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19 Jul 2011

Constitution guarantees equality "regardless of ...sexual orientation", says Singapore government. Really?

What does it mean for the Singapore government to tell the UN that the "principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity" when the specific terms are not found in the Singapore constitution?

I can’t decide whether to call it chutzpah or cowardice, but what I do know is that it’s quite mistaken. The constitution does not contain any reference to sexual orientation, at least not explicitly. I would wish it to be the case, but it is not. 

Yet this was what the Singapore government asserted when, in a written reply to the United Nations, it said, 

31.1 The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. 

This sentence was contained in a lengthy reply (dated 12 May 2011) submitted for the preliminary process before the assessment of Singapore later this month under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Singapore acceded to in 1995. You can see it yourself at this link — go to Section 31, which is the government’s response to a question specific to sexual orientation and gender identity. 

Equality and autonomy for women include the right for each to determine for herself her sexual expression; that is why the rights of lesbian and transgendered women are included in the review of women’s rights. As we all know, the situation for lesbians and transwomen fall far short of equality in Singapore, yet before the United Nations, when called upon to explain itself, the government blithely asserts that our constitution says what it does not say.

You could call it chutzpah. Or you could call it cowardice, preferring to say what it thinks the international community wants to hear rather than own up to its own failings.

That said, just because the constitution does not explicitly mention sexual orientation does not mean that equal protection does not extend to it. However, it will require an explicit case judgement or declaration from the highest court to nail down, by way of interpretation, that the clause does encompass sexual orientation and gender identity. Such has not yet taken place. If anything, the fact that all sorts of discriminatory laws and policies exist suggests that the government does not believe they are constrained by the constitution not to discriminate. This contradiction between the Singapore government’s words in an international forum and its domestic behaviour is rather shameless.

At paragraph 6.1 in the statement, the Singapore government states, with reference to Article 12 (Equal protection of our laws) of our constitution that 

Any person who is of the view that his or her rights under the law have been infringed upon can bring an action in the local courts.

This is a very inadequate answer, given the reality. The reality is that we have all these laws and policies that discriminate. To merely say, well, you can challenge them if you wish, and yet expect this answer to be accepted as proof that there is no discrimination is nonsense. It’s as ridiculous as John beating up Sally, and then telling the world, “Well, Sally could have fought back if she wanted and I wouldn’t then be beating her,” and brandishing such a statement as proof that John didn’t beat Sally. 

Just in Section 31 alone — the text of which is archived here for easy reference — there are several other mentions in the government’s statement to CEDAW that raise eyebrows. 

For example, it says “All persons . . . have equal access to basic resources such as education, housing and healthcare”. This is not true again. In education, lesbian and transgendered schoolgoers are denied sexuality education that is relevant to them. The ministry of education insists that sexuality education must in practice adopt a tone of disapproval and erasure of their identities, and must deny information that would help them be better informed about their sexual lives. As for public housing, access and subsidies are skewed to favour heterosexual persons through the eligibility test of marriage, which in Singapore is denied to same-sex couples. Unable to marry in any way meaningful to them, lesbians are thus denied equal access to and subsidies for public housing. 

Further down Section 31 of the government’s reply, it mentions “Gay groups have held public discussions and published websites, and there are films and plays on gay themes and gay bars and clubs in Singapore” and that there are “mass media and Internet platforms” for gay and lesbian persons to raise issues with policy-makers and create awareness in the public domain. Sure there are, but when films, seminars, mass media and the internet are used to address gay concerns, tighter regulations apply. Free-to-air television for example is required by the government to excise almost all positive representation of gay characters and gay-affirmative messages. Films with gay themes are rated more harshly than those with heterosexual scenes.

Graphic: Yawningbread

That there is some allowance for speech and representation is not the point. The key word in the CEDAW convention is “discrimination”, and the onus of the government going before the CEDAW review is to demonstrate that there is no discrimination. By glossing over the unequal treatment enshrined in licensing and censorship policies, the government is clearly trying to hide its failure to live up to its CEDAW obligations.

One sentence is almost surreal: 

Besides the adoption of fair employment practices promoted by TAFEP, Singapore’s employment legislation provides recourse for employees who feel they have been unfairly dismissed, including on the grounds of their sexual orientation and gender identity and they have recourse to appeal to the Minister for Manpower for reinstatement to their former employment.

“TAFEP” stands for Tripartite Alliance for Fair Employment Practices (fairemployment.sg). Despite what the government seems to claim in its statement to CEDAW, TAFEP’s Five Principles for Fair Employment do not mention sexual orientation as an illegitimate basis for discrimination. However, the Five Principles do mention “gender” and arguably “gender” includes sexual orientation, as many recent interpretations of laws, conventions, policies, etc, in the West have made clear. However, in the context of Singapore, where our laws and policies explicitly discriminate on the grounds of sexual orientation, we cannot make the same assumption that the word “gender” in TAFEP includes sexual orientation. Therefore, for the government to conveniently claim that TAFEP addresses the concerns as laid out in Question 31 appears to be another attempt to gloss things over.

As far as appealing to the Minister for Manpower is concerned, I’m not sure where that comes from. I looked closely at the Employment Act while preparing to write this piece, and I just cannot find any provision for the minister to intervene when it comes to discriminatory firing. If anyone knows more about this, please drop me a note.

Alex Au has been a gay activist and social commentator for 15 years and is the co-founder of People Like Us, Singapore. Alex is the author of the well-known Yawning Bread website.



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