Archive of "Gay Law: Emancipation And Emasculation", Lim Wee Kuan, 1 October 2002

This groundbreaking talk on laws pertaining to Singapore's LGBT community was delivered by lawyer Lim Wee Kuan at the Free Community Church on 1 October 2002. It was requested by the community and deemed to be highly relevant in the wake of the arrests of men during police raids on gay saunas.

Gay Law: Emancipation And Emasculation

By Wee Kuan

1 October 2002

Good evening. To my knowledge, this is the first time in the history of the gay movement or gay support groups in Singapore that there is a formal presentation/talk on gay law to gays, lesbians and bisexuals.

I now refer you to the flowchart. This talk is divided into four parts beginning with this introduction.



=Part I : Introduction=

1. Rights & Liabilities
You know your rights and liabilities when you understand the laws governing homosexual conduct in Singapore and the legal and political developments in Singapore. These will be examined in Part II.

2. Global Solidarity
Global Solidarity means three things. First:

(i) To share in the legal and political victories secured by and for GLBT people. Fifty years ago, it would be far-fetched to think that consensual sodomy would be widely decriminalized in the United States, and in over 90 countries as it is today.

In 1998, nine judges of South Africa Constitutional Court unanimously held:

The invalidation of anti-sodomy laws will mark an important moment in the maturing of an open democracy based on dignity, freedom and equality. As I have said, our future as a nation depends in large measure on how we manage difference. In the past difference has been experienced as a curse, today it can be seen as a source of interactive vitality. The Constitution acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation."

Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity…

- National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others, 1998

Thirty years ago, it would be unthinkable that there would be anti-discrimination laws to protect gays in public and private employment, custody of children, immigration etc. But they are now common in over 15 states in the world. And nine counties have laws that punish vilification of gays. The 31 Aug 2002 issue of the Economist reported that many leading banking and investment banking firms including HSBC, Goldman Sachs, J.P. Morgan Chase have formed GLT support groups for their staff.

In Asia, in 1997, the Tokyo High Court ruled that the Tokyo City Board of Education discriminated against the gay group Occur in 1990 by refusing to let its members hold an overnight study meeting at a city-run youth hostel. Lawyers for the government argued that letting gays sleep overnight in youth hostels would "cause disorder" because hostel rules require that "men and women ... sleep in separate rooms. [A]llowing gay people in the same room, who are likely to have sex, would cause troubles to other guests," they said.

But the court rejected the government's argument. It said: Government agencies are "obligated to pay careful attention to the situation of homosexuals as a minority and to guarantee that their rights and interests be upheld," the court said. "Indifference and ignorance regarding homosexuality are inexcusable on the part of persons in the position of wielding governmental authority." It also said: The rejection was unconstitutional as it denied gay people equal access to the public facility," the High Court said. "The city government should have given due consideration to homosexual people, and its indifference and ignorance will not be tolerated."

The Tokyo Metropolitan Government has finally included sexual orientation as a category protected from discrimination within its new human rights guidelines.

With this decision on November 21, 2000, Tokyo sets a significant precedent as the first city or country within Asia to provide anti-discrimination protection on the basis of sexual orientation. Fifteen years ago, it would be inconceivable that benefits and rights reserved for straight marriages would be extended fully or partially to same-sex couples. But now same-sex couples in ten countries and the state of Vermont in America enjoy such rights and privileges. And who could ever think that same-sex marriage would be legalized in the Netherlands in 2000, making it the first state in the world to do so.

In Baker v State the Vermont Supreme Court held that "legal protection and security for the claimants avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."

(ii) To empathise with the sufferings, persecutions and struggles of GLBT People. In the Amnesty International Report 2001 entitled 'Crimes of hate, conspiracy of silence: Torture based on sexual identity - an unacknowledged global shame' (the "Amnesty Report"), there is well-established evidence to show that LBGT people have tortured, coerced into accepting medical and psychiatric treatment, sexually abused, to the extent that they have tried to escape from their countries and seek asylum in other countries.

Homosexual acts are criminalized in over 80 countries. And in Sudan, Afghanistan, Saudi Arabia, Pakistan, Chechen Republic, Iran, Yemen and Mauritania, homosexual acts are punishable by death. And gays have been put to death over the past ten years in Afghanistan, Iran and Saudi Arabia.

