Barely legal: how we got to repeal, and where we go now

Back in the careless, Covid-free days of 2019, I shared a post on Facebook that included the following lines:

“I've kinda given up hope of repealing 377A anytime soon. Like, Saudi Arabia will have gay marriage before we get rid of 377A.”

As we all know, I’ve been proven delightfully, deliciously wrong. Last Sunday, on August 21st 2022, Singapore prime minister Lee Hsien Loong formally announced that the government would abolish the country’s colonial anti-gay sodomy law. But there was a caveat: he’d also be amending the Constitution to make sure activists couldn’t sue for marriage equality.

The news hit us like a rainbow thunderbolt. Predictably, a great weeping and gnashing of teeth ensued among religious conservatives. Less predictably, many queer folks and allies were in mourning, furious that the PM had decided to pander to homophobes at this very moment of liberalisation; shocked that he’d go so far as to amend the highest law of the land for their benefit.

“I remember before landing in SG this time, I was contemplating moving back here and being with my community. Not after today,” wrote Sharvesh Leatchmanan, co-founder of anti-racist group Minority Voices, on Twitter. “[T]his country has an amazing way of letting you down, again and again. There is no hope, I’m heartbroken.”

Now, I get this anguish. I’ve felt it practically every time one of the General Elections comes around; when all the energy we expend on political debates fails to result in any appreciable shift in the control of state power.

But this time’s different. Rather than losing heart, I find I’m shrugging and rolling my eyes at how the ruling People’s Action Party (PAP) has chickened out and compromised. It’s partly because I already expected concessions to bigots—politicians had already vowed to “uphold the traditional family” when they first began seriously discussing the repeal—and partly because I’d grasped that the main point wasn’t to enshrine hetero marriage, but to steer clear of the messy business of constitutional challenges.

The main reason for my good mood, however, is simply the fact that we’ve finally earned ourselves some kind of win, after decades of activism. This may be a flawed victory, but it’s the first decisive one we’ve had after thirty years. For the sake of our mental health at least, we ought to take a second to savour this rare triumph.

“That was the period when entrapment was going on at the Fort Road area; [when] there was a sense that the Sunday gay parties were being targeted by the police,” he said. “It was very obvious to everybody the existence of that piece of legislation created a certain tenor that would justify such acts of the state, plus attitudes in society. It was pivotal to the entire negative construction of homosexuality.”

At first, the movement focused on changing social attitudes through openness about queer identity. “My sense was that every time somebody comes out, it would impact the views of everyone around him or her for the better,” said Au.

Then, in 2006, the strategy shifted. The Penal Code came under review, and the public was invited to provide feedback. This gave activists a golden opportunity to directly petition the government for repeal. For tactical purposes, organising was done under the Free Community Church (FCC), a queer-inclusive Christian group, with lawyer George Hwang in charge of drafting a white paper on the subject.

“The other political hot button issue that nobody dared to touch was marital rape,” Hwang remembers. The FCC legal team therefore made an agreement with the feminist group AWARE that they’d each research their own topics and then cross-endorse their papers. In Hwang’s words, “Only the women and the gays had balls.”

The momentum for the movement gathered through 2007, with activists employing a wider set of initiatives. A group of theatre workers—including Pam Oei, Neo Swee Lin, Lim Kay Siu, and Glen Goei—kicked off a viral Repeal 377A campaign using the very new medium of YouTube. Hwang, Stuart Koe and Tan Joo Hymn started a citizen petition, gathering signatures and IC numbers at bars and queer hangouts. It was also Hwang who engaged lawyer and then nominated member of parliament (NMP) Siew Kum Hong to deliver the petition to Parliament, urging them to repeal the law with a memorable speech—though perhaps less memorable than the vitriolically homophobic reply by law professor and then NMP Thio Li-Ann.

It was only in 2011 that activists attempted a constitutional challenge. I was a reporter for the queer news site Fridae at this time, and covered the developing news: how the highly eccentric performer masseur Ivan Tan Eng Hong had been arrested for public sex in a shopping mall toilet and charged with 377A; how the human rights lawyer M. Ravi, best known for his work for death row inmates, was using his case to prove that the supposedly unenforced law was indeed being enforced. I was in court when Justice Judith Prakash drily conceded, “It seems that 377A is alive and kicking.”

