Gays at the gate: Present but not invited

By Alvina Koh

A drag performance during PinkDot 2019. PHOTO: LIANG LEI

There were three court challenges to the law criminalising homosexual sex — all three were dismissed yesterday. 

I had hoped that they would succeed, especially since new material was put forward to show the original intent of Section 377A of the Penal Code was to curb male prostitution at a time Singapore was under British colonial rule. That was in the 1930s.

But it’s the year 2020. Why should private consensual sex between men still be criminalised?

I had also thought that the appellants would have more legal ammunition given former Chief Justice Chan Sek Kong’s 72-page analysis in the Singapore Academy of Law Journal in October last year. 

In the article, titled Equal Justice under the Constitution and Section 377A of the Penal Code, he called for a review of the law because, among other things, it wasn’t gender-neutral and could be seen as a violation of the Constitution which ensures equality of all before the law.

But no dice.  

Justice See Kee Onn said in his written judgment there was no evidence the law was introduced solely to target male prostitution. Neither did he find former Chief Justice’s position on gender discrimination accurate. 

“The purpose of S377A is not to discriminate against male homosexual conduct,” Justice See wrote in his judgment. “Rather, it is for the safeguarding of public morals through the criminalising of such conduct.” 

The law was as the legislature had intended and the courts were in no position to say otherwise. 

I was disappointed. Whose public morals were we protecting or promoting anyway? 

To be clear, I’m a straight, 23-year-old female with a handful of close gay friends whom I love with my life. I’m not saying this to save myself from character assasination by conservative quarters. Nor am I saying this to show how “woke” I am about issues faced by marginalised groups. It’s what I feel and, more so, what my peers feel too. 

Even as the courts hold the line on Section 377A, conservative folk are probably aware that the tide is turning against them.  At a broader level, the social structure still bears down on people who want more “normalisation’’, rather than just an acknowledgment of the LGBT community. But at the generational level, the reverse is true. 

It seems younger people are more empathetic to the LGBT cause and are quick to vilify those who claim to be anti-gay. 

Young Singaporeans have become accepting of homosexuality too, showed an 2018 Institute of Policy Studies (IPS) survey. Respondents between 18 and 25 who thought gay marriage was never wrong, doubled between 2013 and 2018, from about 17 to 42 per cent. This was tripled for gay sex, from about 11 to 30 per cent. 

That even a ban on foreign sponsorship of events has not dampened support for Pink Dot, an LGBT event, is another indication. As many as 120 Singaporean businesses raised $240,000 for the carnival in 2017 despite the loss of heavyweight foreign sponsors like Google and Barclays. 

So another legal challenge bites the dust, even after luminaries like Ambassador-at-Large Tommy Koh and founding chairman of the Singapore Management University (SMU) Ho Kwon Ping spoke in support for a repeal in September 2018. 

Justice See, like the judges before him, reiterated that changing the law was not the role of the judiciary, but the legislature. That is, it’s Parliament’s job, not the court’s.

He even expanded on a subject raised by the former Chief Justice Chan which the appellants didn’t rely on — whether determining if a law was constitutional belonged to the “exclusive purview’’ of the judiciary under separation of powers. He agreed that this was well within the judiciary’s purview. But “where issues of social morality are concerned”, the legislature is “best placed to understand and represent the interests of Singapore citizens”. 

That place seems to be a ‘see no evil, hear no evil, say no evil’ approach. The presence of the LGBT community is neither fully encouraged nor condemned. It is allowed to exist, and have some of their demands granted, so long as the community is not seen as a threat to the existing power arrangements. That’s the current sweet spot.

But this may mean a gay person has to continue facing hurdles not present in a heterosexual person’s life.  

For example, my gay friends will never relate to my struggle to find a prospective husband to apply for a Build-to-Order (BTO) flat with — simply because doing so is not an option for them. In Singapore, where the notion of ‘settling down’ extends only to the heterosexual couple, the gay community is forced to seek alternatives within the system.

Where heterosexual couples can combine their CPFs to pay for their government-subsidised HDB flat together, same-sex couples can only live together in HDB flats as “joint singles”, meant for buyers aged 35 years and older.

Renting is an option, of course. But landlords or housemates may pull the rug out from under them anytime. As pointed out by my friends, a clause in the standard Tenancy Agreement prohibits tenants from using the rented premises for any activities with illegal purpose or of improper nature. Same-sex couples could be evicted unwittingly if their landlords or housemates take issue with this clause. 

The best way is to purchase private property, such as condominiums, since there are hardly any restrictions and both partners can use their CPF to pay for it. The only downside? It’s really damn expensive. 

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Then comes the question of starting a family. I often brag about wanting just one child so that I would have greater financial freedom. I also know for a fact that the State will assist me along the way with its generous Baby Bonus policy, which promises a $8,000 cash gift for each of my first two children. 

My future children will also get yearly Edusave top-ups for education expenses, right up till secondary school. The perks of raising a child in Singapore are pretty good. 

Naturally, my gay friends will not be able to have children. But they are not even given the privilege of raising one. 

The euphoria over a December 2018 case in which a gay couple in Singapore were allowed to adopt their surrogate son were soon tamped down. Chief Justice Sundaresh Menon stressed that the decision had more to do with the child’s welfare than an endorsement of surrogacy and gay adoption. 

In other words, the unique circumstances of the child and couple merely coincided with the goals of the movement and was not to be taken as a precedent for future cases. 

LEGAL PROTECTION FOR THE LGBT COMMUNITY?

As a Singaporean female, I am aware of the support and protection rendered to me under the Women’s Charter. In May 2019, the Criminal Law Reform Act repealed marital rape immunity and amended the definitions of rape, enlarging the legal arsenal women have in protecting ourselves. 

There are, however, no laws that protect LGBT individuals against what is known as intimate partner violence. Too many are wary of reporting abuse because that itself could be construed as a breach of Section 377A. Likewise, this group may also not be comfortable talking to hospital doctors or nurses because of the stigma surrounding same-sex relationships. 

The LGBT community now have new legal protections against violence under the recently amended Maintenance of Religious Harmony Act, which prohibits religious groups from inciting abuse against them. 

Clearly, this is a demonstration of the State’s preferred relationship with the LGBT community. It chooses only to address the immediate and practical concerns of the LGBT community rather than engage in a wider discourse surrounding the discrimination faced by the community.

Even if the judiciary is disinclined to act on 377A and the legislature wants to hew to the feelings of the conservatives, it’s a fair bet that change will come sooner rather than later. Besides the inexorable global move to legitimise the LGBT community, the powers that be will have to contend with the changed attitudes of every succeeding generation. 

Repealing 377A might well lead to more calls for normalisation of the community, and for equal rights to extend to other policy realms like housing. The discourse then will not be about constitutionality or the scientific arguments about the homosexual state, but about apportionment of State resources and a re-definition of the word “family’. 

Perhaps by then, my generation would have the louder voice. We might even be in charge.