What you need to know
It’s good that Section 377A of the Penal Code, which criminalizes sex between men, is being repealed. But what has been won should should not be mistaken as an act of progressive change by the ruling party.
After over a decade of activism and advocacy, Singapore’s colonial-era anti-gay law is finally on its way out. But that doesn’t mean the fight for LGBTQ equality is over; this is only one milestone in a much longer journey.
Section 377A of the Penal Code, which criminalizes sex between men even if consensual, has been a major target in LGBTQ activism in Singapore since 2007. In that year, Parliament repealed and re-enacted Section 377 — which originally criminalized any sex act “against the order of nature with any man, woman, or animals” — to criminalize the sexual penetration of corpses. This thus legalized oral and anal sex for heterosexual couples. But Section 377A, which was specifically about men having sex with men, was left untouched. As a “compromise,” the People’s Action Party government announced that while the law would be retained to represent society’s overall conservative attitude, it would not be proactively enforced.
Since then, LGBTQ activists have pointed out that it isn’t just a matter of enforcement: the existence of Section 377A on the books legitimized the idea that LGBTQ people could be treated differently, validated homophobic attitudes, and allowed people to justify discriminatory and hateful attitudes to be justified with “Well, it’s technically against the law to be gay, isn’t it?” They also highlighted the trickle-down effects of Section 377A on government sexuality education policy in schools and media censorship. Because Section 377A existed as a monument to societal disapproval of the LGBTQ community, education and media guidelines followed suit in restricting the representation of LGBTQ relationships and experiences, stigmatizing LGBTQ students in schools and making it even more difficult to fight prejudice.
What finally tipped it over the edge?
The repeal of Section 377A was finally announced during Prime Minister Lee Hsien Loong’s National Day Rally speech on August 21, 2022. “From the national point of view, private sexual behavior between consenting adults does not raise any law-and-order issue,” he said. “There is no justification to prosecute people for it, nor to make it a crime.”
This should not be mistaken as progressiveness on the part of the ruling party. From Lee’s speech to the subsequent comments made by other government ministers and agencies, it’s clear that the PAP isn’t acting out of belief in equality for Singapore’s LGBTQ community. For many years, Section 377A had been something the PAP had been reluctant to surrender, likely out of concern over backlash from a very vocal, religious conservative segment of the population. That the PAP has finally let it go is the result of years of effort on the part of LGBTQ activists and their allies. Queer Singaporeans have, through events like the annual Pink Dot rally, along with providing community support, consistent outreach on social media, and filing constitutional challenges in the courts, fought long and hard to be treated as equals to their fellow citizens. Even while navigating an environment of media censorship, they’d carved out spaces to tell their own stories, bravely putting themselves out there to correct misconceptions and educate the public. When Lee commented in his National Day Rally speech that societal attitudes had shifted enough for the government to repeal 377A, what he was referring to was the result of painstaking civil society efforts that were undertaken despite the barriers his own government had erected.
Apart from shifting attitudes, it’s important to note the main reason Lee cited for repealing Section 377A now. While the Court of Appeal had dismissed constitutional challenges to s377A earlier this year, the government was advised by both the Attorney-General’s Chambers and the Minister for Law that future court challenges might actually succeed in striking the law down. This was the major impetus prompting the PAP to act now.
Shielding straight marriage from legal challenges
Section 377A’s repeal is a momentous occasion for LGBTQ Singaporeans, activists, and supporters. It’s something that so many of us in civil society and the arts have talked about so long, wondering if we would ever see it in our lifetimes. As recently as half a year ago, it seemed like something that wouldn’t happen any time soon.
That said, the relief, joy and excitement has been tempered by what the PAP government has committed to do alongside repeal.
“[Even] as we repeal s377A, we will uphold and safeguard the institution of marriage. Under the law, only marriages between one man and one woman are recognized in Singapore,” Lee said in his speech.
“Many national policies rely upon this definition of marriage — including public housing, education, adoption rules, advertising standards, film classification. The Government has no intention of changing the definition of marriage, nor these policies.”
