LGBT
peoples have not been researched from the point of view of cultural studies. Are issues
of the LGBT group, in the opinion of cultural researchers in Vietnam, too sensitive?
Or is it because we do not yet consider this group of people a distinct cultural entity
or, in other words, a subculture within the whole culture of Vietnam? With the help
of previous research, I therefore want to confirm and clarify the essential, identifying
characteristics of the LGBT subculture in Vietnam from a cultural perspective.
Understanding LGBT
According to Queer Theory, people’s sexual identity is much more complicated
than dividing gender into male and female.1 Such division of essence into two extremes
represents a way of looking at it as the polaropposite of life’s inherent form. Regarding
sexual orientation, in work published in the late 1940s, Alfred Kinsey and colleagues
showed that sexual orientation could be divided into seven categories, from entirely
heterosexual to entirely homosexual, and bisexual are the midpoints.2 Furthermore,
many research documents from anthropology, culture, history, religion, politics, and
social activities show that gender pluralism is quite common in Southeast Asia.
Who are LGBT people? Biologically speaking, LGBT people have the same body
state as other human beings. However, to identify LGBT people with others, we need
to understand what human sexuality is. Human sexuality comprises four elements:
sexual biology, gender identity,3 sexual orientation4 and gender expression.
Of the four factors, biological sex is the one that cannot be changed because
it is a biologically determined factor. Biological sex is mainly associated with sex
chromosomes, hormones, and internal and externalorgans. Humans are usually born
intotwo distinct biological sexes, female and male, defined by the external genitalia:
clitoris/penis, testicles; and internal organs: ovaries/prostate. However, there are
exceptions. Some people, who have indistinct or both sexual organs, are called
intersex and are usually recommended to receive medical intervention to determine
Annamarie Jagose, Queer Theory: An Introduction (Melbourne University Press 1996).
Kinsey A.C, Pomeroy W.B and Martin C.E, “Sexual Behavior in the Human Male” (1949) 109 283. 12
Michael G. Peletz, Transgenderism and Gender Pluralism in Southeast Asia since Early Modern Times
(1st Edition, Routledge 2009) < />3
APA, “Answers to Your Question about Transgender People, Gender Identity, and Gender Expression”
(American Psychological Association, 2012) < />4
APA, “Sexual Orientation & Homosexuality” (American Psychological Association, 2008)
1
2
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
their biological sex. Although it is a natural factor that can be interfered with by
medicine, biological sex combined with other factors will more accurately determine
human sexuality.
Sexual orientation is another of the four factors that make up sexuality and is
defined as a sustained emotional and/or sexual attraction to others. From there, we
can distinguish three basic types of sexual orientation: heterosexual - people who are
attracted to the opposite sex; homosexual - someone who is attracted to people of the
same sex; bisexual - someone who is attracted to both sexes. Unlike sexual behavior,
sexual orientation includes personal feelings. Therefore, a person’s sexual behavior
may not reflect their sexual orientation.
Gender identity is the third factor in sexuality, expressed through the perception
of one’s gender as male or female. Gender identity does not necessarily coincide with
biological sex. Gender identity is also independent of sexual orientation, as gender
identity has to do with who a person thinks they are. In contrast, sexual orientation has
to do with to whom is a person attracted.
Gender expression is how a person unconsciously/consciously shows their
gender identity through their behavior, clothing, hairstyle, voice, or physical features.
However, in today’s society, gender expression goes beyond gender identity. It
gradually becomes a determining factor by personal preferences and trends of the
times. Hence, gender expression is not the decisive factor that defines who you are
and what your sexuality is.
The population of LGBT people in Vietnam
There is some difficulty in researching LGBT people because the specific LGBT
population in Vietnam is unknown. Vietnam has not conducted a nationwide survey on
the number, distribution, and characteristics of LGBT people. Therefore, it isn’t easy
to approach and research this group of people as a whole, instead, it is only possible
through representatives. For example, in Vietnam, a report published at the Scientific
and Technical Conference held by the Ho Chi Minh City Dermatology Hospital on
September 26, 2006, said there was no firm data on the number of gay men couples.
