The curious case of gay rights in Singapore

The new constitutional amendment in Singapore means gay rights activists will again need to convince the public that complete equality needs to be the norm

As the New Year dawns, gay Singaporeans have much to look forward to and a lot more to fight for. On October 20, 2022, the Singaporean Government introduced two new bills that, if enacted, would have a dual effect. The first bill proposed the repealing of Section 377A of the Singapore Penal Code which criminalised same-sex conduct between males; and the second bill proposed the introduction of a new “Institution of Marriage” clause as an amendment to the existing constitution that would clarify that Parliament — and not the courts — had the sole right to make laws to “define, regulate, protect, safeguard, support, foster, and promote” the institution of marriage. Both these bills were debated together on November 28, 2022 and put to a vote separately. Minister of State for Home Affairs and Social and Family Development, Sun Xueling said that both bills were drafted to find a middle path between the demands of gay rights activists and conservatives. While gay rights activists demanded legal equality, conservatives were worried about the effect that same-sex decriminalisation would have on Singapore’s traditional social norms, especially the institution of the family. Thus, the two bills offered a compromise that the government hoped would satisfy both groups — repealing Section 377A would ostensibly appease gay rights activists, and limiting the court’s power to redefine marriage would assuage conservatives. To quote Sun Xueling, “Let us be united in wanting Singapore to be a home for all, a tolerant and inclusive society where all Singaporeans feel a sense of dignity and have collective confidence in our future.”

On November 29, 2022, both bills were passed by an overwhelming majority. Same-sex conduct between men is no longer a crime in Singapore but the path towards legalising same-sex marriage will remain hard because activists cannot rely on courts to mount legal challenges — a path they had initially chosen to challenge Section 377A, and one that lawyers around the world in countries as diverse as Brazil, the United States, Taiwan, and Slovenia (to name just a few) have adopted to successfully legalise same-sex marriage.

A background of Section 377A

The origins of Section 377A in the Singapore Penal Code date back to the adoption of Section 377 in the Indian Penal Code (IPC) by the British government in 1860. Section 377 eventually made its way to Singapore in 1872 as part of the Straits Settlement Penal Code that was modelled after the IPC. As Singapore began liberalising in the late 1900s and early 2000s, many Singaporeans were shocked to discover that a law like Section 377 existed that criminalised masturbation and fellatio among heterosexual people. Hence, in 2007, Section 377 was removed by the Parliament. But Section 377A stayed in the books and proved harder to repeal.

In 2010, the first judicial challenge to Section 377A was made in Tan Eng Hong vs Attorney General. Here, the Court of Appeal held that while plaintiffs were allowed to mount legal challenges to laws they deemed constitutional, Section 377A would not be struck down. The authority to make this change, said the Court of Appeal, lay with the legislature.

Energy dampened after that judgement. However, after the Indian Supreme Court handed out its landmark ruling in Navtej Singh Johar vs Union of India (2018) which fully decriminalised adult, private, and consensual same-sex conduct, Singaporeans initiated an online campaign called #READY4REPEAL that urged the government to modernise its penal code during the Penal Code Review process — an extensive endeavour in which the government scrutinises and recommends changes to the Singaporean Penal Code. This review was significant because the last one occurred more than a decade ago.

However, despite citizens’ vocal demands for change, the government excluded Section 377A from the scope of the review entirely.

Thereafter, three individuals — Bryan Choong, Johnson Ong, and Roy Tan — filed petitions challenging Section 377A. However, none of them succeeded and the courts held that a previous 2014 Court of Appeal decision would stand. This was the 2014 case of Lim Meng Suang and another vs Attorney-General in which a three-judge bench ruled that Section 377A did not violate the fundamental rights provided under Article 9 (right to life or personal liberty), and Article 12 (right to equality) of the Singaporean Constitution. The court went on to state that even though the Indian Supreme Court took an expansive view of the Right to Life (covered under Article 21 of the Indian Constitution after which Singapore’s Article 9 is moulded), the same could not be applied to Singapore because of differing “social and economic conditions”. Thus, it should come as no surprise to anyone that India’s Navtej verdict four years later did not help persuade Singaporean judges. Moreover, given that the Indian strategy of gay rights advocacy has relied heavily on litigation, this strategy would not work anyway for Singaporean activists following the passage of the constitutional amendment on marriage. Thus, while the Delhi High Court hears petition after petition on same-sex marriage (an issue that will eventually reach the Supreme Court), gay rights activists in Singapore will have to find a different path — one which will undoubtedly be much harder and will require focused government lobbying and greater public engagement.

It should be noted that along with current Prime Minister, Lee Hsien Loong, his potential successor, Lawrence Wong also opposes same-sex marriage. When asked about whether there was scope for changing the family law in the near future, Wong unequivocally said, “This will not happen under the watch of the current prime minister, and it will not happen under my watch — if the PAP were to win the next general election” (PAP stands for the ‘People’s Action Party’ one of the world’s longest-ruling dominant parties, having won every general election since the country’s independence in 1965. According to political scientists, Diane K Mauzy and R S Milne, the PAP is “centre-right” aligned).

The difficult road ahead

Between May and June of 2022, Ipsos, a global market research company, conducted a nationally representative survey of 500 Singaporean Citizens and Permanent Residents aged 18 and above and asked them about their attitudes towards Section 377A and other aspects of same sex-relationships.

The survey found that social attitudes on these issues had evolved progressively. The number of respondents opposed to Section 377A increased from 12% in 2018 to 20% in 2022, while those who supported the Penal Code fell from 55% in 2018 to 44% in 2022 (while this is impressive, it still shows that a greater percentage of people support the colonial legislation than oppose it). As for same-sex relationships and parenting, responses were sharply divided, with 51% agreeing that same-sex couples are just as likely as other parents to successfully raise children, and 49% agreeing that same-sex couples should have the same rights to adopt children as heterosexual couples.

A couple of years ago, these numbers would have been far less, however, it still shows that support for gay rights is restricted and greater public support for same-sex couples is needed if any legislative change is to occur. As anthropologist Chris Tan points out, movements like Pink Dot have succeeded in Singapore because of their strategic use of avoiding the language of individual rights (as commonly adopted in the West) and instead, deploying the familiarity of gays and lesbians as kin “as someone’s sons and daughters” to bolster public support. As the years went by, participation in Pink Dot’s events grew from 2,500 participants in 2009 to 26,000 in 2014. Pink Dot played a major role in galvanising the masses around repealing Section 377A; and with this law out the door now, their strategy will now need some recalibrating.

The new constitutional amendment now hangs as the sword of Damocles over the heads of gay rights activists who will once again need to convince the public that complete equality needs to be the norm in Singapore. Given the deeply conservative hold of the PAP and the sharp public divide on same-sex marriage and parenting rights, the work ahead for activists is long and hard, and will unlikely bear results in the near future.

(The author is a Programme & Communications Manager at the Vidhi Centre for Legal Policy and Nyaaya and can be reached at [e-mail])