Still conservative, Singapore court rejects challenges to law criminalising sex between men

  • Singapore remains one of 70 countries, mostly in Africa and Asia, where sex between men remains a criminal offence.
  • Courts pass the ball to lawmakers to make decisions on public morality.
  • Courts made the decision four months after Section 377A, which criminalises acts of ‘gross indecency’ challenged in Singapore.

A Singapore law that criminalises sex between men will stay in the books, keeping the island-state as a member of a club that includes around 70 countries, mostly in Africa and Asia.

The Singapore High Court threw out on March 30 challenges by three individuals against Section 377A of the Penal Code that criminalises sex between consenting adult males. Section 377A criminalises any “act of gross indecency” between two men in public or in private, with a jail term of up to two years. This also extends to any man who abets, procures or attempts to procure such an act.

In a case summary, Justice See Kee Oon said Section 377A “serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts”.

Instead, he said that it was for Parliament, rather than the courts, to be responsible for the determination of public morality. 

He also pointed out that the law is still “important in reflecting public sentiment and beliefs.”

A study completed in 2019 by the Singapore’s Institute of Policy Studies (IPS) found that attitudes are changing in Singapore, but slowly. The IPS found that almost six in 10 people between 18 and 25 don’t think same-sex marriage is wrong while 60 percent of Singaporeans still oppose same sex marriage, down from 74 percent in 2013. Still, Singapore remains quite conservative and a majority of people oppose same sex marriage.

Singapore’s Attorney-General’s Chambers had maintained that Section 377A serves a “legitimate and reasonable” state interest, “regardless of whether and how it is enforced”.

The verdict came four months after three men mounted challenges against the legislation. The three men are disc jockey Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee and Bryan Choong Chee Hoong, the former executive director of LGBT non-profit NGO Oogachaga.

Each individual’s lawyers made a different argument.

Ong argued that the nature of sexual orientation was not a choice and, therefore, the law was discriminatory. Choong’s legal team argued that the original aim of the legislation was to address male prostitution by drawing on crime reports from 1937. Tan’s argument was that a requirement under the law that gay and bisexual men report their consensual private sexual acts to the police is “incongruous” with the current non-proactive enforcement of the law, because a failure to report would, in fact, “doubly criminalise” these men.

In his ruling, Justice See found that issues relating to how the law is enforced are distinct from issues relating to whether it is constitutional, maintaining that the law does not violate Singapore’s Constitution.

“It is regrettable that the Court today just ruled that 377A is not unconstitutional and that it is does not violate the equality provision of the constitution. This journey has been a long and arduous one that started way back in 2010 when the court recognised that parties affected by section 377A had a standing to challenge the legislation,” said M. Ravi, a prominent human rights activist and Tan’s legal representative, in a social media post. 

Benjamin Xue, co-founder of queer youth empowerment group Young OUT Here, expressed deep disappointment with the court ruling.

“Over the years, we have seen rejection and fear become the norm for LGBTQ+ youths in Singapore, hampering their opportunities to live out their authentic lives. The retention of 377A has stopped them from accessing vital health and social services out of fear of being found out by their friends, schools and families,” said Xue.

Xue believes this has been a cause of stress and anxiety for LGBTQ+ youths and driven them to explore their identities in an unsafe environment.

“Policymakers, it is time to listen to this and future generations of Singaporeans who are determined to make Singapore their home. It is time to make stand on the right side of history, make equality and inclusion for ALL, including the LGBTQ+ community, and #Repeal377A ,” said Xue.

The organizers of Pink Dot SG, an annual event aimed at promoting equality, also released a statement about the court’s decision.

“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,” read Pink Dot SG’s statement. “It has also rendered the community invisible in areas like the media, the workplace and education.”

Several key figures such as former Chief Justice Chan Sek Keong, former Attorney-Generals Walter Woon and V K Rajah, Deputy Attorney-General Hri Kumar Nair and former law professor and ambassador Tommy Koh have previously questioned the constitutionality of Section 377A.

“We have stood our ground that it is unconstitutional and a gross violation of one’s choice of sexual orientation/preference. Societal norms have changed with time and our voices have grown and so we will keep trying – the journey will not end, till section 377A is declared unconstitutional and abolished,” said M Ravi. “The fight continues…”

All three men have stated they will be appealing against the decision.