The Amnesty Report states that "generalised tolerance of abuses against LGBT people, fear of retaliation and reluctance by the victims to gain exposure, are some of the factors contributing to this silence."

You should read a very tragic yet hopeful story of the persecution of gays which can be found in the introduction of the Amnesty Report. Justice Albie Sachs, Constitutional Court of South Africa, 1998 states that:

In the case of gays, history and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group.

(iii) To contextualise and see Safehaven and all the GLBT groups in Singapore as part of worldwide struggle for equality, justice and freedom. By providing a safe and accepting environment for GLBT people to express and associate with each other, the gay support groups in Singapore are securing and advancing the inalienable and fundamental human rights of freedom of expression and association for GLBT.

1. Sources
The key sources I relied are:

Amnesty-International: Lesbian, Gay, Bisexual and Transgender Network http://www.ai-lgbt.org/

International Lesbian and Gay Association: World Legal Survey http://www.ilga.org/Information/Legal_survey/ilga_world_legal_survey%20introduction.htm

People with a History: An Online Guide to Lesbians, Gay, Bisexual, and Trans History http://www.fordham.edu/halsall/pwh/

A comprehensive encyclopaedic compilation of gay legal resources http://www.lib.uchicago.edu/~llou/sexlaw.html

The sources will show what I have excluded form my research that led to this talk. And hence you would appreciate the strengths and weaknesses of the contents of this talk.

2. Approach
In Part II, I will examine the Gay Laws in Singapore in detail. But in Part III, I will not go into the minutiae of details but will draw out some important lessons on principles and policies from the laws in U.S. and the Scandinavian countries. The issues in Gay law are extremely vast and can be complex at times. Since most of you are not legally trained and uninformed about legal developments on homosexuality, I hope to provided a very brief and selective overview on gay laws in Singapore and overseas.

1. Gay
Gay in this talk means gay, lesbians, bisexuals and transgendered people. No distinction will be drawn unless otherwise stated.

2. Gay Law
It means one of or all of the following three things—laws that:

(i) criminalize or have decriminalised gay conduct such as sodomy, solicitation, indecent behaviour,

(ii) discriminate or have anti-discriminatory provisions that protect gays in public, private employment, custody of children, immigration, and/or

(iii) confer rights and privileges to same-sex couples in the form of legalised same-sex partnerships or marriages.

Part II: Singapore Gay Law

Homosexual conduct in Singapore are criminalized under the following provisions:

- Sections 377, 377A, 354, 294(a) of the Penal Code - Sections 19, 20 of the Miscellaneous (Public Order & Nuisance) Act

I will speak about the rationale, scope, enforcement and sentencing of these laws in Singapore.

=Part IIA. Penal Code=

(1) Sections 377, 377A Penal Code (Unnatural Sex)
Most of criminal law can be found in the Penal Code. Others can be found, for example, in the Misuse of Drugs Act, Prevention of Corruption Act etc. Our Penal Code is largely based, with few and immaterial amendments, on the 1860 Indian Penal Code. The Indian Penal Code was drafted by Lord Mauculay in the late 1850s. As such, the Indian Penal Code embodies English 1850s values and mores. Unsurprisingly, England used to have a law like Singapore and India criminalizing unnatural sex, committed either between the same or opposite sexes.

But the English 1967 Sexual Offences Act decriminalised unnatural offences and legalised consensual oral and anal sex between the same or opposite sexes. However, the age of consent between straight and gays are different in England (16 for the former and 18 for gay men). In Singapore, the unnatural offences provided in sections 377, 377A, vestiges of Victorian antiquity, have not changed.

Section 377 covers fellatio and cunnilingus, committed either between the same or opposite sexes. It also covers bestiality and anal sex. But the scope of s377 is not closed. The Court of Appeal, Singapore's highest appellate court, has held in PP v Kwan Kwong Weng [1997] 1 SLR 697 that all sexual activities are unnatural unless there is vaginal penetration. But foreplay which may involve oral or anal sex between straight couple does not violate s377 if the foreplay leads to vaginal penetration. It is unclear whether there must be actual vaginal penetration, or whether an intention to penetrate suffices.