However, if we take the average rate that many scientists have agreed on, that of
3%,1 then the number of LGBT people in Vietnam can be estimated to be more than
2,900,000 people (according to the population of Vietnam in 2020, which was more
Dinh Luyen, “Scientific Report of the World Health Organization (WHO)” (Vietnam Law Online Newspaper,
11 May 2013) < />
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
13
than 97.5 million people)1.
Transgender people may not have had surgery, but if they understand their gender
identity differently from their sexual biology, they are transgender people. Of course,
they also have a tendency or wish to be transexual. However, this may not become
their reality.2 There has been no national census on transgender people in Vietnam.
Transgender people are classified into two groups: male to female (also known as
Trans Girl or Trans Women, or Male To Female - MTF) and female to male (also
known as Trans Guy, or Female To Male - FTM). The population of LGBT people is
a minority amongst Vietnamese people. However, whether the population is large or
small, the LGBT subculture must be understood and recognized.
CULTURE DEFINITION
To begin identifing the LGBT subculture, we should look at some perspectives
on the definition of culture. However, we should also point out that the definition of
culture has changed over time.
There are two types of definitions - descriptive definitions and featured definitions.
The illustrative description lists the elements of culture. For example, according to
E.B. Tylor (1871), culture consists of knowledge, belief, art, morals, law, custom, and
all other abilities and habits acquired by man as a member of society.3
In the featured definition, there are three major trends: The first tendency is
to see culture as specific outcomes (products). It can be values, traditions, ways of
life, standards, ideas, social institutions, symbols, signs, information created by a
community, designed surplus, and accumulation. The second tendency sees culture as a
process. It can be creative activities, technologies, processes, ways of existence, living
and development, adapting to the environment, and human behavior. Finally, the third
trend considers culture as relationships, structures between values, between people
and their fellow human beings and species. All these different definitional tendencies
have their logical nucleus. The difference between them is mainly because the authors
have emphasized one aspect or another of the concept. However, regardless of the
trend, all definitions of culture contain an ordinary meaning of people, recognizing
GSO, “Population, Labor and Employment in 2020” (General Statistics Office of Vietnam, 1 September
2021) < />2
Quynh Phuong Pham, Gay, Bisexual and Transgender People in Vietnam – A Review of Studies (Social
Science Publishing House 2013).
3
Tylor E.B., Primitive Culture, vol 2 (Cambridge University Press 2012).
1
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
and affirming the close relationship between culture and people.
Tran Ngoc Them also affirmed that culture and humans are two concepts that are
not separate.1 Culture has existed since people appeared. Humans are the creators of
culture. Throughout its formation and development, people have always been incessantly
creative to create cultural values. One of the cultural values created by people is people
themselves - people with culture. Humans create culture, and at the same time, people
are also products of culture. As a product of culture, man is a typical cultural carrier.
Material cultural values may be lost, but as long as people remain, culture will continue
to exist and develop. From this point of view, looking back at the biological identity of
LGBT people, it is clear that they are also complete human beings, a part of society.
Applying a simple inference, the LGBT group also has its own culture.
For a long time, culture in Vietnam was understood in a very narrow sense: the level
of civilization was rated from 1 to 12 on administrative documents. However, stopping
at this interpretation leads to a misunderstanding and forms the concept of people with
and without cultures. Cultured people (ie. people with culture) are often identified as
educated people. This incorrect understanding amongst Vietnamese people gradually
creates barriers and prejudices against people in the LGBT community. For example,
if LGBT people, especially transgender people, cannot afford to go to school, they will
be considered uncultured or countercultural. Moreover, culture is always associated
with a set of historical values inherited from generation to generation,2 limiting other
small subcultures that may be born later. Subcultures that are not in the same frame
of reference, or that have not been known historically, may quickly lead to cultural
frictions as they may be considered contrary to the central culture.
