Why Wait to Repeal a Discriminatory Law?

Grace Poore
IGLHRC's Regional Program Coordinator for Asia and the Pacific Islands

The Singapore government loves to say that there's no discrimination against lesbian, gay, bisexual, and transgender (LGBT) people. I've heard two such declarations. In 2007, during a review by the United Nations Committee for the Elimination of Discrimination Against Women (CEDAW), the chair of the Singapore state delegation and Minister of State at the time, Ms. Yu-Foo Yee Shoon, told CEDAW, "Homosexuals in Singapore have the same rights for employment, housing and education as everyone else. As a whole there's no discrimination against homosexuals." At a subsequent CEDAW session in 2011, Singapore's Minister of State, Ms. Halimah Yacob, said, "I want to say categorically that there is no systematic policy of discrimination against LGBTs." In both instances the references were to all LGBT people, including gay men.

Singapore's sodomy law (Section 377A of the Penal Code) is now on trial, so to speak, for violating the rights of gay men and therefore contravening Article 12 of the Singapore Constitution, which guarantees that all Singaporeans are equal before the law and entitled to equal protection of the law. The case originated when a man named Tan Eng Hong was arrested in March 2010 for having sex with another man in a public toilet cubicle at a shopping mall. Both men were investigated, detained, and convicted under 377A, which criminalizes "any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person." In response to concerns raised by Singaporean LGBT-rights advocates, the Public Prosecutor dropped the charge under 377A and charged Tan with "obscene act in public" (Section 294). Tan and his partner pled guilty and were each fined 3,000 Singapore dollars. If 377A had been applied, they could have received a two-year prison term.

Section 377A was the subject of vociferous public and parliamentary debates in 2007, when Singapore's Parliament considered repealing two of the nation's morality laws: 377 and 377A. The first law criminalized heterosexual couples for "carnal intercourse against the order of nature" (which the courts interpreted to mean heterosexual anal or oral and/or bestial sex), and the second law criminalizes sex between men. Subsequently, the law applying to heterosexual and bestial sex was removed in October 2007, but 377A was retained. Prime Minister Lee Hsein Loong explained at the time that abolishing 377A would polarize the nation and "send the wrong signal" to Singapore society and "lead to other concessions like same sex marriage and parenting." However, the Prime Minister assured LGBT communities that 377A would not be "proactively enforced."

If a law is on the books, it is enforceable. If it's enforceable, it renders targeted persons vulnerable to police intimidation, arrest, discrimination, and societal homophobia. As long as 377A stays, Singapore's gay men are deprived of equal protection under the law. They are vulnerable to the changing winds of state benevolence, where the government arbitrarily decides if and when it wants to use 377A to arrest and convict. In fact, Tan's defense lawyer, M. Ravi, disputed the government's claim of not proactively enforcing 377A. During the High Court hearing he cited instances where police had threatened men in private settings for having gay sex.

Appeals Process Yields a Historic Result

M. Ravi first appealed Tan's conviction before the High Court on Sept. 24, 2010, arguing that 377A was unconstitutional because it singles out sexual relations between men for criminalization and violates gay men's constitutionally guaranteed equality. The High Court judge, Ms. Lai Siu Chiu, threw out the case on March 15, 2011, citing lack of legitimate legal grounds for bringing the appeal. The lawyers then went before the Court of Appeals, the highest court in the country.

On Aug. 21, 2012, the Court of Appeals overturned the High Court ruling. The judges wrote in their decision that 377A governs private consensual sex between adult males and affects a significant portion of Singapore society "in a very real and intimate way." They ruled that the constitutional challenge to 377A has legitimate legal grounds and that the High Court must hear the case.

377A Is Simply a Bad Law

Some have argued that 377A is discriminatory because it targets gay men but not lesbians. This is a slippery slope. Not being gender-neutral isn't the problem with 377A. The law does not apply to heterosexual men or heterosexual women, either, only to men who have sex with men, and it is therefore because of homophobia (not sexism) that it is discriminatory. It also has the impact of preventing men from reporting physical abuse, domestic violence, sexual assault, robbery if the perpetrator is a male sexual partner, or when blackmail for being gay and sexual coercion occur.

Most Singaporeans disapprove of people being violated for being gay even if they seem ambivalent about sexual diversity and rights for LGBT people. But most people do not understand that violation includes being criminalized for being gay and forced into the closet. Will the government of Singapore wait for the future of 377A and equality for LGBT people to play out in the courts before it decides to repeal 377A? If, as it claims, there is no discrimination against LGBT people, then why wait?