Section 377 has consistently been used against paedophilic activities, or any non-consensual sex involving minors (who are incapable of consent) or with the opposite sex which often also entail rape. But it appears from my research that s377 has not been used against gay or straight consensual oral and/or anal sex.

Still, other provisions in the penal code such as the provisions on gross indecency (s377A), outrage of modesty (s354) and obscene acts (s294(a)) have been deployed to criminalize homosexual conduct.

For example, s377A punishes with a maximum sentence of two years imprisonment any public or private gross indecent act. It also punishes those who help or instigate others to commit the offence. The scope of s377A covers masturbation or fondling of one male's genitalia by another. The High Court held in Ng Huat v PP (1995) 2 SLR 783 that the standard of 'gross indecency' is what a right-thinking member of the Singapore public considers grossly indecent. The court applies community morality. In that case, the accused touched the genitalia of a man while performing his duties as a radiographer. He was sentenced to 3 months imprisonment instead of 10 months by the magistrate court.

As for the incidence of enforcement, NUS sociologist Lawrence Leong notes in 'Socio-Legal Control of Homosexuality' (1997) that:

Section 377A has been used to convict same-sex acts in public settings such as a parked car, and open-space parks etc. In 1991/92 the sentencing norm was two to three months, but from 1993 onward it was set at 6 months.

My research indicates that s377A has not been used against any consensual homosexual conduct. The cases show that s377A has thus only been used against paedophiles or any non-consensual homosexual sex. But there is a possibility that gays could have been charged for unnatural sexual offences but instead chose to plead guilty. In such cases, there would not be any trial and hence no case law would have been formulated. The magistrate would just pass a sentence and no reason would be given to justify the sentence. The charge, conviction and sentencing would be recorded, but I have no access and my friend, a judicial officer in the Supreme Court, too would have no access.

(2) Section 354 Penal Code (Outrage of Modesty)
Section 354 provides that if any person uses criminal force to any person intending to outrage or knowing it would be likely to outrage the modesty of that person, he shall be imprisoned for a maximum of two years or with fine or with caning or with any two of such punishments.

Gays had been charged under s354 when they touched the police decoys. You may remember that in the early and mid 90s that police conducted undercover operations in certain places such as Katong Park, Tanjong Rhu reclaimed land or even East Coast Park where gays were known to cruise or solicit for sex. From 1990-94, 50 gays were charged under s354. The usual punishment in 1993 was two to six months imprisonment plus caning, usually three strokes (see article by Leong).

In 1994 a man was charged under s354 for molesting the undercover policeman by touching the policeman's penis. The police was conducting undercover operations in Tanjong Rhu to flush out gays. He was sentenced by the magistrate court to four months imprisonment and three strokes of the cane. He appealed to the High Court against his sentencing. In that High Court case, Tan Boon Hock v PP (1994) 2 SLR 150, the Chief Justice reversed the magistrate's sentencing and imposed a fine of only $2000.

The Chief Justice said:

… the present appellant had not forced his attentions upon an unsuspecting and vulnerable victim of the fairer sex. The complainant in the present case was a young male police officer who had taken active part in a police operation expressly designed to catch out homosexuals engaged in homosexual activity in a secluded area. It would be rigidly dogmatic of a court, in passing sentence, to refuse consideration of these factors.

The Chief Justice then added:

I found it somewhat disquieting that an accused arrested as a result of such police operations should subsequently be charged with having outraged the modesty of the police officer he came into contact with. The facts of the present case, as narrated in the statement of facts, appear to be representative of what occurs in such operations. The accused, who is homosexual, meets another man in an area well known for being a homosexual haunt. He strikes up a conversation with this other man and, on finding him responding in a friendly fashion, assumes him to be a fellow homosexual. He then invites this other man to proceed to a more private spot, the intention being to engage in homosexual activity of some sort; and although this may not be explicitly articulated, it must be plain to both parties having regard to the circumstances of their interaction. It is at least arguable that as far as the accused can discern, there would appear to be little question of consent being forthcoming from this other man. Of course, the other man then turns out to be a police officer in disguise.

Consequently, although a technical offence under s354 might have been committed, I am somewhat bemused that an accused caught in the manner described above should nevertheless be charged with the offence of outraging another's modesty; and should, furthermore, be sentenced not just to imprisonment but also to caning …

… having regard to the events leading to his committing the offence charged, a sentence of imprisonment and caning was quite unwarranted.

