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On repealing Section 377A – Part 2: Imbalances in the law

discriminationBy Aloysius Chia

In an earlier article, I have attempted to examine two arguments that support the retention of Section 377A – that repealing it would lead to a slippery slope of morality, and the promotion of homosexuality – and how these arguments are problematic.

Consider the third common argument: That homosexual acts will lead to consequences such as diseases, and that accepting homosexuality, either through our way of life, or through a repeal of the law, will lead to undesirable health issues.

The problem with this argument is twofold. First, undesirable health diseases (such as HIV/AIDS) are not just caused by homosexual sex.

Second, why should undesirable health issues be under the purview of the penal code? How would having a law that punishes for homosexual sex, prevent sex from homosexuals – who in any case are homosexuals and are attracted to the same sex – resolve health issues or make them more effective?

In many instances of health issues, such as easily spreadable diseases like dengue fever and SARS and Ebola now, it is practical and effective to prevent these diseases through controlled measures made by health authorities, coordinating with other agencies, companies and the public, with minimal disruption to the conduct of life.

Laws are not enacted to marginalize people based on the fact that this disease spreads through human interaction, for many people who obtain these diseases did not know or expect to get them, whereas those who spread them did so unintentionally. (Sure, there are some who do, but should this then be the basis for assuming all do?) It is the attribute of the disease, not of the human being, that causes it to spread.

Therefore, it seems as if it is the mere fact of being a homosexual is driving the law, rather than the fact that the penal code should contain laws that should have a preventable element, and an enforceable one. The preventable element is highly tenuous, since to homosexuals having sex with the same sex is natural to them, and they will continue to do so in so far as they are homosexuals; whereas the enforceable one is not just impractical, there is no way the law can prevent all homosexual sex from occurring, making the law merely symbolic. Both seems not just intended to prevent or enforce, it seems like the true intention of the law is to stop homosexual sex altogether.

A very important question then is to ask why this law that punishes and sanctions homosexual sex, saying that it might lead to undesirable health consequences, does not punish heterosexual sex, since heterosexual sex also leads to the same kind of consequences as homosexual sex. Heterosexuals are also able to obtain, and do, spread HIV/AIDS. Should this be reason to enact a law that punishes them? Should the law then punish everybody? It seems like those who use this argument is not concerned at all that there should be consistency in treatment as a means of procuring justice.

Racism and anti-LGBT similarities

How then does being an anti-LGBT person who does not want to repeal the law citing the above reason relate to racism? In racism, substantive incentives and sanctions are made on the basis of skin colour or some category of ethnicity judged upon the external traits of a person. This external trait is usually a physical feature such as skin colour, the size of the eyes or nose, the sound of one’s language, or the style of dress influenced by ethnicity, that are then taken to signify a complete range of behaviour which has nothing to do with those traits. These external physical traits are made to judge and presume behaviour, usually of a restricted type that attempts to stigmatize the person, usually in a negative and damning way.

If the above reasons are cited as reasons for not repealing the law, based upon some supposed trait that has the quality of being external – the fact of being a homosexual – then it shows clearly how these sorts of reasons have little difference from those used in racist rhetoric. In retaining the law, the fact of homosexuality is reason to make exclusions, in this case, punishment, before a person’s culpability. Even if it is claimed to not be enforced, the effect of the law remains, and it can be used anytime to claim and secure punishment.

The problem of the above is not so much the fact of stigmatization, though that may be very bad in itself, it is that the reasons that this stigmatization is confident it is rationally based on is completely full of loopholes, weaknesses, and presumptions. The presumptions are not merely technical errors, they are revealed to be based upon certain pre-conceived, initial judgements and foundations that are in fact, no different from a racist person’s judgement on an external trait. This external trait is justified as the basis for retaining the law, as a means of discrimination that is no different from discriminating based on race.

What this means – and this is the most important point in this article – is that the ideals of a multi-racial, diverse, fair and just community for all, regardless of race, language or religion, is undermined, since it shows that discrimination is up to certain definitions, instead of based on a complete one, that is applied consistently.

The key question that needs to be asked to those who wish the law to be retained, and this is important for who those who believe that a country is just only when its laws are, is this: Is the treatment of all under the law, regardless of race, language or religion, based on justice and equality, or based on rhetoric?