Anthropologists have developed many theories to analyze and explain ethnicity.
In the Euro-American anthropological tradition, cultural anthropologists in North
America and social anthropologists in the United Kingdom have developed significant
theories that explain culture and society, including ethnic themes. Prominent among
them are two opposing theoretical views. First, the academic view of cultural evolution3
holds that human culture in general and the culture of specific ethnic groups,
in particular, have developed from low to high along a single path. Since then,
anthropologists studying specific ethnic groups have often placed this ethnic culture
Ngoc Them Tran, Treatise on Culture: Social Science & Humanities Issues – Cultural Studies (Ho Chi
Minh City National University Publishing House 2013).
2
Ngoc Them Tran, Vietnamese Cultural Establishment (2nd Edition, Education Publishing House 1999).
3
“What Is Cultural Evolution” (Cultural Evolution Society, 2018) < />story/What_is_Cultural_Evolution>.
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
15
somewhere in the evolutionary framework from barbarian to barbarian or civilized.
For example, Morgan labels seven different stages of human culture: lower, middle,
and upper savagery; lower, middle, and upper barbarism; and civilization.1 Because
anthropologists in the late 19th century and early 20th century usually came from the
West, they used the values and cultural standards of their ethnic group to reflect and
analyze their subject’s research. As a result, it leads them to fall into ethnocentrism in
exploring the cultures of other ethnic groups, creating an unscientific perception that
some ethnic groups are superior to others is different.
The anthropologist Franz Boas, on the other hand, developed the theoretical view
of cultural relativism, arguing that there is no high culture or low culture, to reject the
cultural theory of evolution. Instead, each culture is formed from its geographical and
historical context. Cultural relativism is the ability to understand a culture on its own
terms and not to make judgments using the standards of one’s own culture. This goal is
to understand cultural practices that are not typically part of one’s own culture. Using
the perspective of cultural relativism leads to the view that no culture is superior to
another culture when respective systems of morality, law, politics, etc are compared.2
This concept argues that cultural norms and values derive their meaning within
a specific social context. This is also based on the idea that there is no absolute
standard of good or evil. Therefore every decision and judgment of right and wrong is
individually decided in each society. Cultural relativism also means that any opinion
on ethics is subject to each person’s perspective within their particular culture. Overall,
there is no right or wrong ethical system. A holistic understanding of the term cultural
relativism tries to promote the knowledge of cultural practices that are unfamiliar to
other cultures, such as eating insects, genocides, or genital mutilation.
Every society has its own unique cultures in which people will have different ideas of
moral codes. The diversity of these cultures cannot be said to be correct or incorrect. Every
society has independent standards of ethics within its community, and these standards are
culture-bound. Cultural Relativism has a perception in which the rightness or wrongness
of an action depends entirely within the bounds of the culture.
CHARACTERISTICS OF THE LGBT SUBCULTURE IN VIETNAM
The LGBT community has been a member of society for a long time in Vietnam.
However, in Vietnamese culture, there is limited recognition or reference to the
presence of LGBT people. Therefore, in the process of research and observation, we
Morgan Lewis H., Ancient Society (Harvard University Press 2013).
Philosophy Home, “Cultural Relativism: Truth Is Relative” (Philosophy Home, 2009)
1
2
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
see that cultural events and phenomena are sometimes minor, inconsistent, or not
universal for a group of LGBT people. In fact, those cultural events and phenomena
bring the representativeness and specificity of the LGBT subculture.
