S377A has been repeatedly challenged as being unconstitutional. The challenges have been mostly on Article 12 of the Constitution of Singapore which guarantees all persons, equality before the law. S377A states, “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, shall be punished with imprisonment for a term which may extend to 2 years”.
The main argument cited for challenging S377A on constitutional grounds is that “it is absurd, irrational and discriminatory to criminalise a person on the basis of his natural, unchangeable identity and for non-harmful private acts”.
Here are some reasons I think that their argument is flawed and problematic.
S377A is not intended to target homosexuals
The objective of this legislation is to prohibit sexual acts between two males. Hence, any male person, regardless of his sexual orientation, who commits this sexual act, would be in violation of this law.
Some argue that since homosexual men would naturally perform these sexual acts in their relationships, this law targets them unfairly, and in that way, it is discriminatory. However, the law’s objective is to prevent acts that are detrimental to our community, so it is only coincidental that this happens to disadvantage homosexuals. If these sexual acts have negative impacts on the community, then there are good reasons for us to continue the prohibition of these sexual acts. That would mean that this law is not arbitrary, and not targeted at homosexuals.
In his 2020 judgement, Justice See Kee Oon affirmed the idea that S377A criminalises homosexual acts and not a person’s sexual orientation or identity in itself, saying, “Hence, sexual orientation per see, or whether the male person in question identities himself as bisexual, heterosexual, or homosexual, is completely irrelevant”, and that “a heterosexual male can equally be prosecuted under Section 377A if he commits such an offence.”
A Slippery Slope is Inevitable if 377A is Repealed on Constitutional Grounds
I also take issue that they claim their identity based on their sexual orientation. The argument tries to establish that the law unfairly targets a specific trait that is inherent in a homosexual, and that this trait is their sexual orientation. But, if the courts were to agree with this reasoning and repeal S377A on constitutional grounds, the same reasoning can on principle, be used to challenge any other laws that prohibit other sexual acts by claiming that their identity is based on their respective sexual preferences. The problem is that if sexual orientation is the basis for their argument for discrimination, giving credence to this argument will inevitably give credence to every other sexual preference. The slippery slope will be inevitable.
“Natural and Unchanging” Traits Aren’t Good Reasons for Excusing Harmful Behaviour
They also claim that their homosexuality is natural and unchanging, an assertion not borne out both scientifically and anecdotally. Nevertheless, this is their attempt to establish the case for their identity and the claim that they are discriminated against by S377A.
The first problem is that there is no objective reference to a person’s sexual orientation. On Planned Parenthood’s website, it says of sexual orientation, “Some people may try a label to see if it fits, and then change it to another one if it doesn’t… You don’t have to decide on one label, and it’s okay if someday in the future you feel differently from how you feel now”.
At the very least, this suggests that one’s sexual orientation is a self-adopted “label” and that arriving at a sexual orientation is a choice to decide on a label for one’s self. And even then, a person may not be certain of their sexual orientation and may change it as they see fit.
The second problem is that even if certain traits are inborn, not all inborn traits, eg. aggression and impulsivity, can be used to differentiate people in the eyes of the law. Whatever predisposition a person is born with, we still need to subject the person’s actions to an ethical framework for the good of the community. Hence, we should evaluate S377A not on how it is unfavourable to people with certain predispositions, but on how the law prohibits actions that are detrimental to the community for the good of the nation.
Comparing Homosexual and Heterosexual Sex is comparing Apples and Oranges
When they claim that S377A discriminates against homosexuals, this means that heterosexual couples have the privilege of having sex while homosexual couples do not. But this implies from the outset, that heterosexual sex is comparable to homosexual sex. They are not. They are very different activities.
Homosexual sex is unnatural because it defies natural law and biological complementarity. It seeks to artificially de-link the act of sex from its biological purpose: reproduction and propagation of the human species. Viewed from yet another angle, it is also unnatural because it is a misuse of the anus which was not meant to receive, but to excrete. This exposes men to many potential health risks and has a significantly higher chance of spreading diseases. Since S377A prohibits homosexual sex acts that are different from heterosexual sex acts, it cannot be said to have given unequal privileges to homosexuals over heterosexuals.
The argument that S377A discriminates against homosexuals attempts to redefine the markers for equality, basing it on a subjective differentiator and treating as equal two completely different sexual activities. If a challenge is successful, it provides a precedent to challenge the constitutionality of related laws and widens the markers for equality to include other sexual orientations. It is important for us to understand what it means to say that “all persons are equal before the law and entitled to the equal protection of the law”. It is not a basis for us to argue for the legalization for every inclination of the human heart, but a reminder for us that no one is above the law, and everyone should be treated equally in the area of justice, respect and dignity. Hence, it is important for us to keep S377A and maintain the rule of law that accords us equal protection as set out in article 12 of our constitution.
Terrence is a software architect and a father.
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