In sum, imprisonment is inappropriate and fine suffices for a charge under s 354 because:

(i) it is not a case where a male use criminal force to outrage the modesty of a vulnerable and unsuspecting female, and

(ii) in such undercover police operations to weed out gays, there is implied consent by the police to be touched.

It should be noted that the appellant in this case, did not appeal to overturn the lower court's decision but only against the sentencing. In retrospect in view of the Chief Justice's opinion in that case one wonders if the appellant should have appealed against the whole decision rather than the just the sentence.

It seems that since Chief Justice's opinion in Tan Boon Hock v PP, we have rarely heard of police operations being carried out. Even if there have been such operations since then, there have been no press reports documenting that gays were charged under s354 for outraging the modesty of police.

Section 354 requires the police or someone to be touched. But what if the police was not touched?

(3) Section 294A Penal Code (Obscene Act)
If the victim uses a symbolic gesture to signal intention to have sexual activity with the police decoy, he can be tried under s294A of the Penal Code, which covers the commission of any obscene act in any public place to the annoyance of others (subject to a maximum of three months jail, a fine, or both). From 1990 to 1994, there were six cases of obscene acts brought before the courts in this context. The accused were fined between $200-$800.

=Part IIB. Miscellaneous Offences (Public Order and Nuisance) Act=

The police can use s19 (soliciting in a public place) of the Miscellaneous Offences (Public Order and Nuisance) Act, which covers both prostitution and soliciting "for any other immoral purpose". This offence carries a fine of up to $1,000, doubling on a subsequent conviction, including a jail term not exceeding six months.

Leong has documented that from 1990-94, there have been eleven cases where gays were charged for soliciting. They were fined between $200-$500. But it appears from Lawnet that there have been no reported cases of persons being charged under s19. It does not follow, however that no persons were charged. They could have pleaded guilty and avoided trial, resulting in the absence of case law.

You might recall the One-Seven incident where three undercover policemen entered the gay sauna and bathhouse One-Seven on 23 July 2001 at about 1855 hours, climbed over a cubicle and arrested two men. They were charged under s20 of the Miscellaneous Offences (Public Order and Nuisance) Act which refers to "riotous, disorderly or indecent behaviour" in a public setting, liable on conviction to fine not exceeding $1,000 or imprisonment not exceeding one month. I understand the two men were each fined $1000 though I am unable now to verify their sentencing.

You may be curious as to why the deputy public prosecutor did not charge them under s377A for gross indecency or even s377 assuming they were caught having oral sex. The prosecutor has a discretion as to the provision under which he wants to charge the accused, and this decision cannot be appealed against. But there are guidelines for the exercise of discretion. For example, the seriousness of the offence, the track-record of the offender i.e. whether or not he had been charged or convicted previously; his educational qualifications and professional position and experience; his capacity to contribute to his Singapore's economy etc.

The curious thing about the One-Seven incident was that no identity cards were detained; upon arrest of the two men the police told the rest of the people there to continue to carry out what they had been doing. Note that it was not a raid. Apparently, the policemen had been trailing one of the guys for security clearance purposes. Before and after the One-Seven incident, there have been no reported cases of police raid or police entering the premises of any other gay saunas or bathhouses.

The authorities must be aware of the existence of such gay saunas and bathhouses and the activities that are being carried out there. Yet till today, there has been no reported arrest of or warning issued to any patron in or management of any of the gay saunas, bathhouses, bars or clubs on the ground that the laws governing homosexual conduct have been violated.

There is a curious disjunction between on the one hand, laws that criminalize homosexual conduct (whether enforced or not) and general societal disapproval of homosexuality and, on the other hand, the flourishing and if I may say, lawful, gay saunas and bathhouses.

Perhaps the explanation lies twofold: (1) a shift in government polices, and (2) a change in deployment of police resources.

(1) Shift in Government Policies
Lee Kuan Yew has said in a 1998 CNN interview that "what we are doing as a government is to leave people to live their own lives so long as they don't impinge on other people. I mean, we don't harass anybody." His answer was in response to a gay man's question on what the future for gays in Singapore would be. But Lee qualified his response by saying that "it's a question of what a society considers acceptable. And as you know, Singaporeans are by and large a very conservative, orthodox society, a very, I would say, completely different from, say, the United States and I don't think an aggressive gay rights movement would help."

