377A: Policy Solutions for the “Best Way Forward”

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Section 377A of the Penal Code is Singapore’s hotly debated law which criminalises acts of “gross indecency” in “public or private” between males, on pain of imprisonment for up to 2 years. The law has been in place since 1938, when Singapore was still a British colony, and has been the subject of an impasse between differing social and moral perspectives in Singapore.

In 2007, following a heated debate, Parliament decided to retain the law for its “symbolic” value but without “proactive enforcement”. A 2022 apex court judgment has since made the law “unenforceable in its entirety” unless and until the Attorney-General clarifies his position on prosecution.

Chief Justice Sundaresh Menon insightfully pointed out in the apex court’s February 2022 judgment: “Section 377A has long been a lightning rod for polarisation, in large part because it raises a wider question, which admits of no ready answers, of how a State can best maintain harmony between different communities with deeply held, and sometimes conflicting, views on important issues of moral conscience.”

How can the government resolve the impasse on Section 377A?

Uncovering the Underlying Interests

In our view, the underlying interests surrounding debates over Section 377A can be understood by asking and answering three different but interrelated questions:

  1. Criminalisation: Should male-male consensual homosexual acts be the subject of criminal enforcement and penalties (i.e. imprisonment)?
  2. Positive Values: What attitudes towards marriage, family and sexuality ought to be reflected in Singapore’s law and policies?
  3. Posture: What should the Government’s attitude be towards LGBTQ+ (lesbian, gay, bisexual, transgender, queer, etc.) activism?

The answer to the first question is surprisingly simple, since there do not appear to be significant demands for enforcement of Section 377A and its criminal penalties. Indeed, in a 2018 pastoral letter, Archbishop (and soon-to-be Cardinal) William Goh told his flock that he would not object to a repeal of the law “if it were merely aimed at removing all potential criminal penalties against homosexuals”.

Other groups which favour retaining the law, such as the National Council of Churches of Singapore (NCCS), the Singapore Islamic Scholars and Religious Teachers Association (Pergas), and the Alliance of Pentecostal and Charismatic Churches of Singapore have focused instead on the latter two questions. These positions give credence to Minister Shanmugam’s observation that “Their concern is not [Section 377A] per se, but the broader issues of marriage and family.”

Beyond the deceptively simple question of enforcement and criminalisation, lie deeper debates about – in the words of Associate Professor Eugene Tan – “fundamentally different, perhaps irreconcilable, notions of sex, marriage, parenting and family”.

Both sides of the debate tend to be clear about the message sent by Section 377A and its wider legal, political, and societal impact on such matters, even as they disagree about whether the message and impact are good or bad.

Thus, in relation to the second question above – What attitudes towards marriage, family and sexuality ought to be reflected in Singapore’s law and policies? – advocates who favour same-sex unions and parenthood have argued that Section 377A “continues to define the difference between conventional and unconventional family units”, which they argue is discriminatory. Leading LGBTQ+ organisation Pink Dot stated: “Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life: at home, in schools, in the workplace, in our media, and even access to vital services like healthcare.” On the other hand, religious groups such as Christians and Muslims agree that the family unit should continue to be grounded in a heterosexual marriage where children are raised by a father and a mother. Likewise, Pergas cautioned in its 2018 statement that a repeal of Section 377A “would affirm and normalise the LGBTQ lifestyle.”

Finally, surrounding the entire debate over Section 377A is the wider question of LGBTQ+ activism in Singapore, and the Government’s attitude towards it. Similarly, advocates for and against Section 377A are generally agreed that the repeal of Section 377A is the first step out of many in a wider push for LGBTQ+ rights, even as they disagree about whether this is good or bad.

Prime Minister Lee Hsien Loong said back in 2007, “supposing we move on 377A, I think the gay activists would push for more, following the example of other avant garde countries in Europe and America, to change what is taught in the schools, to advocate same-sex marriages and parenting”.

