Religion, Retention & Rights: The Way Forward for Singapore’s Gay Movement & The Repeal of S377A

Daryl Yang

About a week ago, The Online Citizen published an article titled “Is the PAP government trading gay rights for Christian support?” The author suggested that S377A of the Penal Code, which criminalises male same-sex sexual intimacy, remains on the books because “the government does not want to lose the seemingly significant Christian support base”.

Screen capture from The Online Citizen’s article

There have been much ink spilt on the problems with the retention of S377A, be it the psychosocial harms it inflicts on LGBTQ individuals or its allegedly unconstitutional arrangement in relation to the separation of powers. However, what seems to have received significant attention is the possibility that one of the fundamental tenet of Singapore’s nationhood, secularism, is under threat.

In this piece, I suggest that to focus on this apparent threat is to distract ourselves from the more fundamental problem that undergirds the retention of S377A, which is the difference in Singapore society over the moral relevance of homosexuality. The quarrel over Singapore’s secularism is a related but distinct conversation that should not be conflated, and is something that deserves greater reflection and scrutiny.

The Threat of Religious Incursion into Singapore’s Secular Society

An argument for the repeal of S377A goes that if secularism is seriously upheld in Singapore, then the law should obviously be repealed because there is no sincere or sufficient reason for retaining it. The retention of the law proves that the government is privileging religious morality, something which should obviously be prohibited in a secular society.

This perspective is reinforced by the strong resistance to the possibility of the repeal of S377A by religious communities, both Christian and Muslim. Just a few days ago, the National Council of Churches of Singapore released a statement opposing the repeal of the law while MUIS also reiterated that it does not “agree nor approve the pervasiveness of the LGBT lifestyle, and we cannot agree to the efforts in promoting such a lifestyle”.

In addition, the Prime Minister Lee Hsien Loong himself acknowledged that the retention of S377A is in part due to “many of the people who oppose [the repeal and who] do so on very deeply held religious convictions, particularly the Christians and the Muslims”.

Invoking the MRHA to protect secular Singapore

The concern that secularism is under threat in Singapore has led some individuals to attempt to salvage secularism by invoking the Maintenance of Religious Harmony Act (MRHA) in response. It was argued that while “[r]eligious groups and individuals are entitled to their views”, religious organisations “should not be allowed to influence legislative or political issues, as guaranteed by the MRHA”.

The MRHA is a legislation with its own history of state oppression. As Jothie Rajah noted in her book Authoritarian Rule of Law, the MRHA is a “silencing ‘law’ that built upon the coercion of detaining certain Catholic social activists under the Internal Security Act”. Enacted in the aftermath of the Marxist Conspiracy in the late 1980s, this statute is suggested to be “repressing another potential civil society leader: the Catholic Church”.

Newspaper article from during the time of the Marxist Conspiracy (Source: Remembering 1987)

According to Rajah, the MRHA is founded on the following formula, “social action = politics = disaster for the nation”, where politics is defined broadly to narrow the space available to religious groups. By invoking the MRHA, this formula then becomes reified as citizens themselves imbibe and reinforce the logics of the law.

However, while we may disagree with the position taken by Christian and Muslim organisations, is the solution to call for the complete exclusion of these groups from participating in civil society?

Principally, the question then is whether religion enriches or threatens the stability and flourishing of Singapore society? Can and should religious groups participate in civil society? Historically, many of them have, advocating for migrant workers, the poor and the marginalised.

The more conservative and perhaps insular direction of religious organisations can perhaps even be traced to the enactment of MRHA. It is then rather ironic that the MRHA is now being used to respond to the very behaviour that the MRHA has cultivated itself.

What Singapore’s model of secularism does and should look like

In any case, this points to a more fundamental question as to the role and place of religion in our society.

Some may prefer a complete separation of religion and politics, much like the model of laïcité in France. This probably underlies the motivation of those who wrote to MHA calling for an investigation on the basis of the MRHA.

However, given that Singapore is one of the most religiously diverse countries in the world with a large proportion of the population identifying themselves as adherents to a variety of different religions, is it possible or desirable to adopt such a strict separation between state and religion?