Lee's words could signal a departure from the undercover police operation to weed out homosexuals that were prevalent from the early to the mid 90s. But it is terribly unclear what Lee meant by 'impinge'. If two guys hold hands along Orchard Road and could be clearly seen by straight people, does it amount to an impingement? If a member of public complains about this social impropriety to the press or police, could and would the police or government take action?

The other question is how long this lax attitude of the government would last. To answer this question, we need to understand the basis of Lee's statements. It is certainly not based on protecting the rights of privacy or equality of the gays in Singapore. The basis is most probably a pragmatic and economically driven one. If Singapore is known to oppress gays or have a sexually oppressive or repressive atmosphere, this is unlikely to attract the top foreign talents who are predominantly from western liberal democracies. At the very least, Singapore must appear to be tolerant.

(2) Change in the Deployment of Police Resources
In the light of the threat to Singapore's security posed by terrorism and other geo-political instability, police may have decided to use the limited resources they have to deploy them towards combating such security threat rather them use them for frivolous and wasteful undercover police operations to flush out gays.

Does this means that we gays should rest on our laurels? Unenforced unnatural offences law could and would still inflict considerable damage on gays.

(3) Unenforced Unnatural Offences: Implications
Sections 377, 377A stigmatise us. Laws not only punish and deter. Laws also embody values society considers as important. Unenforced unnatural offences laws embody the society's disapproval of homosexual conduct as unnatural and hence immoral and even iniquitous. Sections 377, 377A are basically saying that homosexual expressions of love and intimacy for each other are wrong and deserving of punishment.

Sections 377, 377A discriminate us as a class of presumptive criminals. U.S. courts, including the Supreme Court, presumed all homosexuals to be offenders of sodomy laws. Justice Antonin Scalia said in his dissenting judgment in the U.S. Supreme Court case of Romer v Evans that "if it is rational to criminalize the conduct, surely it is rational to deny special favour and protection to those with a self-avowed tendency or desire to engage in that conduct. Indeed, where criminal sanctions are not involved, homosexual orientation is an acceptable stand in for homosexual conduct."

Another U.S. Court held that ''a servicewoman's sexual orientation is compelling evidence that she has in the past and is likely to have engage in homosexual conduct.' (Ben-Shalom v Mash 7th Cir 1989). Another U.S. court said that sexual gratification with a member of one's own sex is implicit in the term 'homosexual'. (Gayland v Tacoa Sch Dist. 559 (1997)). U.S. gay law history is replete of countless examples of how gays are discriminated on the ground that they are presumptive criminals. (Christopher R Leslie (2000) 35 Harv, C.R.-CL L. Rev 103 Creating Criminals: The Injuries Inflicted by 'Unenforced' Sodomy Laws).

Have we been or are we treated as presumptive criminals by our local courts or public authorities? If yes, then we would and could be and have been discriminated when it comes to public and private employment, obtaining custody of children in divorce or separation.

Is it an indisputable and well-entrenched fact in Singapore that if you declare yourself gay and the government is aware of this, you are barred from joining the civil service or statutory bodies? Writings on the gay legal situation in Singapore have not covered this aspect. However, let me give you two examples that I am well acquainted with.

The first example is that of my good friend, who performed very well as a recruit during his Basic Military Training ("BMT"). BMT is mandatory for all male Singaporeans as part of Singapore's compulsory National Service. He earned the respect of the officers and his peers. He was selected to attend the Officer Cadet School ("OCS") to be trained as an officer.

After two months of gruelling training in OCS, he was expelled. The truth given was that due to an administrative lapse, the military overlooked his documents which recorded his admission that he is gay. Before military enlistment all males of the requisite age are asked during a medical check up whether they are gay. And if they admit to this, they can never hold a leadership position in army. Previously, gays would be automatically excluded from any combat vocation. But this policy has changed due to manpower shortage.

