Left to right: Johannes Hadi, Johnson Ong Ming, Suang Wijaya and Eugene Thuraisingam. (Photo: Ching S. Sia)

Section 377A constitutional challenge: Expert evidence reveal sexual orientation cannot be changed at will, lawyers argue

The legal team advocating the repeal of Section 377A of the Penal Code — which criminalises acts of “gross indecency” between men — argued before the High Court on Mon (18 Nov) that sexual orientation is a product of genetic and environmental factors, and cannot be changed at will.

Lawyers Eugene Thuraisingam, Suang Wijaya and Johannes Hadi of Eugene Thuraisingam LLP, on behalf of applicant DJ Johnson Ong Ming, said that “the preponderance of scientific evidence shows that human sexual orientation ranges along a continuum, from completely heterosexual to completely homosexual”.

“In between are bisexuals who have varying degrees of preference for either sex,” the lawyers added.

“Homosexuals, like heterosexuals, cannot wilfully change their sexual orientation and/or attraction. There is no credible scientific evidence which supports the proposition that therapy aimed at changing sexual orientation (such as reparative or conversion therapy) is safe or effective,” they argued.

Consequently, the crux of the legal team’s argument is that Section 377A in the Penal Code violates two provisions in the Singapore Constitution, namely Article 9 of the Constitution which guarantees the right to life and personal liberty, and Article 12 which guarantees equal protection before the law.

Sexual activity between consenting adult males in private, according to Mr Ong’s lawyers, “neither harms nor impinges upon the rights or interests of any other persons”.

“Section 377A therefore violates Article 9 and 12 of the Constitution. It is absurd, irrational and discriminatory to criminalise a person on the basis of his natural, unchangeable identity and for non-harmful private acts,” they added.

The relevant section in the Penal Code also reinforces the majority’s “good old-fashioned discrimination” against male homosexuals, who are a minority in Singapore, according to Ong’s legal team.

“The role of our Constitution and the Court is to protect minorities against the absurd, irrational prejudices of the majority,” his lawyers argued.

Three medical experts were called by Mr Ong’s legal team in the immediate case, namely:

  • Dinesh Bhugra, Professor Emeritus of Mental Health and Cultural Diversity at the Institute of Psychiatry, Psychology and Neurosciences at King’s College London;
  • Jacob Rajesh, Senior Consultant Psychiatrist, Promises Clinic in Novena Medical Centre; and
  • Chris Beyrer, Professor of Epidemiology, International Health, Health, Behaviour, and Society, Nursing and Medicine at John Hopkins University.

The Attorney-General’s Chambers (AGC), the respondent in all three cases, called the following experts:

  • Cai Yiming, Emeritus Consultant in the Department of Developmental Psychiatry, Institute of Mental Health;
  • John Tay Sin Hock, retired geneticist and practicing doctor, former Head of Division of Human Genetics, National University of Singapore; and
  • Derrick Heng Mok Kwee, Group Director of Public Health Group in the Ministry of Health.

Little to no scientific evidence in support of proposition pinpointing socio-environmental factors as cause for homosexuality and bisexuality, according to medical experts on both sides

Experts from both sides concurred that “genetic and non-social environmental factors (like the womb environment) contribute to the causality of sexual orientation and/or attraction”.

“There is little if any scientific evidence which supports the proposition that social environmental factors (like culture, parenting) play any role in the causality of sexual orientation and/or attraction,” said Mr Ong’s lawyers.

One of the sources cited by Dr Cai is a study by Bailey, J.M., Vesey, P.L., Diamond, L.M., Breedlove, S.M., Villian, E,M & Epprecht, M. (in press), titled Sexual orientation controversy, and science, Psychological Science in the Public Interest, 2016, Vol 17(2) 45-101 summarises the position, which details the following:

No causal theory of sexual orientation has yet gained widespread support. The most scientifically plausible causal hypotheses are difficult to test. However, there is considerably more evidence supporting non-social causes of sexual orientation than social causes.

This evidence includes the cross-culturally robust finding that adult homosexuality is strongly related to childhood gender non-conformity; moderate genetic influences demonstrated in well sampled twin studies; the cross-culturally robust fraternal birth order effect on male sexual orientation; and the finding that when infant boys are surgically and socially “changed” into girls, their eventual sexual orientation is unchanged (i.e., they remain sexually attracted to females).