The Slippery Slope is a Myth – Except When It’s Not

Right on cue, local activists have proceeded to demand a slew of legal and policy changes in their 2020 submissions to the United Nations Human Rights Council (Joint Submissions 2, 3, 4 and 6), including:

  • Repeal Section 377A and legal provisions criminalising sexual activity between consenting adults of the same sex
  • Implement “Comprehensive Sexuality Education” in schools
  • Anti-discrimination legislation, policies, and guidelines to prohibit discrimination on all grounds, including gender, sex, and sexual orientation.
  • Recognise or allow same-sex marriage in Singapore.
  • Rectify discriminatory laws that contravene the reproductive rights of LGBTQ persons and unmarried persons, by ensuring that Assisted Reproductive Technology is available to everyone, regardless of marital status, sexual orientation and gender identity
  • Abolish, or legally ban, all forms of “conversion therapy” to “correct” a person’s sexual orientation or gender identity

Solutions for Section 377A

The Government has said that it is considering “the best way forward” on Section 377A, adding that: “We must respect the different viewpoints, consider them carefully, talk to the different groups. And, if and when we decide to move, we will do so in a way that continues to balance between these different viewpoints, and avoids causing a sudden, destabilising change in social norms and public expectations.”

What are the possible options?

Option 1: Retain?

The simplest option is to resort to the status quo: retain Section 377A without enforcement, no more, no less.

Since the Attorney-General has not yet clarified his policy on enforcement of Section 377A, the law remains unenforceable in its entirety for the time being, following the 2022 apex court decision. Future challenges to the law would also be difficult (if not impossible), because there is no longer “any real and credible threat of prosecution” from an unenforceable law, and subsequent litigants are very unlikely to have legal standing to challenge the law.

It would preserve what the apex court called the “political compromise” in 2007. In the Prime Minister’s words, it maintains a balance, “to uphold a stable society with traditional, heterosexual family values, but with space for homosexuals to live their lives and contribute to the society.”

However, the arrangement will require shifting the public’s understanding of Section 377A away from its explicit nature as a law criminalising male-male homosexual acts, towards its “symbolic” value as a proxy law that serves as a barrier to the normalisation of LGBTQ+ ideas in society.

This will have to be buttressed with a social compact of mutual acceptance and restraint between the pro-retain and pro-repeal camps on the basis that such legal or policy changes are not the only solution. This social compact will have to acknowledge that people should be able to “live and let live” while being restricted from foisting a socio-political agenda upon the public.

However, is this practical or likely to happen? Circumstances have changed since 2007, including the views of the public and the positions taken by public institutions such as the courts and the Attorney-General on the matter. With these developments, retaining Section 377A may be tenable for a certain period of time in the short run, but certainly not in the long run.

Option 2: Amend – “Upgrade” or “Downgrade”?

One of the options is to amend Section 377A to criminalise lesbian sex as well, in order to address one of the criticisms brought by the litigants in the legal challenge against the law that Section 377A is “under-inclusive”, “because it does not criminalise female-female homosexual conduct”. Malaysia’s Section 377D provides a useful point of reference, since it is identical to Singapore’s Section 377A, except that Malaysia’s equivalent law covers “any person” rather than male-male homosexual conduct only. However, this option of “upgrading” Section 377A is unlikely, given the lack of political will on the matter.

Another option is to delete the words “in private” from Section 377A, in order to clearly give legal force to the Government’s and the Attorney-General’s statements that the law would not be enforced “two consenting adults in a private place”. However, there are already laws against public indecency, such as Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act. Such an option also does not resolve the difficulty that only male-male homosexual activity is singled out in law.

Option 3: Repeal?

Another straightforward solution would be an outright repeal of Section 377A. Parliament would thus – in the words of Pink Dot – “deal the final blow to Section 377A”.

This would certainly be perceived as a direct “win” for LGBTQ+ activists, and a corresponding “loss” for social conservatives who favour the retention of Section 377A in order to safeguard traditional moral norms. It would be the kind of “win-lose outcome” that the apex court had cautioned against, and fail to take heed to the court’s numerous careful comments on the ideal role of Parliament in devising “a pluralistic vision that accommodates divergent interests”.

Option 4: Repeal and Replace?

Perhaps the most difficult but most meaningful option may be to repeal Section 377A and to replace it with – to quote Archbishop Goh – “a formulation that more perfectly encapsulates the spirit of the law”, with guarantees against further demands from the LGBTQ+ lobby, at least for the time being.

What might such a formulation look like?

As can be seen, Section 377A’s legal and political symbolism to the conservative mainstream is two-fold: a reflection of traditional moral norms on marriage and family, and a signal that Singapore does not allow LGBTQ+ activism to set the pace for society, both elements of which were articulated by the Prime Minister in 2007.

