Challenge to anti-gay Singapore law reaches High Court

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A legal challenge is under way that seeks to annul Singapore’s law against sexual relations between men, Section 377A of the country’s Penal Code. Below are excerpts of coverage by Fridae.Asia of today’s hearing in the case brought by gay couple Gary Lim and Kenneth Chee.

Arguing that section 377A is constitutional, the Attorney-General argues that the law applies to all men, not just self-identified gay men, who have sex with other men; the law “reflects public morality”; and “because there is a scientifically established difference between the public health risks associated with sex between men and sex between women.”

FOR THE PLAINTIFFS

The plaintiffs’ arguments included:

1. Article 12 of the Constitution covers protection against discrimination on the basis of sexual orientation.

2. S 377A is absurd, arbitrary and unreasonable since it criminalises identity of the person. Homosexuality or same-sex attractions are innate and immutable, and change comes at a great personal cost to the person.

3. S 377A is absurd, arbitrary and unreasonable since it is selectively and arbitarily enforced.

4. S 377A is absurd, arbitrary and unreasonable since it causes harm to gay/bisexual men.

a. Through limiting HIV/AIDS outreach. Since gay sex acts are illegal, it causes a lot of difficulty in the work of HIV/AIDS outreach organisations in reaching out to at-risk populations. It is particularly difficult to reach out to gay youth.

b. By causing psychological damage. By criminalising the very identity of the person, it devalues and degrades the person. Young gay/bisexual teens are especially vulnerable, as they are institutionally cut off from any support. Mr Bryan Choong [manager and counselor of Oogachaga, a gay and lesbian affirmative counseling agency in Singapore] has given his expert evidence on the matter.

c. Makes it difficult to approach law enforcement for protection and leaves them particularly vulnerable to blackmail. Men who have been raped, or those who are domestic violence victims, can never approach the police without worrying that they will be prosecuted.

FOR THE ATTORNEY-GENERAL

The Attorney-General argued that section 377A is constitutional as it is applies to all men, not just gay men, who have sex with other men.

“We have submitted that the differentiation in s 377A is simply between men and women. Section 377A does not apply specifically to men who identify as homosexual. It equally applies to those who identify as heterosexual or bisexual, so long as the relevant acts are committed.”

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Although the law “reflect(s) public morality”, lesbian sex is not criminalised so as to “strike a legitimate balance between the moral norms of the majority and the interests of homosexuals.” [Editor’s note: Outlawing male-male sex while allowing female-female sex is a compromise? ]

“In addition, the Attorney-General submits that s 377A has the clearly stated purpose of reflecting public morality. This is based on the fact that the majority of Singaporeans still find homosexual acts unacceptable, as reflected in Parliamentary debates. Although Parliament has chosen to retain the wording of s 377A which does not encompass homosexual acts between females, this decision strikes a legitimate balance between the moral norms of the majority and the interests of homosexuals. As the objective of s 377A to reflect public morality is still substantially advanced even with this differentiation, the differentiation is not of itself unconstitutional.”

The AG also argued that the Court should find section 377A constitutional under Article 12 of the Constitution because sex between men poses a substantially higher likelihood of transmission of sexually transmitted infections as compared to sex between women which has “much lower” risks.

ALSO

Friday.Asia also noted:

Justice Quentin Loh will hear a separate case filed by Tan Eng Hong who was initially charged under section 377A in 2010. His charge was later amended to section 294 (obscene act in public). His lawyer M Ravi had by then initiated a constitutional challenge to Section 377A of the Penal Code. In August 2012, Singapore’s Court of Appeal overturned an earlier decision by the High Court to rule that Tan and other gay men are affected by the law and therefore have a legitimate interest in pursuing the case in court.

For more information, read the full account in Fridae.Asia: Singapore High Court hears challenge of anti-gay sex law.