Repeal 377A, then what?

In his 2022 National Day Rally speech on Aug. 21, Prime Minister Lee Hsien Loong said Singapore will repeal Section 377A.

Section 377A of the Penal Code criminalises sex between men. It is a colonial-era law introduced by the British in 1938.

Parliament last debated whether to repeal Section 377A in 2007 which led to fierce arguments by MPs on both sides

Explaining the rationale for repeal, PM Lee explained that societal attitudes noted toward gay people have “shifted appreciably”.

PM Lee also noted that the repeal is timely as there is a significant risk of the law being struck down by judges in future legal challenges, and it would be unwise to ignore this and do nothing.

An example was this recent case which was thrown out by the Court of Appeal in February this year.

Over the years, various parties have filed constitutional challenges against S377A-citing mainly Articles 9 & 12 of Singapore’s Constitution, to argue that the law discriminates against LGBT individuals. 

Singapore’s Constitution:

Article 9 (Liberty of the Person): “No person shall be deprived of his life or personal liberty save in accordance with the law.”

Article 12 (Equal Protection): “All persons are equal before the law and entitled to the equal protection of the law.”

What is 377A?

In Singapore, the Penal Code of the Straits Settlement (IPC), was enacted in 1871 during colonial administration. It mirrored the Indian Penal Code and was the primary criminal statute in Singapore.

The IPC contained section 377- “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” would be punished with imprisonment or fines.

According to Enze Han and Joseph O’Mahoney, who wrote the book British Colonialism and the Criminalization of Homosexuality, British rulers introduced such laws because of a “Victorian, Christian puritanical concept of sex”.

“They wanted to protect innocent British soldiers from the ‘exotic, mystical Orient’ – there was this very orientalised view of Asia and the Middle East that they were overly erotic. They thought if there were no regulations, the soldiers would be easily led astray.”

Section 377A was tabled as part of an amendment bill in 1938 by the British colonial government, as it reflected the moral attitudes and social norms that prevailed back then. It was generally believed to have derived from the British government’s desire to “safeguard” public morality by prohibiting homosexual activity in the Straits Settlements. 

And with documents dated between the 30s to 40s (which were declassified recently), showed that the legislative provision was very much in response to specific examples of civil servants being caught associating with male prostitutes.

Although Singapore kept Sections 377 and 377A after independence in 1965, the Government repealed Section 377 in 2007 after a comprehensive review of the Penal Code.

A new law was instituted in its place, criminalising sex with a human corpse.

Section 377A was retained.

So repeal, then what?

In his NDR speech, PM Lee said it is “timely to ask ourselves again the fundamental question: Should sex between men in private be a criminal offence?”

He noted while Singaporeans remain broadly a conservative society, gay people are now more accepted, especially among younger Singaporeans.

Thus, repealing 377A is the right thing to do and “will bring the law into line with current social mores, and I hope, provide some relief to gay Singaporeans” he added.

Along with this widely anticipated repeal of 377A, the Government will also amend the Constitution to uphold and safeguard the definition of marriage between a man and a woman. By taking this unprecedented step to protect traditional marriage, the definition of what constitutes a marriage, will not be challenged in court.

PM Lee further explained the Government has no plans to change the existing definition of marriage or any of the policies that rely upon it, such as those on public housing, education, adoption rules, advertising standards and film classification.

In its statement to media, the Ministry of Communications and Information reaffirmed the stand that the repeal of 377A will not mean the tone of society will change.

Media content containing lesbian, gay, bisexual and transgender (LGBT) themes will continue to warrant higher age ratings.

The Ministry of Education also released a statement to stress that existing family values and social norms will remain anchored in education policies and curriculum. These include family as the foundation of Singapore’s social fabric and marriage defined as one that is between a man and a woman.

PM Lee cautioned that while Section 377A is fundamentally different from the tudung issue, it has to be handled just as carefully. No group should insist on all they want. PM Lee called on all sides to exercise restraint and careful consideration “because that is the only way we can move forward as one nation together”.

“For some, (the repeal of 377A) will be too modest a step. For others, it will be a step taken only with great reluctance, even regret. But in a society where diverse groups have strongly held opposing views, everyone has to accept that no group can have things all their way,” he said. 

PM Lee said there will be a full debate when the legislation is brought to Parliament.