The second example is from a friend who was formerly from Safehaven and now working as a training manger in a particular government linked company. He told me that this company is given the military records of all male applicants applying to it. If you declare yourself to be gay during the enlistment medical check up, the company would automatically reject your application, regardless of how qualified and able you are. But the company would still interview these gay applicants only to reject them. The interview acts as façade of impartiality and fairness.

Despite these two examples, there are also other enlightening and gratifying examples where employers continue to retain their employees in spite of their sexual orientation.

At worst, s377 and s377A make presumptive criminals out of each one of us here. At best, we are treated as immoral people deserving of discrimination. In my opinion, the long-term goal of any gay support group in Singapore which believe in the advancement of social and political justice has to be the repeal of the unnatural offences provisions in the Penal Code.

Note that our Constitution has no right to privacy provision or anti-discriminatory provision based on sexual orientation. But discrimination based on sex i.e. gender is prohibited. Sexual orientation is not sex (gender) discrimination because both gays and lesbians, both males and females, are discriminated.

In the Hawaii Supreme Court, the 'sexual discrimination as a sex discrimination' argument succeeded. The court invalidated a statute that restricts marriages only to different sex couple. But this argument has been subjected to trenchant academic criticism (see, for example, Edward Stein, Law, Sexual Orientation, and Gender in The Oxford Handbook of Jurisprudence and Philosophy of Law, Coleman and Shapiro, editors, 2002). The court's decision in the end lacks any bite because a constitutional referendum amended Hawaii's constitution to give the state legislature the power to restrict marriage to the opposite sexes. There has been no constitutional litigation on discrimination.

=Part II (C). Others=

(1) Right to Lawyer
Singapore's Constitution guarantees us the right to a lawyer. Article 9(3) states that "when a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his own choice." But the question is when we can exercise this right. A senior Deputy Public Prosecutor told me that in practice, a person would not be allowed to consult his lawyer when he is arrested so long as the police could reasonably justify its action. In practice, depending on the complexities and seriousness of the case, for example in drug trafficking cases, the police could detain the accused and prohibit him from consulting a lawyer for a week or two.

(2) Right to Silence
Briefly, s121(c) of the Criminal Procedure Code ("CPC") states that a person must state truly the facts he knows. But he could refuse to say anything "which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture." This refers to our right to silence or privilege against self-incrimination. This right can be exercise when you are arrested by the police or when you are required to appear in a police station for investigation. But you should not exercise your right to silence when the police says to you that he is going to charge you or when you have been charged by the police. Section 122(6) of the CPC provides that you could reply to the charge. And it further states that if you hold it back till you go to the court, your evidence would be less likely to be believed. In other words, if you keep quiet, the court can and is likely to draw an adverse inference from your silence.

(3) 48 Hours Right
Article 9(4) of Singapore's Constitution states that "when a person is arrested and not released, he shall, witout unreasonable delay and in any case within 48 hours (excluding he time of any necessary journey), be produced before a magistrate and shall not be further detained in custody without magistrate's authority."

(4) Entrapment/Illegal Evidence
Police entrapment in the form of decoys are not illegal and the evidence obtained from such entrapment are admissible so long as the evidence is relevant to the court's determination and that the admission of evidence does not operate unfairly against the accused. The court has never questioned the legality of police's undercover operations to weed out gays or any of such similar operations for the same or similar purposes.

=Part III. Comparative/International Gay Law=

A. Lessons from the U.S.

U.S. Gay legal history teaches us two crucial lessons:

(1) Bias not Reason
The rationale underlying legal prohibition and political proscription of homosexuality are predominantly based on animus, biases or prejudices. For example, in the late 80s to late 1940s, there were laws punishing those who cross-dressed. Gender inversion was considered a crime and sickness. From the late 1940s to late 1950s, homosexuals were treated as sexual deviants. And being sexual deviants, they were associated or synonymous with paedophiles and sexual perverts. In sum, sexual and gender nonconformity was classified as a sin and aberration that deserved to be punished and suppressed. Countless professionals such as doctors and lawyers were fired from their jobs just because they were gays. President Eisenhower considered being gay a national security threat. There were wholesale arrests in pubs, bars and homes. Objections to homosexuality are usually not based on philosophically or scientifically sound justifications. The classic article on this is Princeton Professor Stephen Macedo's award winning article in Georgetown Law Journal in 1994 entitled 'Homosexuality and the Conservative Mind.'