Apart from whether religious organisations should be permitted to participate in civil society, it is also worth reflecting on whether religious citizens themselves are free to hold whatever religious beliefs that they may have. Put simply, is it acceptable in our sociopolitical landscape for an individual to believe that homosexuality is morally unacceptable or wrong?

I think the answer to that question is “yes” if the right to freedom of conscience and religion are to have any true substance or meaning.

At the same time, while these rights are absolute ones, the right to manifest those beliefs is a separate question altogether and can be qualified by competing interests of public order, public morality and public health.

The real problem with the retention of S377A

The problem with the retention of S377A then is not with the fact that a majority of Singaporeans continue to hold beliefs that regard homosexuality as abhorrent or immoral. They are, after all, free to believe what they will.

The problem lies with the process of political deliberation and decision-making.

While majoritarianism is a general principle that guides the political process, another fundamental feature of a democratic system is the protection of minority groups from the tyranny of the majority.

To those of us who support the repeal of S377A, we would often proceed from the premise that the LGBT community is a legitimate minority that deserves the protection of the state. Obviously then, the criminalisation of homosexual sexual intimacy runs contrary to this position.

Yet, that is exactly the state of affairs in Singapore though it is not entirely an irrational position for the Government to maintain. As Lynette Chua noted in her research on the gay movement in Singapore,

“[T]he Singaporean state does not oppose homosexuality and gay organizing simply on morality grounds. The cultural norms helping to shape gay activism’s tactics reveal that the state and ruling party are ultimately most concerned with the ability to monopolize, and preserve existing arrangements of power. Morality concerns become a factor primarily when the state worries that the majority of voters still oppose homosexuality, and may withdraw support for the PAP.”

Thus, while the existing legal arrangement with regard to S377A may seem exceptionally messy and uncharacteristic of the Singapore Government, it is not when viewed from the vantage point of pragmatism or realism.

To answer the question posed by The Online Citizen’s article, it seems then that the Government is indeed “trading” gay rights for the support of the electorate, Christian or not. After all, the Christians may be the loudest constituency against the repeal of S377A but they are not the only ones either.

To characterise this however as some religious conspiracy is distracting at best and may even be dishonest in the absence of any real evidence to suggest that the Government is retaining the law to suit the religious beliefs of its leadership or a specific constituency.

Although it is frustrating and even infuriating that what may be regarded as an unjust law remains on the books, anger and indignation are insufficient to effect change. In addition, this is not a unique situation in Singapore and we are not in any way “lagging behind” other countries when things are put into perspective.

Consider that anti-sodomy laws were only held as unconstitutional in the USA in 2003 with the Supreme Court ruling in Lawrence v Texas, 34 years after the Stonewall uprising in 1969.

Sodomy was only completely decriminalised in the United Kingdom in 2001, 47 years after the release of the Wolfenden Report that called for the decriminalisation of homosexual behaviour between consenting adults in private.

Closer to home, India’s Supreme Court ruling came 27 years after the movement to repeal Section 377 was initiated by the AIDS group, AIDS Bhedbhav Virodhi Andolan.

The movement to repeal S377A of the Penal Code arguably started in 2007, with the submission of the parliamentary petition. It has been about 11 years since and much progress has been made on different fronts. We might not have reached the end of the rainbow yet, but there is no doubt that we are getting there. Maybe we are moving more slowly than some might prefer us to, but we are moving nonetheless.

The way forward for the gay movement

What then is the way forward to eventually repeal S377A?

There are three possible methods:

  1. Appeal to the courts to strike down the law on the basis that the law violates the fundamental liberties of citizens affected by the law;
  2. Shame the Government into acting to repeal S377A either through domestic or international pressure using the language of human rights;
  3. Continue existing grassroots efforts to shift social attitudes towards supporting the repeal of S377A until the Government perceives that repealing the law would not pose any possibility of damage to its electoral performance.

