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07 May 07
In her Straits Times piece “Decriminalising homosexual acts would be an error” (see below), Professor Yvonne Lee sets out two tests for the constitutional validity of discrimination against certain sectors of society, in this particular instance against homosexuals: One, that the the classification must have a rational basis and, two, that the law must serve a legitimate purpose which is reasonably related to the basis for the classification.
In the first instance, it must be remembered that there is no rational basis for such a classification because the law itself is outmoded as the recent legislative amendment to decriminalise “unnatural sex” shows.
Of course, I should not have to point out that many heterosexuals engage it “unnatural sex” as much as homosexuals do. What is “saucy” for the goose is also “saucy” for the gander. It is inherently unfair to outlaw a practice for one group while allowing that very practice for another. This is where Professor Lee’s contention for “acceptable discrimination” breaks down.
Furthermore, one’s sexual orientation is for one to choose. The ability to choose defines one’s sense of being. It is the right of an individual to self-determination. Take it away and you are left with a corpus without spirit or mind. And just as heterosexuals are left free to determine the lifestyles they want to lead (for example, turning to vegetarianism, taking up extreme sports, or exercising some New Age belief and practice) why should homosexuals be deprived of their right to self-determination? Even transsexuals are not prohibited from altering their gender.
The fundamental right of the individual to pursue his or her natural inclination when they do not interfere with the rights of others is paramount.
Further, the don’s statement that the “law should not facilitate acts which threaten public health” is just as problematic. Under such a principle, should we also not prohibit the sale of tobacco products and ban smoking? After all, it is undisputed that smoking is a public health hazard which affects smokers and non-smokers alike.
She also makes the argument that sodomy is an unhealthy act that carries higher risks of sexually transmitted infections and hence should be disallowed for gays. This is itself highly discriminatory as many lesbians and heterosexuals also practice sexual acts that gays perform. This is precisely why Section 377A violates the equality provision.
Professor Lee also has a problem with setting age limits for the practice of homosexual acts. Again, if the minimum age can be set for heterosexual practices, what is the difficulty of doing the same for homosexual practices? Setting the minimum age is not license for one individual to rape another just because both parties are over the age limit. It is to ensure that minors are protected. How does setting the age limit for homosexual acts be detrimental to society? Many acts, such as drinking, driving and voting, specify age limits, why should homosexual acts be any different?
To say that gay-rights activists will seek to “mainstream” the homosexual agenda is to completely miss the point. The question should be whether it is right or wrong to continue suppressing the voice of the homosexual community and the attendant discrimination, not whether the lobbyists seek to mainstream their agenda. This type of argument was used against the blacks in America decades ago when African-Americans were discriminated against. Going by Professor Lee’s logic, whites in the US should be absolutely appalled by the prospect of having a black president.
It is most pernicious that the Professor compares homosexuality with bestiality and paedophilia. We are discussing the rights of a community who want their lifestyles decriminalised, in other words, that they not be made criminals simply for who they are. Paedophiles force themselves on children, homosexuals practice their sexuality between consenting adults. The difference is quite clear.
While it remains “unscientifically unproven” that individuals are born gay, there is a substantial body of evidence that supports the position that people are gay by nature. And since when is legislation of societal behaviour in Singapore dependent on scientific proof? Was it scientifically proven that better-schooled women produced smarter babies? Did that stop the social-engineering that took place through legislation in this country? This is the mother of all discrimination and the father of all irrationality.
And contrary to professor Lee’s argument, it does not follow that if society accepts gays for who they are by decriminalising homosexuality, this will inevitably lead to the sanctioning of same-sex marriages. A great many liberals and civil rights enthusiasts in the West support the non-discrimination of gays and even civil unions, but not gay marriages.
Professor Lee’s point about religious leaders having the right to say to their congregations that homosexuality is wrong is well taken. Their right to express themselves should also be defended. Free speech is a dialogue amongst differing, and very often passionate, views. It is not a strident monologue delivered by the majority.
In the last paragraphs of her article, Professor Lee rubbishes the comparison between adultery and homosexuality, stating that the former does not “foist” its lifestyle on the public unlike the latter. It must be pointed out that adultery presents a far greater threat to the institution of the family than homosexuality. Yet, escort agencies and massage parlours openly advertise for business, and they do not restrict themselves to singles. And it is no secret that prostitutes openly ply the lorongs of Geylang in search of clients, many of whom can be presumed to be married with kids. Why does Professor Lee not call for prostitution to be made illegal in Singapore and actively seek the demise of the sex trade?
The truth is that if a heterosexual male is inclined to pay for sex, he will know where to seek it. If he is not, then he will not be moved even if prostitutes paraded themselves before him. Similarly if he is not attracted to gay sex, no amount of cajoling or “foisting” will make him want to go to bed with another man.
In the end, it is not that the “homosexual agenda” should dictate law reform but that basic civil rights are a necessary part of an open and thriving multicultural Singapore. Minority rights like homosexual rights are fundamental constitutional rights which must be protected and this is where constitutional law ought to play its active role. If the Malays and Indians are, in principle, not to be discriminated against in this country, then that principle should be extended to the gay community as well.
The fundamental question is not whether one finds homosexuality morally offensive, it is whether the concept and practice of non-discrimination, like justice, should be extended to all.
Finally Constitutional Law in Singapore can only evolve if law professors make themselves available for debate. It is crucial that the Faculty of Law at the National University of Singapore not become a cloistered institution but one that seeks to grow in breadth and depth. To do this an open debate on this issue is essential.
M Ravi is a Singaporean lawyer and has been involved in several civil rights issues and cases including the legality of the mandatory death penalty in Singapore.
Decriminalising homosexual acts would be an error
Yvonne C. L. Lee
The Straits Times
04 May 07
Readers of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.
The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.
This is an over-simplistic reading of the equality clause.
Firstly, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.
Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.
Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.
To view the issue of S377A exclusively as a matter of equality omits the broader context — that rights can clash with other rights and community values.
When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.
Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.
Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.
Recent developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:
+ If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an ‘alternative lifestyle’.
+ The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.
+ The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an ‘alternative lifestyle’, homosexual lobbyists will seek for this to be endorsed and ‘mainstreamed’ into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that ‘sexual orientation’ should not be a basis for discrimination is problematic. ‘Sexual orientation’ is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is ‘born gay’ is scientifically unproven.
+ An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend ‘hate speech’ laws to the Bible and Quran.
People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely ‘different’. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.
+ The final step involves attempts to redefine ‘marriage’, the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of ‘marriage’ – no longer a union between man and woman but includes ‘same-sex marriage’. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative ‘reproduction’ methods.
The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.
While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.
The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.
S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.
Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore’s multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.
The writer is an assistant professor who teaches company law and constitutional law at the Faculty of Law, National University of Singapore. The opinions expressed are the author’s own.