I won’t go over the other challenges that followed—Gary Lim and Kenneth Chee in 2012; Johnson Ong, Bryan Choong and Roy Tan in 2019—not only because of word count limits, but a genuine sense of fatigue. Reading about their struggles, and their respective defeats at the Supreme Court and the Court of Appeal, I eventually despaired of ever seeing change.

Seriously, I got pissed off at Professor Tommy Koh when he wrote a letter to The Straits Times in 2018 urging gay activists to use the courts for repeal. Didn’t he know we’d tried that already, multiple times, and failed? Couldn’t this old, straight dude understand that there’s only so much disappointment we queers could take?

But change did come. Moreover, Lee admitted that all this activism worked: “[...] following the most recent judgement in the Court of Appeal, the Minister for Law and the Attorney General have advised that in a future court challenge, there is a significant risk of S377A being struck down,” he declared in his National Day Rally speech on August 21st. “We have to take that advice seriously. It would be unwise to ignore the risk, and do nothing.”

It took 30 years of work, but we won. And it wasn’t just the legal teams that laid the way. It’s evident, from the empathy Lee showed when referring to gay people, that he’d interacted with loads of us, and that he assumed his audience had too. The old PLU strategy of openness paid off. As Au said, “This is on the backs of the thousands of people who quietly came out over these 15 years. It is their courage.”

It seems a generational divide is at play. This was a victory fought for and achieved by older activists: Baby Boomers, Gen-Xers and some millennials. Younger millennials and Gen Z-ers didn’t live through the same struggles, so this might not feel like their victory. They’re fighting different battles that are not yet won.

So what should we fight now? Home Affairs and Law Minister K Shanmugam has in fact laid out a roadmap to marriage equality. He said that queer activists could form a political party, “[...] put that in their manifesto, fight elections, get a majority and then change the definition of marriage.”

Though I recognise the benefits of marriage for immigration, housing, property ownership, etc, and though I’d freaking love to see a party full of openly queer politicians, I don’t think that should be our focus right now. The wonderful thing about the repeal is that it opens up a whole array of opportunities for queer activism, which we can push for, regardless of deputy prime minister Lawrence Wong’s assurances to conservatives that “the overall tone of society will not change—our laws and policies will remain the same.”

Can we, for a start, get better policies on sexual health? I’m not even talking about queer-inclusive sex education for kids: I want to talk about the fact that STI (sexually transmitted infection) tests are costly and slow even at the government-sponsored DSC Clinic—hardly an incentive for gay men, sex workers and other at-risk groups to monitor our health. And why hasn’t the government started importing monkeypox vaccines yet?

Also, can we push for anti-discrimination laws in employment and housing? We can team up with anti-racism and disability advocates here, ensuring that folks get a job and a roof over their heads regardless of sexual orientation and gender identity and expression. These are issues that especially affect trans, low-income, and racial minority queer folks, who’re too often sidelined in queer activism.

“The thing I’m most annoyed by is the people who are celebrating without realising there’s so much that’s still there, because they don’t care,” said Reverend Miak Siew of FCC. There’s still so much about Singapore that’s worth fighting for, from migrant worker rights to death penalty and prison reform. Us activists—queer and otherwise—don’t get to rest. We may be triumphant, but never satisfied.

There is, in fact, something I’ll miss about the days of 377A. The fact that the government had labelled me a criminal, just because I was a gay man, was strangely invigorating. It was an invitation to defiance; a reminder that I should ally myself not with the powerful but with the marginalised and outsiders. Will later generations of queer Singaporeans feel this natural kinship to the oppressed?

For now, I think it’s a useful reminder to my community that we may have finally come over to the right side of the law, but only just.

We’re legal, but barely legal.

Now, isn’t this an exciting time to be alive?

Ng Yi-Sheng is a Singaporean writer, researcher and queer activist with an interest in South-east Asian histories, myth and literature. The writer’s opinions in this op-ed are his own.