Unfortunately, the first approach failed in 2015 when the Court of Appeal upheld the constitutionality of S377A. It is also likely to fail again in the absence of any local development in the jurisprudence of Article 9 and Article 12. Notably, the Indian Supreme Court was able to strike down S377 because of the recognition of a right to privacy under Article 21 (similar to Singapore’s Article 9) in another case in 2017.

Kenneth & Gary, two of the plaintiffs in the 2014 constitutional challenge (Source: Huffington Post)

However, there remains no constitutional right to privacy that is recognised in Singapore. Judicial politics in Singapore also differ significantly from other countries, simply because of the broader political landscape that our courts are situated in.

The second approach has also not been met with much success. International pressure does little to the Singapore Government, which often touts its national sovereignty to reject or resist developments in other countries. This is not unique to LGBT rights; we have also refused to do away with the death penalty for drug offences, for instance.

The language of human rights is also not particularly resonant or effective in Singapore’s context, where it has been observed that there is a lack of a rights culture. In addition, as appealing as it may be conceptually, human rights is not a universally or foundationally sound or accepted.

As Richard Rorty has observed on the gruesome history of the Bosnian genocide,

“the moral to be drawn… is that Serbian murderers and rapists do not think of themselves as violating human rights. For they are not doing these things to fellow human beings, but to Muslims. They are not being inhuman, but rather are discriminating between true humans and pseudo-humans”.

The problem with human rights is that it presupposes that there already is an accepted agreement that those whom human rights seek to shield and safeguard are already recognised as equal human beings to those who are being appealed to using human rights language. Human rights claims then have at best a persuasive or coercive influence, depending on how susceptible to such influence the public or the Government is.

It is also not clear how domestic pressure — such as by calling out the Government for being “cowardly” or “refusing to take a stand” — can have any real or effective impact unless there is a critical mass of individuals sufficiently embittered to threaten the Government’s continued electoral success on the basis of this issue.

It seems then that there are simply no shortcuts for the gay movement in Singapore, compared to our counterparts in other countries which can appeal to the courts or international pressure. The only way forward is to continue to work at shifting social attitudes until more people than not support the repeal of the law.

As Rorty suggested, human rights is won not through some rational justification of its universality or inviolability; rather, it is won through what he refers to as “sentimental education”. In his words,

“A better sort of answer [to the question “Why shoud I care about a stranger, a person who is no kin to me, a person whose habits I find disgusting?”] is the sort of long, sad, sentimental story [that] repeated and varied over the centuries, have induced us, the rich, safe, powerful people, to tolerate and even to cherish powerless people — people whose appearance or habits or beliefs at first seemed an insult to our own moral identity, our sense of the limits of permissible human variation.”

This is the simplest and also the most difficult pathway for change. Pink Dot has done a wonderful job at this on a larger scale and it is also encouraging that in light of the ongoing debate about S377A, many people are reaching out to their friends and family to have conversations about these issues.

Aerial view of Pink Dot 2017 (Source: Pink Dot SG)

I think it is important at the same time to realise that it does not simply take one conversation to change someone’s mind. In fact, the process of changing social attitudes is oftentimes not a linear one, where someone gradually or increasingly reaches the point where they come around.

Rather, I find this metaphor on mushrooms by Rebecca Solnit from her book, Hope In The Dark, very useful for imagining how social change happens:

“After a rain, mushrooms appear on the surface of the earth as if from nowhere. Many do so from a sometimes vast underground fungus that remains invisible and largely unknown. What we call mushrooms mycologists call the fruiting body of the larger, less visible fungus. Uprisings and revolutions are often considered to be spontaneous, but less visible long-term organizing and groundwork — or underground work — often laid the foundation. Changes in ideas and values also result from work done by writers, scholars, public intellectuals, social activists, and participants in social media. It seems insignificant or peripheral until very different outcomes emerge from transformed assumptions about who and what matters, who should be heard and believed, who has rights.

Ideas at first considered outrageous or ridiculous or extreme gradually become what people think they’ve always believed. How the transformation happened is rarely remembered, in part because it’s compromising: it recalls the mainstream when the mainstream was, say, rabidly homophobic or racist in a way it no longer is; and it recalls that power comes from the shadows and the margins, that our hope is in the dark around the edges, not the limelight of center stage. Our hope and often our power.