VietPride - The series of events
In June 1969, patrons and supporters of the Stonewall Inn in New York City staged
an uprising to resist police harassment and persecution that LGBT Americans were
commonly subjected to. This uprising marks the beginning of a movement to overturn
discriminatory laws and practices against LGBT Americans. Today, celebrations
include pride parades, picnics, parties, workshops, symposia, concerts, and LGBT
Pride Month events attract millions of participants worldwide. In addition, memorials
are held during this month for members of the community who have been lost to
hate crimes or HIV/AIDS. The purpose of the commemorative month is to recognize
LGBTQ individuals’ impact on history locally, nationally, and internationally.1
Accordingly, with its humanistic meaning, PRIDE has become a wave, constantly
spreading to every country. From a global activity, LGBT people in Vietnam, in
general, have turned it into a unique and meaningful one of their own. The Viet Pride
series of events - the most significant of the year for the LGBT community in Vietnam
- has celebrated sexual diversity, brought pride and cheer to the community, spread
the values of love, and the courage to live true to yourself. The Viet Pride series is
also an intercultural exchange between the significant global LGBT culture and the
Vietnamese LGBT subculture.
Initially, the Pride project implemented in Vietnam was initiated by a small
group of LGBT friends in the capital, Hanoi in 2011. It then spread to many people
in different provinces across the country. Ten regions participated in Viet Pride in
the first year, and now more than 30 provinces and cities have participated. In 2017,
the series of Viet Pride activities from North to South, took place from July 2017 to
the beginning of October 2017. It has once again affirmed the irreplaceable role of
Viet Pride for the LGBT community across the country. As a result, society is also
gradually transforming, smashing stereotypes about gay, transgender, and bisexual
people.2 Every year, the Viet Pride events have a different theme: Come out in 2012;
Strive with pride in 2013;3 Blossom your life in 2014; Spread my wings in 2015; Be
Youth.gov, “June Is LGBT Pride Month” (youth.gov) < /> An Nguyen, “Viet Pride - Connecting Thousands of Hearts” (Motthegioi.vn, 15 September 2017)
< />hanoigrapevine.com/2013/07/viet-pride-2013-strive-with-pride/>.
3
Goethe-Institut Hanoi, “Vietpride 2013 - Strive with Pride” (Hanoi Grapevine, 23 July 201AD)
1
2
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
17
yourself free to love in 2016; Seeds of equality in 2017; It’s our pride in 2018; Out and
proud in 2019; Light up the Pride in 2020; No matter what in 2021.1
Accordingly, manystraight people, parents, and friends of LGBT people held
hands and joined the Viet Pride parade to support the LGBT community. The journey
of the past ten years has brought Viet Pride beyond its initial limitations, bringing
about positive changes for the whole society, with a correct and positive view of gay,
transgender, and bisexual people. People have come closer together, and Viet Pride
has gradually become similar to the Tet holiday for LGBT people in Vietnam.
Lo to Show
Besides the Viet Pride cultural event, another activity can be considered a part
of life for LGBT people An activity mainly by transgender women, the Lo to Show
(similar to a bingo game) has gradually become a feature that everyone associates about
LGBT people. Lo to Show is a form of entertainment very familiar to the people of the
South in Vietnam. The bustling atmosphere in the theater troupes in the southwestern
towns, with traditional games, funny bingo papers, and colorfully dressed girls, has
become a typical memory - the feeling of holding the purchased tickets and anxiously
waiting for the girls to dial the numbers. Familiar songs that are “mixed” make it
interesting to find the numbers. Whoever has five numbers appearing on the same
row will be “Kinh”, which means bingo. Gifts are nothing big, just packets of instant
noodles, a few bags of MSG, but it’s still fun.2 In addition, the Lo To Troupe, a group
of LGBT people in provinces or cities, moves from one location to another. They set
up fairs with game booths and stages in empty spaces; they sing, dance, circus, and
do magic tricksat night to earn money. If the audiences do not play bingo or watch
the show, the LGBT people will continue to move. In 2014, Nguyen Thi Tham’s
feature-length documentary on this topic - Chuyen di cuoi cung cua chi Phung (The
Last Trip of Sister Phung) - was warmly received by domestic and foreign audiences
with haunting emotions. The Last Trip of Sister Phung is actual footage recorded by
director Tham who followed the Phung for many years. Although it is a documentary,
it attracted a lot of attention. A large audience of people bought tickets because it
showed a different perspective of people who use entertainment as their livelihood.
