Court rejects challenge on gay-sex law

For the second time this year, a Singapore court has rejected a challenge against the law which criminalises sex between men.

Justice Quentin Loh on Wednesday dismissed Mr Tan Eng Hong's claim that Section 377A of the Penal Code was unconstitutional and infringed his rights, ruling that it was not yet proven that people are born homosexuals.

In April, the same judge also ruled against a similar challenge made by gay couple Gary Lim, 44, and Kenneth Chee, 37.

In his 54-page written judgment on Wednesday, Justice Loh said he had not changed his mind since his earlier decision.

Still, just like his previous judgment, he added that it was up to Parliament to revise the law, which prescribes a maximum penalty of two years in jail for sexual acts between men, if it believes that the tide of social and public opinion has shifted.

Mr Tan, 49, was the first to fight the law here in 2010 after he was caught having oral sex with another man in a public toilet.

He claimed that it infringed his right to equal treatment under the law, as guaranteed by the Constitution.

His lawyer M. Ravi claimed that Section 377A did not qualify as "law" as it was absurd. This was because people are born homosexuals and not able to change this characteristic, he argued. But Justice Loh rejected this.

Having gone through scientific literature on the matter, he said the evidence remains divided and inconclusive at best.

"I am simply not in an appropriate position to pronounce on whether homosexuality is a human attribute or a result of nurture or a lifestyle choice, much less on whether it is immutable or not," he explained.

As a result, Mr Ravi's argument that Section 377A was absurd was moot, ruled the judge.

He also rejected the lawyer's argument that it was not sound to use morality as a justification for Section 377A.

Justice Loh explained that the basis underlying the existence of Section 377A, which was inherited from the British, was one of morality and societal values. He noted that lawmakers in 1938 and in October 2007 affirmed this.

In his earlier judgment in the couple's case, he wrote that when the law was first enacted in 1938, it was a response to a prevalence of grossly indecent acts between males which lawmakers at the time deemed "a regrettable state of affairs that was not desirable".

He also pointed to a parliamentary debate on the law in 2007, when Parliament decided to retain the section as Singapore was a conservative society where the majority did not accept homosexuality.

In Wednesday's judgment, he said that while it was undeniable that a society's sexual morals will change, "however, these changes, to varying degrees, take time".

Mr Ravi, who is studying the judgment, said: "We will continue to fight until we collectively position ourselves on the right side of history, and towards a more inclusive society."

selinal@sph.com.sg


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