(2) Politics not Law
The second lesson is that many of the legal and political reforms, such as the decriminalisation of sodomy laws and the enactment of anti-discriminatory laws, were initiated not by the courts or parliament but by the unceasing and fearless campaign by gay support groups.

Only when gays came out of their closets and formed a visible group and articulated their concerns clearly and visibly that judges and politicians were compelled to take notice of them and their demands. The lesson for all of us here is to emerge out of the apartheid of our closets and challenge prevailing anti-homosexual assumptions, norms and attitudes by simply being and declaring who we are. Powerlessness comes not from poverty or ostracisation but from invisibility. To me, the most effective way in the long term to eradicate or reduce the biases and prejudices of those who people who oppose homosexuality is to be visible: to allow them to know us in a personal and vivid way.

Laws are supposed to embody the values that society considers important. As such, they will include irrational values that are insupportable by facts, logic or science. The Chief Justice and our political authorities have said that homosexuality is still unacceptable by our masses. The morality of the masses is equated with the right morality. No justifications are given as to why this should be so and why homosexuality is immoral. To reform the law, we must first change the mentality of the society. To do that, deciding who to be out and how to be out is but a necessary and indispensable step to let those who discriminate us know that we are just as capable of commitment, love and service.

Finally, witnessing a sorry state of affairs when one is not in power is by no means a monotonous, monochromatic activity. It involves what Foucault once called "a relentless erudition," scouring alternative sources, exhuming buried documents, reviving forgotten (or abandoned) histories. It involves a sense of the dramatic and of the insurgent, making a great deal of rare opportunities to speak, catching the audience's attention, being better at wit and debate than one's opponents (Edward Said, Representations of the Intellectual, Vintage Books, 1996).

=B. Lessons from the Nordic Countries=

(1) Gradualness
The rights and privileges given to straight couples would not be extended to gay couples in the form of registered partnership laws until the following take place. Our priorities should be as follows. First, repealing laws that criminalized consensual sodomy. Second, the age of consent for homosexual and heterosexual sex is equalised. Third, laws have been passed that prohibit discrimination of gays in public employment or immigration, for example, should be passed.

(2) No evil consequences
Denmark, Sweden, and the Netherlands have given almost complete recognition to same-sex unions. But there are no reports that such same-sex recognition has resulted or contributed to the decline of the family or divorce or promiscuity or sexual transmitted diseases.

Ten years have past since Denmark legalised same-sex partnerships. But marriages between straight couples have been stable. There is also a drop in divorce rates. This only goes to disprove the wild allegation that legalising same-sex partnerships would cause the family to collapse or become dysfunctional.

The Nordic countries provide invaluable empirical date to disprove (or prove) the thesis of the homophobes or conservatives (see Darren Spedale, Nordic Bliss: The Danish Experience with "Gay Marriage", 1999).

C. 'International' Law
At the outset, it is problematic in deciding what constitutes international law. That presupposes the key question of what we understand 'international law' and 'law' to be. Is the judgment of European Court of Human Rights part of international law or is it just confined to regional law? Does the recommendation of a human rights commission form part of international law when it does not bind non-consenting states? I do not intend to go into these deep and crucial questions. Time will not allow me. For the present purposes, international law is defined as a set of developing norms formulated or applied by an influential regional body or organisation that has the potential of gaining widespread acceptance by many states. From this definition, laws that are not legally binding on other states apart form those states or persons who agree to be bound can still be considered laws.

ECHR: Dudgeon v U.K.

As a preliminary point, the European Convention of Human Rights and Fundamental Freedoms ("ECHR") is a comprehensive statement of all the civil and political rights that are shared by the peoples of Europe. Member states of the ECHR are obligated to comply with the ECHR.

In Dudgeon v United Kingdom, Jeffrey Dudgeon was a shipping clerk and gay activist in Belfast, Northern Ireland when he was interrogated by the Royal Ulster Constabulary about his sexual activities. He filed a complaint with the European Commission of Human Rights which declared his complaint admissible to the European Court of Human Rights, and on 22 October 1981 the Court agreed with the Commission that the criminalization in Northern Ireland of homosexual acts between consenting adults was a violation of Article 8 of the ECHR. Article 8 states: "Everyone has the right to respect for his private and family life, his home and his correspondence". But this right can be derogated by considerations of public health, security, safety and morals of a society.