Director Huynh Tuan Anh then decided to make a movie Loto, inspired by this story.
Drag Queen
ICS, “VietPride” (ICS Center) < /> Phuc Du, “Lo to Show: Both Tragic and Floating” (Newspaper young intellectuals, 30 March 2017)
< />
1
2
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
Drag1 is the reception of an international artistic activity associated with the
transgender community. The phrase Drag-queen2 was first used around 1870 in
England to refer to male actors playing female roles, stemming from various theatrical
causes, including a shortage of female workers. Today, the term is generally used for
artists who dress up as women, not necessarily stage actors, singers, dancers, television
actors, comedians, or contestants of beauty contests. Lip-sync artists are also an iconic
art activity of the “Drag-queen” world.
Countries in Asia, especially Thailand, influenced drag queens in Vietnam.
Initially, the drags experimented with styles from Europe and America but they
gradually formed their own style, returning to the original inspiration of the Asian
Drag Queen. Lip-syncing performances, gorgeous costumes, and thick makeup are
the characteristics of Drag Queens. However, Vietnamese Drags often do not update
their trends. Instead, they only reference musical performances like Whitney Houston
and Celine Dion.
In Thailand, Drag Queen shows can be performed outside the stage. However, people
can only go outside to watch the show. In Vietnam, many performances occur during the
night. Although society has opened up to the LGBTQ+ community in recent years, they
are still not fully accepted. Therefore, the Drag Queen community needs a place where
they can be more open to society but not be afraid of being abused or unsafe.
Being subjected to disgusting glances, jokes, or even violent fights are typical for
gay and transgender people, especially when they show signs of being “deviant”. When
faced with such a situation, people often have two choices: Hide or live with it. This is
one of the reasons that the “drag queen” movement was born. These people did not try
to affirm their masculinity, but calmly turned their faces and covered themselves with
lipstick and silk. They live and work as true artists with the affirmation: “Feminine
does not mean weak and only men who are strong enough dare to show it”. “Drag
queen” is considered a highlight of the colorful nightlife of the LGBT community.
Not only are the men dressed in fancy clothes and lip-syncing the masterpieces of the
Divas, but they are also true artists who work hard every night for the audience.
Making money from art activities is the biggest challenge of the Drag Queen
community. However, as mentioned, perceptions are still skewed towards the
David A Gerstner, Routledge International Encyclopedia of Queer Culture (Routledge 2006).
Felix Rodriguez Gonzales, The Feminine Stereotype in Gay Characterization: A Look at English and
Spanish. (In María de Los Ángeles Gómez González; J. Lachlan Mackenzie; Elsa M. González Álvarez)
(John Benjamins Publishing Company 2008).
1
2
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
19
performance activities of the LGBT community. Continuously performing late at
night also adversely affects the artists’ health.
CONCLUSION
If talking about a culture in general, or a subculture in particular, there are many
things to mention, such as customs and habits, costume culture, food culture or
specific religious beliefs, etc. However, these aspects are often associated with the
culture of the entire ethnic group. With the LGBT group having a specificity related to
sexual orientation, as I shared above, their subculture identification is also somewhat
different. However, there are also identifiable aspects, such as festivals, cultural
events, cultural activities, livelihood methods, etc., and other identifiable factors such
as sexual culture and family culture, cultural behavior, etc., of LGBT people.
However, within the framework of this essay, I would like to present the typical
identifying factors of the LGBT group to show that this group of people is also eligible
to be considered a subculture, and needs to considered as a subculture. When we
identify LGBT people who have their own culture, who also have their own identity,
they may be taken out of the counterculture group. This is the reason that leads to
LGBT people being scorned, stigmatized, and overlooked in society. Up to now, the
Vietnamese people only take an interest in the issues of LGBT people, such as health
issues, social issues associated with social evils, social diseases, etc., generally only
the problems, not the positives. Agencies and organizations mainly support LGBT
people in human rights, law, media, health, etc. If we stop there, we can only solve
the cultural reality of LGBT people; we are not changing the mindset of Vietnamese
people. When the LGBT group is considered a cultural entity, they will be considered
as a community with distinct cultural characteristics, with its own cultural identity.
