In Singapore, gay sex is still illegal as judge throws out Section 377A challenges
- The island nation’s top court has ruled that the colonial-era law criminalising sex between men is constitutional and will be retained
- Singapore is one of the few former British colonies still clinging to the legislation, with the likes of India having repealed it in 2018
One of the three activists, Bryan Choong, the former executive director of LGBTI non-profit organisation Oogachaga, had brought to light declassified British government archives that he said showed the law was meant to target rampant male prostitution during British colonial rule rather than to criminalise all consensual sex between men.
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The other plaintiffs – disc jockey and producer Johnson Ong Ming and retired general practitioner Roy Tan – said Section 377A was discriminatory by citing scientific evidence that homosexuals cannot wilfully change their sexual orientation or attraction, and argued that the enforcement of the law was arbitrary and inconsistent.
Lawyer M. Ravi, who represents Tan, told reporters outside the chambers that the judgment was “utterly shocking and astounding to the conscience”, adding that the court had upheld the same position as it had in previous cases.
He added that there was an “international momentum of striking out this archaic legislation”, with most commonwealth countries already doing so.
“Members of the gay community who don’t have a control over their sexuality … are going to be criminalised,” Ravi said, adding that his team would study the prospects of appealing the decision.
While Singapore no longer actively enforces the law, gay rights campaigners argue that its symbolism is socially corrosive, that it encourages discrimination and undermines the principle of equality.
All previous challenges against Section 377A have failed, including one by gay couple Lim Meng Suan and Kenneth Chee in 2012, which was dismissed on the grounds that the law was meant to preserve public morality and signify society’s disapproval of male homosexuality.
Authorities have long resisted calls to abandon the law altogether, with Singapore’s Prime Minister Lee Hsien Loong one occasion suggesting that he was “prepared to live with [the law] until social attitudes change” and that it would be better to “let the situation evolve gradually”.
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There was much public scrutiny of the three activists’ cases after Singapore’s former chief justice Chan Sek Keong in October described Section 377A as outdated and unconstitutional in a report published in the Singapore Academy of Law Journal.
Analysts had earlier said the three legal challenges would be seen as a litmus test for the government amid new studies suggesting younger Singaporeans’ attitudes to gay rights were liberalising.
In a summary of cases sent to media after the hearing, Justice See Kee Oon, who heard the case in November, gave a point-by-point rebuttal of the arguments raised by the three plaintiffs.
The judge said Section 377A was not targeted solely at male prostitution when it was enacted, adding that the law was intended to be of a “general application” aimed at male homosexual practices and to enforce a “stricter standard of societal morality” in 1938.
He also said Section 377A did not violate the right to freedom of expression, explaining that Article 14(1)(a) of Singapore’s Constitution related to the right to freedom of speech, which meant the “verbal communication of an idea, opinion or belief”.
In dismissing claims that a person’s sexual orientation was biologically determined, Justice See said scientific literature had suggested that sexual orientation was determined by both genetic and environmental factors. “The court is not the appropriate forum to seek a resolution of a scientific issue that remains controversial,” he said.
The government’s decision to not proactively enforce Section 377A did not mean that the law was absurd or arbitrary, the judge said. “Statutory provisions serve an important role in reflecting public sentiment and beliefs. Section 377A, in particular, serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts.”
In the document, he also said the High Court was bound by the reasoning and conclusions reached by the Court of Appeal – Singapore’s top court – in a 2014 case, “even after taking into account the additional material put forth by the plaintiffs”.
Choong, one of the plaintiffs, thanked his legal team and said: “My eye is firmly [fixed] on the road ahead. I’ll be studying this judgment closely with my lawyers.”
His lawyers have confirmed that he will be appealing Monday’s ruling.
Jean Chong, co-founder of LGBTI rights group Sayoni, was also saddened, saying how “times have changed” since the last challenge and pointing out that India repealed the law in 2018.
Responding to the Monday ruling, a spokesperson for Pink Dot, Singapore’s LGBTI movement, said that it was “deeply disappointed”.
“The court’s ruling effectively upholds, entrenches and continues the discrimination of a minority group. This undermines Singapore’s values of community, respect for the individual, and the very fabric of our multicultural and diverse nation,” he said.
“The colonial-era law, which criminalises consensual sex between men, has long been weaponised against sexual minorities. Through its trickle-down effects, Section 377A has been used to justify the discriminatory treatment of LGBTQ+ Singaporeans in areas such as housing and immigration.”
The Pink Dot event, which draws tens of thousands of supporters each year, has been cancelled this year due to the coronavirus outbreak.
