Singapore High Court keeps gay sex ban: This is what happens next

Singapore’s High Court has kept a law that criminalizes homosexuality – but lawyers will to fight on.

The conservative city state in South East Asia makes gay sex illegal under a law called Section 377A. It is a colonial era hang-over – the British introduced similar laws across its Empire.

Indeed, India’s Supreme Court struck down its Section 377 as unconstitutional in September 2018.

That gave Singaporeans fresh optimism that they too may be able to defeat the law through the courts.

Legal challenges were mounted by Johnson Ong Ming, a 43-year-old disc jockey and producer; 42-year-old Bryan Choong Chee Hoong, the former executive director of LGBT+ organisation Oogachaga; and Roy Tan Seng Kee, a 61-year-old retired medical doctor.

Back in October 2014, the Singapore Court of Appeal also refused to remove the country’s anti-gay law from the statute books. It said LGBT+ people would have to wait for Parliament to repeal Section 377A. However, politicians are unwilling to change it.

And today Singapore’s High Court rejected the new appeals.

‘More power to overturn the 2014 judgment’

However, there is still hope.

In Singapore, the Supreme Court is split into a lower part, the High Court, and an upper division, the Court of Appeal. Now lawyers can take this case back to the Court of Appeal.

Victoria Vasey is head of legal at Human Dignity Trust, an organization that works for LGBT+ rights worldwide. She told GSN:

‘The High Court has considered itself bound by the Court of Appeal decision from 2014.

‘It was not persuaded by new arguments before it, particularly around the historical origins of the Section 377A and on scientific evidence about the immutable nature of homosexuality.

‘The High Court found that the criminalization of consensual same-sex sexual activity did not breach the constitutional rights to personal liberty, equality before the law and freedom of expression.’

However, the Court of Appeal has more freedom to act.

Vasey said: ‘There is one level of appeal in Singapore from the High Court and that is the Court of Appeal. That court has more power to overturn the 2014 judgment. 

‘This judgment makes Singapore an outlier in a world where more and more courts and legislatures are getting rid of these archaic laws. We must hope the appeal court has greater courage and legal scrutiny.’

Both open and illegal – LGBT+ Singapore

LGBT+ people have an unusual status in Singapore.

Section 377A used to make all oral or anal sex illegal. But in 2007 Singapore removed those bans on heterosexuals and lesbians so it now only bans gay and bi men’s sex.

Despite this the city has openly gay bars and even saunas. Moreover, Singapore’s Pink Dot celebrations are a huge and very public annual protest against the law.

Meanwhile, the law technically punishes sex with two years jail. But authorities rarely use it.

However, the law hangs over all LGBT+ people. It stops the community advancing other rights. Trans people can change gender in Singapore but there is no same-sex marriage or discrimination protection.

Moreover, many western workers in Singapore’s many big international companies are openly LGBT+. Indeed, some suggest the authorities do not enforce the law is because they fear backlash from multinational companies on which the country depends.

By contrast, fewer native Singaporeans feel safe to be out at work or in their families.

‘The journey will not end till 377A is abolished’

Despite today’s judgement, activists and lawyers seem likely to press on. And given similar Supreme Court decisions elsewhere against the law, they may very likely win in the end.

Indeed, M Ravi, the lawyer for Roy Tan Seng Kee, has already posted this defiant message:

‘Societal norms have changed with time and our voices have grown and so we will keep on trying.

‘The journey will not end till Section 377A is declared unconstitutional and abolished.’

Meanwhile, Téa Braun, director of the Human Dignity Trust, said:

‘In declining to strike out this archaic and discriminatory law, the Court has reaffirmed that all gay men in Singapore are effectively un-apprehended criminals.

‘This decision will be extremely disappointing for the plaintiffs and the wider LGBT community in Singapore, who had great hopes that new evidence presented to the court would make it clear that these draconian laws cannot withstand proper constitutional scrutiny.

‘The ruling will also echo harmfully around Asia, where millions of people are criminalized simply because of their sexual orientation or gender identity.’