They will see the large, colorful culture that they can contribute to society. Identifying
the LGBT subculture will therefore create a premise not only for the study of LGBT
groups from a cultural perspective, but also for promoting the rights and presence of
LGBT people in Vietnamese society.
REFERENCES
1. A.C K, W.B P and C.E M, “Sexual Behavior in the Human Male” (1949) 109-283
2. An Nguyen, “Viet Pride - Connecting Thousands of Hearts” (Motthegioi.vn, 15
September 2017) < />3. APA, “Sexual Orientation & Homosexuality” (American Psychological Association,
2008) < />
20
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
4. ——, “Answers to Your Question about Transgender People, Gender Identity,
and Gender Expression” (American Psychological Association, 2012)
5. CCIHP, “Moments in Life” < />6. Dinh Luyen, “Scientific Report of the World Health Organization (WHO)”
(Vietnam Law Online Newspaper, 11 May 2013) < />nguoi-dong-tinh-ngong-tinquoc-hoi-168740.html>
7. E.B. T, Primitive Culture, vol 2 (Cambridge University Press 2012)
8. Everlyn J, Mom! I Need to Become a Girl (Walter Trook Publishing 1998)
9. G. Peletz M, Transgenderism and Gender Pluralism in Southeast Asia
since Early Modern Times (1st Edition, Routledge 2009)
10. Gerstner DA, Routledge International Encyclopedia of Queer Culture (Routledge
2006)
11. Goethe-Institut Hanoi, “Vietpride 2013 - Strive with Pride” (Hanoi Grapevine,
23 July 201AD) < />12. GSO, “Population, Labor and Employment in 2020” (General Statistics Office of
Vietnam, 1 September 2021) < />13. ICS, “VietPride” (ICS Center) />14. iSEE, “Stigma and Discrimination from Medical Staff in Providing Medical
Services to MSM (Case Study of Some FHI Referral Medical Facilities in Hanoi
and Ho Chi Minh City)” (2011) <t/nghiencuu>
15. ——, Another Me (Transportation Publishing House 2013)
16. Jagose A, Queer Theory: An Introduction (Melbourne University Press 1996)
17. Lewis H. M, Ancient Society (Harvard University Press 2013)
18. Nguyen CQ, “A Study of the Socio-Economic Characteristics of MSM in Viet
Nam” (iSEE 2009)
19. Pham NT, Mom! I’m a Gay (Labour Publishing House 2016)
20. ——, Transgender (Labour Publishing House 2016)
21. Pham QP, Gay, Bisexual and Transgender People in Vietnam - A Review of Studies
(Social Science Publishing House 2013)
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
21
22. Pham QP, Le QB and Mai TT, “Aspiration to Be Yourself: Transgender People in
Vietnam: Realities and Legal Aspects” (World Publishing House 2012)
23. Philosophy Home, “Cultural Relativism: Truth Is Relative” (Philosophy Home,
2009) < />24. Phuc Du, “Lo to Show: Both Tragic and Floating” (Newspaper young intellectuals,
30 March 2017) < />25. Phuong An, “Talk about Transgender Employment” E-magazine Quality and Life
(Vietnam, 22 July 2014) < />26. Rodriguez Gonzales F, The Feminine Stereotype in Gay Characterization: A Look
at English and Spanish. (In María de Los Ángeles Gómez González; J. Lachlan
Mackenzie; Elsa M. González Álvarez) (John Benjamins Publishing Company 2008)
27. Tran NT, Vietnamese Cultural Establishment (2nd Edition, Education Publishing
House 1999)
28. ——, Treatise on Culture: Social Science & Humanities Issues – Cultural Studies
(Ho Chi Minh City National University Publishing House 2013)
29. ——, “What I s Cultural Evolution” (Cultural Evolution S ociety, 2018),
30. Youth.gov, “June Is LGBT Pride Month” (youth.gov) < />
MARRIAGE OVERRULED? “CERTIFICATE OF NON-IMPEDIMENT”
AND IMPEDIMENT TO THE RIGHT TO SAME-SEX MARRIAGE
Ignatius Yordan Nugraha
The purpose of this article is to analyse the requirement to provide a certificate of non-impediment from the perspective of
international human rights law. This obligation is often imposed on LGBT non-nationals who wish to marry in a legalised
same-sex marriage. Authorities in countries without same-sex marriage have refused to issue this certificate because national
law only recognises marriage between a man and a woman. At the same time, excessive bureaucratism in the country that
requires the certificate means that LGBT non-nationals cannot enter into a same-sex marriage. In this article, I will argue that
both countries have violated the right to marry, the right to private and family life and the right to non-discrimination. I will
specifically analyse in abstracto the compatibility of the certificate of non-impediment with the International Covenant on
Civil and Political Rights and the European Convention on Human Rights.