At the same time, Section 377A’s non-enforcement is meant to recognise that individuals who identify as LGBTQ+ are part of Singapore society, are “our kith and kin”, and are entitled to live their lives free from the threat and fear of prosecution.

Accordingly, the “best way forward” may then be to encapsulate the spirit of the law by replacing the existing “political package” on Section 377A with a new political package that reflects a new social compact for Singapore society.

In our view, a suitable package should include the following:

  1. Enshrine the definition of man-woman marriage in the Singapore Constitution, which is the highest law of the land. This provides a firm legal basis for downstream legal and policy matters on marriage and family.
  2. Laws to regulate advocacy, public discourse, and media content on LGBTQ+ matters, especially to impose appropriate restrictions on content that children are exposed to. There should be clear and fair rules of engagement on all sides of the debate, so that discussions are kept civil and respectful, and there is no propagandising of controversial sexual or gender content towards children in any form, given their vulnerability and impressionability.
  3. Repeal of Section 377A, to make good the promise of non-enforcement and the entitlement of individuals who identify as LGBTQ+ to live their lives free from the threat and fear of prosecution.
  4. Bearing in mind that the cost of living in Singapore is high, society should consider suitable accommodations to meet the needs of everyone, including individuals who identify as LGBTQ+. This entails making provision for needs such as housing (home ownership, rental, or shelters for safe refuge) and employment.
  5. On questions such as hospital visitations and financial matters like insurance or Central Provident Fund (CPF), individuals can be given rights to appoint specific nominees who are able to make decisions or receive funds on their behalf. None of these accommodative policies require or should be specifically tied to endorsement of LGBTQ+ identities, or alternative definitions of marriage or family.

In the midst of deep and fundamental differences, the above may not fully satisfy any particular side of the debate, but may go some way towards meeting their respective underlying interests as well as concerns. It would also go some way towards affirming the basic humanity and belonging of all Singaporeans as one community.

In the words of now-Deputy Prime Minister (and future Prime Minister) Lawrence Wong, given at his November 2021 speech on “New Tribalism and Identity Politics”: “All must feel that they are part of the Singapore conversation; all must feel they are part of the Singapore family; all must feel there is hope for the future.”

Whatever solution that Singapore decides to take, it is important for the Government to adopt good and socially-optimal policy, bearing in mind not only short-term goals, but also the long-term destiny of Singapore.

The cautionary words of Prime Minister Lee Hsien Loong, stated in 2007, still ring true:

“On issues of moral values with consequences to the wider society, first we should also decide what is right for ourselves, but secondly, before we are carried away by what other societies do, I think it is wiser for us to observe the impact of radical departures from the traditional norms on early movers. These are changes which have very long lead times before the impact works through, before you see whether it is wise or unwise. Is this positive? Does it help you to adapt better? Does it lead to a more successful, happier, more harmonious society?

So, we will let others take the lead, we will stay one step behind the frontline of change; watch how things work out elsewhere before we make any irrevocable moves. We were right to uphold the family unit when western countries went for experimental lifestyles in the 1960s… But I am glad we did that, because today if you look at Western Europe, marriage as an institution is dead. Families have broken down, the majority of children are born out of wedlock and live in families where the father and the mother are not the husband and wife living together and bringing them up. And we have kept the way we are. I think that has been right.”

On one hand, the Government cannot rule by public opinion alone, since it is elected to perform an important public function; populism is a poor reason for policy change. On the other hand, it cannot ignore public opinion, since it is ultimately accountable to the people in a democratic society.

Minister Shanmugam put it across clearly when he said: “Public opinion alone cannot be the deciding factor – Government  has to do what it considers to be right and fair, in the public interest. Public opinion can sometimes be inaccurate, because of a lack of understanding of the facts – and it would be wrong for the Government to simply follow public opinion in all situations. There is a need to assess it, and in the end, Government has to decide what, in its view, is right and fair. And explain to the people why such an approach is the right one, in public interest.”

A responsible government should instead cope with cultural climate change in a way that does not merely react to the changes, but rather, responds to the problem holistically. In this circumstance, the Government should consider the developments elsewhere in order to stay ahead of such developments.

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