Sunday, 1 October 2023

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Repeal of 377a: An infringement on the rights of a minority, and unacceptable in the premise of an avowedly secular state

by TituStay

With the recent buzz vis-à-vis the review of the Penal Code of Singapore and the status quo of Section 377A of the Penal Code, both pro and anti LGBTQ camps have put forth their arguments on why 377A should be repealed or kept. Whilst I am not part of the LGBTQ community, nor do I actively support it, I take the view that 377A should be repealed simply because it is an infringement on the rights of a minority, and unacceptable in the premise of an avowedly secular state.

Those in support of keeping Section 377A tend to be religious believers of Christian or Islamic faith, and base their arguments on the notion of appeasing God, and carrying out God’s will.

Arguments have been put forth that according to the Christian Bible, homosexuality goes against God’s creation, and is unnatural and immoral. Many would hence argue that to appease God and to do what is right as a devout believer, 377A should be kept. Yet, there are certain flaws in such an argument.

To make things clear, I do not doubt or question their faith. However, in the context of Singapore, a secular state, religious belief by society at large, or by religious organisations, should not stymie or override the power and the ability for the state to protect its citizens and their freedoms, regardless of their beliefs.

There needs to be a separation between religion and the state. Singapore is no theocracy. Unlike states such as Iran, or the Holy See, who rule in the name of a higher being, and implements legislation based on such beliefs, Singapore is a diverse, secular parliamentary democracy.

With the Constitution guaranteeing the right to personal liberties, the rights of the LGBTQ minority should be protected, and they should be given the freedom to love without prosecution. Whilst it has to be understood that religious faith in which many hold close to them would indeed be fair justification for them not to support repealing 377A in their personal capacity, it should not be used as justification to pressure the government, as a partial, just and secular entity, to not repeal this law.

Recently, a video has been floating around cyberspace, entitled “Is this the Singapore you want”, warning that repealing Section 377A could lead to the “normalisation” of homosexuality which would eventually result in gay marriage becoming acceptable in Singapore.

The video further warns that pastors, bakers, florists, inter alia who refuse to be involved in gay weddings could be thrown into jail. Considering that the intention of this video is to exaggerate the ‘threat’ of homosexuality, and to use fear to compel society to block any potential attempts at the repeal of 377A, what it alludes to here is highly unlikely to be accurate. I find such attempts at inciting fear to be somewhat ironic.

This video warns that people who refuse to be involved to be involved in gay weddings be thrown into jail, which acts as the fear factor that compels people to support 377A, because of an over-exaggerated narrative that has been posited. However, one should consider that this over-dramatized threat of persecution and being sent to jail draws parallels to an already present reality for a segment of society, which traces all the way back to colonial rule.

Section 377A, an arguably archaic law from British rule, states how males who engage in gay intercourse be sentenced to a term which may extend to 2 years. This threat of persecution that many fear from such attempts to keep 377A is already a reality for some. One would hence need to understand that certain choices they make will have oppressive repercussions.

When groups of people lobby against the repeal of such an oppressive and discriminatory law, this would inadvertently make them oppressors of the LGBTQ minority as well, no matter how justified they may see keeping this law as, and no matter their ostensible moral high ground.

Although indeed, the government has repeatedly asserted that they will not actively persecute those who commits this ‘crime’, the fact of the matter is that 377A does criminalise the beliefs of some, and oppresses their freedoms. The fact that the law is still present serves as a reminder to those from the LGBTQ community that a tenet of what makes them human, their freedom and desire to love, is seen by the country as a criminal act.

Other proponents of the anti-LGBTQ school-of-thought tend to be more utilitarian and pragmatic, arguing that in the context of Singapore, a conservative, center-right society that upholds the almost sacrosanct notion of ‘family values’, laws should be put in place to ensure that these values remain protected and not corrupted by a ‘spectre of homosexuality’.

To be fair, this view has some merits, as indeed, many Singaporeans are conservative and may not be ready to accept this idea of LGBTQ. Opinion polls conducted by various independent groups and organisations tend to produce results that favour those in favour of keeping Section 377A, and this should be taken into account in any assessment of Section 377A or LGBTQ’s place in Singapore.