INTRODUCTION
As of December 2021, same-sex marriage has been legalised in 30 countries, with
most concentrated in Western Europe, North America, South America and Oceania.
In an increasingly interconnected world, these states are now home to a plethora of
LGBT non-nationals. Many of them found the love of their life and subsequently
intended to enter into a same-sex marriage in their new home. There are also citizens
from states with same-sex marriage who found their partner abroad and subsequently
sought to found a family with them officially. Romantic daydreaming and planning,
however, soon turn into a bureaucratic quagmire, as LGBT non-nationals are often
asked to provide a “certificate of non-impediment’, “certificate of no impediment’,
“certificate of marital status” or “certificate of legal capacity to marry’. This document
is usually defined as a letter declaring that there is no impediment to marriage for the
person concerned under the law of the issuing state. This letter is particularly required
to prove that one is still unmarried, and thus it can be considered an instrument to
prevent bigamy.
As an illustration, imagine a homosexual man from Indonesia who has settled in
Germany. He wants to marry another man from Poland who is working in Heidelberg,
Germany, thanks to the freedom of movement within the European Union. In order
to marry in Germany, the Indonesian national would have to prepare many different
LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
23
documents. Most pertinent for the purpose of this paper is an Ehefähigkeitszeugnis
(literally means “certificate of marriage capacity’) issued by the competent authority
in Indonesia. The legal basis of this requirement is laid down under Section 1309 (1)
of the German Civil Code:
A person who, with regard to the requirements for entering into a marriage, is
subject to foreign law (…), should not enter into marriage before he has furnished a
certificate of the domestic authority of his home state that there does not impede the
marriage under the law of that state. A certificate of the domestic authority includes
a written confirmation issued by another office under a treaty entered into with the
home state of the person affected. The certificate becomes ineffective if the marriage
is not entered into within six months after it is issued; if the certificate states a shorter
validity period, the latter is conclusive.1
Because of the bureaucratic quagmire in Indonesia, it is usually not obvious for
many applicants to which authority they should turn. In the past, they would have
to obtain the certificate from the Office of Religious Affairs (if they are officially
registered as a Muslim) or the Civil Registry Office (if they are not a Muslim).
However, new regulations seem to indicate that they have to apply to the city or regency
administration. However, for the Indonesian national, it is practically impossible to
obtain this document. While usually not mentioned on the official website of city or
regency authorities,2 the bureaucrats in charge often ask the applicant to provide a
copy of the identity of the spouse, together with their picture. This requirement is
even explicitly mentioned on the website of the Consulate General of the Republic of
Indonesia in Frankfurt.3
Why would the requirement to show the spouse’s identity act as a hurdle to the
right to marry? Indonesia only recognizes marriage between a man and a woman as
defined under Article 1 of Law No. 1 of 1974 on Marriage.4 Furthermore, Article
2 of the same law stipulates that “a marriage is valid if it has been performed in
§ 1309 Abs. 1 BGB <www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p4771> accessed
