The Singapore High Court today heard the first full hearing of a challenge filed by a gay couple Gary Lim and Kenneth Chee who are seeking to challenge the constitutionality of section 377A of the Penal Code that prohibits sexual relations between men.
The case was heard by Justice Quentin Loh and was conducted in chambers meaning that only the parties who are directly involved in the matter may attend. Chee or Lim were not present for the hearing that lasted three and a half hours.
The plaintiffs, through their lawyers, Peter Low and Choo Zheng Xi from Peter Low LLC and Indulekshmi Rajeswari from MyintSoe & Selvaraj have filed a 123-page submission.
Supporting affidavits by Professor Roy Chan, founder and President of Action for AIDS Singapore; and Bryan Choong, Centre Manager & Counselor of Oogachaga, a gay and lesbian affirmative counseling agency in Singapore, to explain the negative effect of s377A on homosexual men were not allowed by the judge.
Summary of the plaintiffs’ key arguments
1. Article 12 of the Constitution covers protection against discrimination on the basis of sexual orientation. The Government has admitted this, in their replies to the questions of the CEDAW Committee in 2011.
2. S 377A is absurd, arbitrary and unreasonable since it criminalises identity of the person.
a. Homosexuality or same-sex attractions are innate and immutable, and change comes at a great personal cost to the person.
3. S 377A is absurd, arbitrary and unreasonable since it is selectively and arbitarily enforced.
4. S 377A is absurd, arbitrary and unreasonable since it causes harm to gay/bisexual men
a. Through limiting HIV/AIDS outreach. Since gay sex acts are illegal, it causes a lot of difficulty in the work of HIV/AIDS outreach organisations in reaching out to at-risk populations. It is particularly difficult to reach out to gay youth. Dr Roy Chan from AFA has given expert evidence on this matter.
b. By causing psychological damage. By criminalising the very identity of the person, it devalues and degrades the person. Young gay/bisexual teens are especially vulnerable, as they are insitutionally cut off from any support. Mr Bryan Choong from Oogachaga has given his expert evidence on the matter.
c. Makes it difficult to approach law enforcement for protection and leaves them particularly vulnerable to blackmail. Anyone can report a gay friend, relative or colleague. Men who have been raped, or those who are domestic violence victims, can never approach the police without worrying that they will be prosecuted.
5. S 377A fails the two-stage test of Constitutionality
a. The term “gross indecency” is so vague as to be completely unintelligible
b. There is no rational relation between the law and the objective of the law
i. If the objective of the law was to protect public morality or family values, the law is grossly underinclusive, as it does not cover lesbians and heterosexuals who choose to commit other acts which are against public morality, such as adultery or pre-marital sex
ii. In any case, there is no evidence that homosexuality harms family values
iii. If the objective was to protect public health, then the law does not work either, since it makes HIV/AIDS outreach more difficult
iv. If the objective was to protect the young, it does not work very well, since there are no age of consent provisions. Furthermore, there are other provisions in our legal system that protect the young, such as s 376A of the Penal Code.
v. If the objective was to protect public decency, it is vastly over-inclusive since it covers acts in private. Furthermore, there are other provisions in our legal system that protect public decency, such as s 294(a) of the Penal Code.
Summary of submissions for the Attorney-General
In a media statement obtained by Fridae, the Attorney-General argued that s 377A is constitutional under Article 12 of the Constitution of Singapore as “the classification in s 377A is founded on an intelligible differentia between men and women” and cited the objectives of preserving “public morality” and “public health”.
The Attorney-General argued that section 377A is constitutional as it is applies to all men, not just gay men, who have sex with other men.
“We have submitted that the differentiation in s 377A is simply between men and women. Section 377A does not apply specifically to men who identify as homosexual. It equally applies to those who identify as heterosexual or bisexual, so long as the relevant acts are committed.”
The AG also explained that although the law “reflect(s) public morality”, lesbian sex is not criminalised so as to “strike a legitimate balance between the moral norms of the majority and the interests of homosexuals.”
“In addition, the Attorney-General submits that s 377A has the clearly-stated purpose of reflecting public morality. This is based on the fact that the majority of Singaporeans still find homosexual acts unacceptable, as reflected in Parliamentary debates. Although Parliament has chosen to retain the wording of s 377A which does not encompass homosexual acts between females, this decision strikes a legitimate balance between the moral norms of the majority and the interests of homosexuals. As the objective of s 377A to reflect public morality is still substantially advanced even with this differentiation, the differentiation is not of itself unconstitutional.”
The AG also argued that the Court should find section 377A constitutional under Article 12 of the Constitution because sex between men poses a substantially higher likelihood of transmission of sexually transmitted infections as compared to sex between women which has "much lower" risks.
“We have further argued that the Court should find s 377A constitutional under Art 12 of the Constitution because there is a scientifically-established difference between the public health risks associated with sex between men and sex between women. The former poses a substantially higher likelihood of transmission of sexually transmitted infections such as Human Immunodeficiency Virus (“HIV”), as well as posing other health risks. By contrast, there have been no documented cases of HIV transmission arising from sex between women and the health risks associated with such acts are generally much lower.”
The AG added, “the evidence raised by the Plaintiffs that they face difficulties as homosexual persons in Singapore are not sufficient grounds to discharge the burden of showing that s 377A is unconstitutional under Art 12.”
Justice Quentin Loh will hear a separate case filed by Tan Eng Hong who was initially charged under section 377A in 2010. His charge was later amended to section 294 (obscene act in public). His lawyer M Ravi had by then initiated a constitutional challenge to Section 377A of the Penal Code. In August 2012, Singapore’s Court of Appeal overturned an earlier decision by the High Court to rule that Tan and other gay men are affected by the law and therefore have a legitimate interest in pursuing the case in court.