However, what this school-of-thought fails to accommodate is the fact that the rights of the minority has to be protected. In the study of national unity, given the context of a diverse country, one has to understand that the rights of the minorities should not be disregarded. Our diversity and the need to accommodate, to the best of our ability, the needs of the minority, is quintessential in our attempts to build a cohesive society.

Some may take the view that empty vessels make the most noise, and the reason why there is so much talk about repealing 377A is because the vocal minority speaks out, with a silent majority not in support of repealing 377A. However, as aforementioned, should the majority of society impose their will on a minority?

The repealing of 377A would simply mean greater personal freedoms for a minority of society who desire the freedom to love – this freedom that is enjoyed by most others. It confers upon them the rights and the dignity to do what they want in their private lives.

Contrary to popular (but somewhat fallacious) belief, this would not be a case of the minority imposing their views and beliefs on the majority, since it generally concerns the private lives of a certain segment of society. Society at large needs to learn to empathise with minority groups, and be more accepting of what others do in their personal lives, especially when it does not infringe upon the lives of the majority.

There has also been a view that Section 377A is present, and should remain as a law because it is meant to prevent the spread of the human immunodeficiency virus (HIV) and other sexually transmitted diseases (STDs) in Singapore. Undoubtedly, studies across the world have concluded that men who engage in coitus with other men are most affected by HIV. This is highly valid, and backed by scientific evidence and statistics as well.

However, the lack of legitimate enforcement is a flaw in keeping Section 377A to prevent the spread of HIV. As aforementioned, the government has mentioned many times that Section 377A is, and has not been enforced. As such, even if gay intercourse takes place, which could potentially result in the spread of STDs, there is no enforcement of the law, and this would not be an effective deterrence for gay intercourse.

Moreover, and more importantly, the keeping of Section 377A proves to ironically worsen the spread of HIV and other STDs. A TODAY article on 18 September 2018 highlights how advocacy groups such as Action for Aids (AFA) have asserted that repealing 377A would “significantly strengthen programmes to control the spread of [HIV and STDs] in Singapore”.

It argues that Section 377A is “discriminatory and stigmatises men who have sex with men as well as people living with HIV and Acquired Immune Deficiency Syndrome (AIDS)”. This creates barriers to early HIV testing and treatment, as men “fear that if they go for HIV testing, they will have to reveal they engage in illegal sexual activity” as mentioned by Professor Roy Chan from AFA.

The view posited here is a clear justification on why 377A should be repealed. Therefore, to suggest that 377A would help prevent the spread of HIV and other STDs would be flawed, and the repeal of this law could prove more beneficial for this community.

As a whole, whilst concededly, society at large may not be ready for what they could see as a tectonic shift away from their conservative beliefs, there is a need to empathise with the needs of the minority and be more tolerant, as it would be unjust for the majority to impose their own will on that of the minority.

Section 377A as part of the Penal Code, in my view, is unconstitutional and should be repealed. Yet, this will only address part of a larger problem. Apart from repealing Section 377A, society itself needs to have a change in their mindset, and look towards understanding and accepting the notion of LGBTQ and the freedom to love, no matter how much it may contrast with their own world view, especially since it is unlikely to directly infringe upon their own lives.

Singapore is a country that places inclusiveness in high regard, and it is my hope that the LGBTQ community would not be otherised under characterisations such as immoral or be labelled as criminals, and that Singapore can work towards creating a fairer and more just society, starting with repealing Section 377A of the Penal Code.

On a final note, it has to be understood why such legislation is present in the first place – archaic Victorian values that is arguably irrelevant to modern society, passed down via British colonial rule.

One also needs to understand why this legislation is not enforced in the first place – because it carries discriminatory tendencies that oppress certain segments of society. Lastly, there is a need to consider that Section 377A only carries a symbolic presence. Maintaining this law will not change the fact that male intercourse is de facto permitted in Singapore, due to the lack of active enforcement.

However, removing it would be a huge victory for the recognition, rights and dignity of these fellow Singaporeans that remain hidden in their closets, walking amongst us, with the incessant fear that they could be seen as immoral or criminals by the rest of society.

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