23 November 2021.
2
See, for instance, “Persyaratan Surat Keterangan Belum Menikah” (Disdukcapil Kabupaten Sleman)
<web.archive.org/web/20180201100841/ > accessed 23 November 2021; “Surat Keterangan Belum Menikah”
(Disdukcapil Kota Pontianak) <online.disdukcapil.pontianakkota.go.id/pendaftaran/surat-keteranganbelum-menikah> accessed 23 November 2021.
3
“Surat Keterangan” (Konsulat Jenderal Republik Indonesia Frankfurt) < www.indonesia-frankfurt.de/
layanankonsuler/surat-keterangan/> accessed 23 November 2021.
4
Article 1 of Law No. 1 of 1974 on Marriage.
1
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LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE
accordance with the laws of the respective religious beliefs of the parties concerned.”1
Once the authorities realise that the Indonesian national was seeking to contract samesex marriage abroad, they would most likely reject the request to obtain a certificate
of non-impediment. Under Indonesian law, marriage is only valid between a man
and a woman. As commonly believed by many Indonesians, the authority could also
hold that “all religions prohibit homosexuality”,2 and thus the applicant’s intended
marriage would not be in line with Article 2 of Law No. 1 of 1974.
Meanwhile, the hypothetical Polish spouse is also facing an insurmountable headwind.
This difficulty is illustrated in the case of Szypuła and Others v Poland, which is yet to be
decided by the European Court of Human Rights (ECtHR) when this paper was written. In
that case, the Warsaw Civil Status Office refused to issue a certificate of non-impediment
because the issuance of this certificate was deemed to be contrary to Polish law, which
restricts marriage to a bond between a man and a woman.3
However, the issue of the certificate of non-impediment has not yet gained the
attention of existing human rights scholarship. This is despite the potential of this
document to negate the effective exercise of the right to marry LGBT non-nationals in
a country that has legalised same-sex marriage. Against this backdrop, the purpose of
this paper is to analyse the abstract certificate of non-impediment from the perspective
of international human rights law. For the analysis, I focus on two major human rights
instruments, namely the International Covenant on Civil and Political Rights (ICCPR)
and the European Convention on Human Rights (ECHR). The former is selected given
its global scope, whereas the latter is included since the communication of Szypuła
and Others v Poland has led to the publication of some legal analyses, which could
enrich the research on the compatibility of the certificate of non-impediment with
human rights.4 As for the scope of the states, I will include both states that impose
ibid. See also Letezia Tobing, “Hukum Perkawinan Sesama Jenis di Indonesia” (Hukumonline, 19
December 2012) <www.hukumonline.com/klinik/detail/ulasan/lt50c9f71e463aa/hukum-perkawinansesama-jenis> accessed 23 November 2021.
2
See, for instance, Ali Mansur, “ICMI: Kalau LGBT Itu HAM, Mengapa Semua Agama Melarangnya?”
(Republika, 22 January 2018) <www.republika.co.id/berita/p2xlek330/icmi-kalau-lgbt-itu-hammengapa-semuaagama-melarangnya> accessed 23 November 2021; Yose Rizal, “MUI : LGBT Tidak
Dibenarkan Semua Agama” (Antaranews, 9 May 2018) < />mui-lgbt-tidak-dibenarkan-semuaagama> accessed 23 November 2021.
3
Tomasz Szypuła v Poland, Jakub Urbanik and Jose Luis Alonso Rodriguez v Poland App nos 78030/14
and 23669/16 (ECtHR, 20 June 2020).
4
See, for instance, Claire Poppelwell-Scevak and Sarah Den Haese, “The Challenges of Saying “I Do” for
SameSex Couples: The Human Rights Centre Submits a Third Party Intervention in Transnational SameSex Marriage Case” (Strasbourg Observers, 20 November 2020)
1