The value for Singapore in this case is both limited and important. Limited because the case dealt with violation of Article 8 of the European Convention on Human Rights, a provision in a human rights constitution which finds no counterpart or analogous counterpart in Singapore.

Important, however, because arguments which were deployed in support of the criminalization of sodomy were rejected by the court as irrational and illogical. The impugned arguments are likely to be repeated by the Singapore government or judiciary should they be confronted with the issue as to whether to repeal the unnatural offences law. The impugned arguments that are rejected by the court and the reasons given for the rejection are as follows. There is no evidence to suggest that decriminalisation of sodomy would endanger the fabric of society and lead to its collapse. Homosexuality could not be said to cause or contribute to divorce or the collapse of families because family breakdown is caused by a multiplicity of factors such as adultery, circumstantial changes etc. There is no logic and principle in thinking that homosexuality would be the primary or predominant cause of family break up. Finally, it is wrong to say that homosexuals would corrupt young boys. A distinction must be drawn between homosexuals who are paedophiles and homosexuals who are not.

Singapore's Attorney General said in the Millennium Law Conference that "the development of human rights jurisprudence based on the European Convention on Human Rights 1955 (ECHR) and the International Convention on Civil and Political Rights (ICCPR) will impact on our criminal justice system in relation to the fundamental rights of the persons arrested and charged for committing crimes. … The courts in common law jurisdictions such as Canada, New Zealand, Hong Kong, South Africa, Zimbabwe and Belize that have incorporated the ECHR rights or the International Covenant on Civil and Political Rights (ICCPR) in their constitutions …. In the future our courts may have to consider the ECHR paradigm … and decide whether it suits our circumstances."

If the Attorney General could envisage the impact of ECHR on the fundamental rights of the persons arrested and charged for committing crimes in Singapore, is there is any reason in logic why other jurisprudence of the ECHR such as the decriminalisation of consensual homosexual sex will not impact Singapore? The South Africa Constitutional Court, Canadian Supreme Court and Hong Kong courts have adopted or applied the rulings of Dudgeon v United Kingdom. To reiterate what the AG said: In the future our courts may have to consider the ECHR paradigm … and decide whether it suits our circumstances.

=Part IV. Concluding Remarks: Anti-Homosexuality in Singapore=

In a 2000 survey conducted by Dr Vivian Lim from NUS's department of Organisational Behaviour, 413 students, aged 17-35, from three educational institutions in Singapore took part in the survey in October 1999. Nine out of ten said they would be disappointed if they realised their child was gay. eight out of ten said they would be upset if their brother or sister were gay(The Straits Times, 22 June 2000).

In a 2002 survey conducted by David Chan from NU.S., 1481 people were interviewed from Jan-June last year. Seventy-five percent of single people and 89% of married couples considered homosexual behaviour unacceptable (The Straits Times, 27 Sep 2002, at H2).

Don't be disheartened by the findings. Always question the methodologies deployed by these researchers. Ask yourself:

Out of the number of people in Singapore who could be eligible for the survey, ie they have the requisite mental capacities to appreciate the questions, how many were actually surveyed? How are the questions framed and phrased? Are they leading or open-ended questions? What is the time period which the survey was conducted? What are the educational, social and cultural backgrounds of the people who were surveyed? How reliable are the surveys? i.e. are they conducted face to face or through the internet? Are the answers recorded? What is the error margin?

I believe that now more than ever is a time of much hope and promise for all of us here. Let me reiterate what I said in the introduction: 50 years ago, it would have been absurd to think that so many countries round the world would repeal their sodomy or unnatural sex laws. Thirty years ago, it is inconceivable that parliaments in many parts of the world would pass laws that protect gays against discrimination. Lastly, 15 years ago, could anyone ever imagine that gay couples would be given substantially the same privileges and rights such as a straight couple, culminating in The Netherlands being the first country in the world to put a gay marriage on exactly the same legal, social and political footing as a straight marriage?

=See also=
 * Section 377A of the Singapore Penal Code
 * Police raids at Club One-Seven

=References=

=Acknowledgements=

This article was compiled by Roy Tan.