[…] Change is rarely straightforward… Sometimes it’s as complex as chaos theory and as slow as evolution. Even things that seem to happen suddenly arise from deep roots in the past or from long-dormant seeds.”

The ongoing debate over S377A is not going to be the last that Singapore will have. At the same time, it will no doubt bring us closer to the day when it is finally repealed. It is important and useful for those who identify ourselves as activists or allies to realise and take heed that change may not come immediately and the path to the repeal is likely to be a seemingly random and haphazard one.

As much as we are ready for repeal, the onus is also on us to get the rest of Singapore ready for the day when it comes.

But why should I have to do anything when repealing S377A is obviously the right thing to do?

I anticipate that some would object to my proposal for change on the basis that there is no reason why they should have to endure a debate about their personal identity or exert emotional labour to share their stories to change people’s minds.

Principally, I agree. However, realistically, change needs its agents to occur. We can either demand that things change and expect others to yield to our position or we can work at effecting that change through different strategies, the most effective of which I believe is Rorty’s project of sentimental education. As Harvey Milk once said, “Rights are won only by those who make their voices heard.”

At the same time, it’s important to reflect on how we amplify our voices. I find it very troubling that some may think that shaming others for holding views different from theirs might be effective in getting others to change their mind. On that note, I am reminded of the wise words of Ruth Bader Ginsberg who implored feminist activists to “fight for the things that you care about, but do it in a way that will lead others to join you.” She also observed that,

“If you want to influence people, you want them to accept your suggestions, you don’t say, ‘You don’t know how to use the English language,’ or ‘How could you make that argument?’ It will be welcomed much more if you have a gentle touch than if you are aggressive.”

Ultimately, I think it is also important to realise that in advocating for the LGBT community, we are not doing so only for ourselves. Our movement is not only for gay rights, it is for the opening up of civil society in Singapore, it is for forging a more democratically robust society and giving deeper meaning to what it means to be a citizen of Singapore.

I end with another quote, this time by Nelson Mandela, on what it means to be advocates for social justice and freedom and remembering the humanity of those with whom we disagree and those whom we seek to convince and win over:

“I always knew that deep down in every human heart, there is mercy and generosity. No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite. Even in the grimmest times in prison, when my comrades and I were pushed to our limits, I would see a glimmer of humanity in one of the guards, perhaps just for a second, but it was enough to reassure me and keep me going. Man’s goodness is a flame that can be hidden but never extinguished.

It was during those long and lonely years that my hunger for the freedom of my own people became a hunger for the freedom of all people, white and black. I knew as well as I knew anything that the oppressor must be liberated just as surely as the oppressed. A man who takes away another man’s freedom is a prisoner of hatred, he is locked behind the bars of prejudice and narrow-mindedness. I am not truly free if I am taking away someone else’s freedom, just as surely as I am not free when my freedom is taken from me. The oppressed and the oppressor alike are robbed of their humanity.

When I walked out of prison, that was my mission, to liberate the oppressed and the oppressor both. Some say that has now been achieved. But I know that that is not the case… We have not taken the final step of our journey, but the first step on a longer and even more difficult road. For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others. The true test of our devotion to freedom is just beginning.

Daryl Yang is a final year student reading a double degree in law and liberal arts at Yale-NUS College and the Faculty of Law at the National University of Singapore. He co-founded and served as Executive Director of the Inter-University LGBT Network, a network comprising five student-led organisations across Singapore’s universities with the aim to foster safer and more inclusive campuses. He was also previously a two-term Coordinator of The G Spot, Yale-NUS’s gender & sexuality alliance. Daryl also co-founded CAPE (Community for Advocacy & Political Education) with a group of students from Yale-NUS and NUS Law, which aims to increase political literacy and promote civil society engagement in Singapore.

Daryl Yang

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Depending on your ideological leaning, I am either a “militant homosexualist”, “millennial activist” or a “liberal snowflake”. Yale-NUS College & NUS Law ‘19.

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