In contrast, evidence for the most commonly hypothesized social causes of homosexuality – sexual recruitment by homosexual adults, patterns of disordered parenting, or the influence of homosexual parents – is generally weak in magnitude and distorted by numerous confounding factors.

Citing Dr Cai’s report, the lawyers argued that it can be inferred that Dr Cai’s findings align with those of Dr Rajesh, who posited that “biological and non-social environmental factors influence sexual orientation”, and that “[e]vidence for the most commonly hypothesised social causes of homosexuality have generally been debunked”.

“First, Dr Cai states that “[s]exual orientation is no unchanging in everyone”, and cites studies showing that some individuals have been found to experience spontaneous and naturally-occurring changes in sexual orientation, as opposed to willful changes.

“Second, Dr Cai does not cite any literature or study supporting the proposition that sexual orientation can be willfully changed, such as through sexual orientation change efforts, conversion therapy or reparative therapy.

Mr Ong’s lawyers also argued that Dr Cai “has offered no credible evidence that sexual orientation can be willfully changed”.

“Studies showing that some individuals experience spontaneous and naturally occurring change in sexual orientation is nothing to the point,” they argued, citing two reasons, namely:

i) spontaneous and naturally-occurring change is not willful change as demonstrated by the literature cited by Dr Cai himself; and

(ii) the studies show that “close to 100% of homosexual males do not experience even any spontaneous or natural change”.

Secondly, said Ong’s lawyers, the literature cited by Dr Cai himself “supports the point that persons do not experience choice over their sexual orientation and/or sexual attraction”.

Ong’s legal team added that the literature cited by Dr Cai demonstrates that there is no “credible evidence” for the purported effectiveness of “conversion therapy, reparative therapy, and other forms of intervention to change sexual orientation are effective”, which have been known “present a significant risk of harm” to individuals undergoing such interventions.

Genetics and other biological factors, including non-social environmental factors, contribute strongly to the development of sexual orientation

Another source cited by Dr Cai is a study by Roselli, C.E. titled Neurobiology of Gender Identity and Sexual Orientation, published in Journal of Neuroendocrinology, 2018, which states the following:

Most people experience little or no sense of choice about their sexual orientation. There Is no scientifically convincing research to show that therapy aimed at changing sexual orientation (ie, reparative or conversion therapy) is safe or effective. The origin of sexual orientation is far from being understood, although there is no proof that it is affected by social factors after birth. On the other hand, a large amount of empirical data suggests that genes and hormones are important regulators of sexual orientation…

The data summarised in the present review suggest that both gender identity and sexual orientation are significantly influenced by events occurring during the early developmental period when the brain is differentiating under the influence of gonadal steroid hormones, genes and maternal factors. However, our current understanding of these factors is far from complete and the results are not always consistent…

…Our current understanding suffers from many limitations in the data… Despite these limitations, the existing empirical evidence makes it clear that there is a significant biological contribution to the development of an individual’s identity and sexual orientation.

Ong’s lawyers pointed out that Dr Cai accepted the proposition that “it is not disputed by experts in the field that genetics has some contribution to the causation of homosexuality”.

Secondly, the lawyers highlighted that Dr Cai cited, in approval, papers which conclude that “there can be little doubt that [sexual orientation] is influenced by environmental factors”.

“The “environmental factors” referred to by the papers cited by Dr Cai are non-social environmental factors such as the womb environment, not social environmental factors,” Mr Ong’s legal team highlighted, adding that Dr Cai has already cited “various studies and literature pointing to genetic and non-social environmental factors of sexual orientation”.

Dr Cai, according to the lawyers, also cited studies indicating that “hormones play a part in the causation of sexual orientation”, and “the fraternal birth order effect” play a role in shaping a person’s sexual orientation.

Mr Ong’s lawyers also rejected Dr Tay’s assertion that cultural and social environmental factors are also likely to play a role in determining sexual orientation, as the expert has cited “no material” that supports such an assertion.

“This assertion is also demonstrably false,” Mr Ong’s lawyers argued.

The closed High Court hearing on Mon was the second out of three cases to be presented against Section 377A this month.

The current cases, according to a statement by Mr Ong’s legal team, set a precedent in examining legal questions on the nature of sexual orientation, as “expert evidence” is now presented “before the courts”.

Previously, the court was only asked to take judicial notice of scientific facts which required a different legal test, Mr Ong’s legal team added.

The AGC began its submissions on Mon, and will conclude its submissions at the next hearing on Wed.

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