By the government’s own admission, it was constitutional challenges against Section 377A in the courts that had finally tipped things over the edge and pushed them to repeal the law. Unwilling to see that happen again, the PAP is now planning to amend the Constitution specifically to block LGBTQ Singaporeans from challenging the legal definition of marriage as being between a man and a woman in the courts. We have not yet seen the proposed text of this constitutional amendment, but Minister for Law and Home Affairs K. Shanmugam has said that it will make clear that it is Parliament’s prerogative to define marriage. If anyone wants to change the legal definition of marriage, they will have to find ways to push Parliament to make the relevant legislative changes. This is not likely to happen any time soon: Singapore’s political landscape is overwhelmingly dominated by the PAP, and they have already made clear that they aren’t going to budge. In an interview, Deputy Prime Minister Lawrence Wong, poised to take over from Lee Hsien Loong as leader of the party, said the PAP will neither change the definition of marriage under the current Lee administration nor his own (assuming the PAP wins the next general election, which is a pretty safe bet).
What’s not going to change
The PAP government is now attempting to hedge its bets with what it believes to be a conservative majority. While recognizing that it’s become untenable to retain an archaic, pointless and discriminatory law, the PAP is working hard to tell Singaporeans that nothing much will really change at all.
Following Lee’s speech, the Ministry of Education published a statement saying that “education policies and curriculum will remain anchored on Singapore’s prevailing family values and social norms, which the majority of Singaporeans want to uphold. These include the family as the cornerstone of our social fabric, and marriage between a man and a woman.” The Ministry of Communications and Information also put out a statement affirming that “LGBT media content will continue to warrant higher age ratings.”
In other words: while Section 377A is on its way out the door, many of the reasons behind activists’ arguments for repeal are still being firmly asserted and enforced by the government.
A big part of the problem of s377A is the message that it sends. This is not something that’s fixed by repealing s377A but persisting with the discriminatory policies and practices. Going to trouble of actually amending the highest law of the land to cut off a legitimate avenue of activism and advocacy (i.e. going to the courts) also sends a signal to society that special measures need to be taken when dealing with LGBTQ issues, and that the rights of LGBTQ people can be negotiated and bartered.
The issue about the legal definition of marriage — and the constitutional amendment to protect it — is not just about marriage. So much of Singapore operates in accordance with so-called “pro-family” policies, and one’s marital status, tied to legal recognition of a “family unit,” affects one’s life in many practical ways. Access to public housing is one of the most obvious, because the system is geared towards catering to Singaporeans in heterosexual marriages. (Unmarried Singaporeans aren’t even allowed to apply for their own publicly subsidized Built-To-Order housing units until they are 35 years old.) Adoption laws now also make clear that gay couples cannot adopt. Then there are questions related to things like insurance or recognition of next-of-kin in medical emergencies. If someone is in a transnational same-sex marriage, visas are going to be absolute nightmares to deal with when Singapore doesn’t recognize your marriage. There are a litany of bread-and-butter concerns that are tied to marriage status and “family units,” and LGBTQ citizens are discriminated against in all these areas.
Section 377A used to be a symbol that legitimized this different treatment; now the PAP’s repeated “reassurances” to the public, and its intention to amend the supreme law of the land, will perpetuate the practice.
The PAP government’s recent statements have made it clear that they don’t themselves believe that LGBTQ people in Singapore have the right to equal treatment. If they did, they would be framing their decision to repeal Section 377A as a step towards a fairer and better Singapore, and working to educate Singaporeans about the importance of fighting discrimination and prejudice against marginalized communities.
Instead, what we’re seeing is a party telling Singaporeans that nothing much is going to change, that everything is going to be okay, that they will take steps to “safeguard” marriage and families from further movement towards things like same-sex marriage… Such rhetoric validates the notion that the repeal of Section 377A is something that people need to be wary of, and that the government has to mitigate in order to “protect” society. It’s a framing that implies that the LGBTQ community and the push for LGBTQ rights are threats to our Singaporean way of life. It feeds into the belief of conservatives that they are the ones being oppressed by sexual minorities, bringing with it the danger of backlash against a community struggling for dignity and equality before the law.
The upcoming repeal of Section 377A in Singapore has been celebrated across the world as a positive step forward. It’s true that it’s better the law goes than remains, but what has been won is far more limited than people might initially realize. The hard work continues for Singapore’s LGBTQ community and their allies.
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TNL Editor: Nicholas Haggerty (@thenewslensintl)
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