Queer politics in post-repeal Singapore

In 2007, Lee Hsien Loong, Singapore’s prime minister, rejected calls to repeal Section 377A of the Penal Code, which criminalised acts of “gross indecency” between men, in favour of the status quo because it’s “better to accept the legal untidiness and the ambiguity”. Fifteen years later, his government led the charge to repeal the same law because, in the words of K Shanmugam, minister for home affairs and law, it’s not “fair that gays have to live this way.” Could Martin Luther King Jr be right that the arc of the moral universe does bend towards justice?

Perhaps, but not so soon. In addition to repealing S377A, the ruling People’s Action Party (PAP), with a huge supermajority in Parliament, also enacted a new Article 156 in the Constitution that immunises any law or executive action based on a heterosexual definition of marriage from judicial scrutiny (on the basis that they violate a person’s fundamental liberties like the right to equality). In other words, Parliament can define marriage however it wants—and if that definition violates your constitutional rights, you can no longer challenge it in court. Numerous ministries have separately emphasised that there will be no change to education, housing, adoption and media policies that currently discriminate against queer people.

What do these legal developments mean for the pursuit of queer equality in Singapore and where do we go from here? Given that Article 156 forestalls the route to marriage equality, it may be necessary for the queer movement in Singapore to consider how we could strive for queer equality without—and even beyond—marriage. To do so, we must expand our understanding of queerness as not just about those who identify as LGBTQ, but more broadly those who fall outside Singapore’s constrictive definition of “normal”.

In striving for all this, it’s important to understand the shifting socio-political ground around queer equality, including the implications of repeal for political, government and civil society actors. A good place to start is to try to make sense of the government’s U-turn on the repeal of S377A.

Based on the Westminster model, Singapore’s system of governance is made up of three branches of government: the legislature, the executive and the judiciary. In particular, as the Court of Appeal itself declared, the judiciary is tasked with the responsibility of “ensuring that any exercise of state power is done within legal limits.” This includes ensuring that laws enacted by the legislature do not violate the rights of individuals, which are enshrined in the Constitution.

According to comparative constitutional scholars, “the scope of the Singapore judiciary’s constitutional margin of manoeuvre—its ‘zone of discretion’ or its ‘constitutional space’ to act with relative autonomy from politics—is highly restricted, given PAP dominance, and the decision-rules governing constitutional amendment.” Such institutional dynamics are unsurprising in stable one-party states, because of the legislature’s ability to overturn the court’s rulings by changing the law or the Constitution, as the PAP government did in response to the landmark decision of Chng Suan Tze v Minister of Home Affairs (1988). Notably, only three times over 50 years (1963-2013) have the Singapore courts held that the government’s interpretation of constitutional provisions was incorrect.

Indeed, a close reading of the Court of Appeal’s decision in Tan Seng Kee v Attorney-General (2022) suggests that the government may have overstated this risk—that the courts might rule S377A unconstitutional—to justify its decision to repeal it. First, the appeal in Tan Seng Kee was dismissed on the basis that gay men did not face any real threat of prosecution—thus the possibility of another constitutional challenge would arise only if the Attorney-General changes their mind and decides to enforce S377A proactively. Second, the Court of Appeal hinted that S377A would be unconstitutional if the law when enacted in 1938 only targeted male prostitution—but it had already rejected this argument after considering the historical materials on the issue.

At the same time, given the court’s dismissal of the appeal on procedural grounds, it was strictly unnecessary for it to have examined the constitutionality of S377A—that it did, may have been enough to motivate the PAP’s decision to repeal the law. As Sundaresh Menon, the chief justice, explained in a 2019 lecture, the relationship between the government and the courts in Singapore is one where the executive branch is “respectful of the Judiciary and is committed to abide by the law as pronounced by [the latter and] will voluntarily review its policies and adjust its conduct in the light of the guidance given, even without the need for a formal challenge.”

Repealing the law before the courts do may also have been advantageous to the government. First it can avoid any embarrassment or lose public confidence for being found to have acted in breach of the Constitution. Second, the government’s repeal combined with the enactment of Article 156 pre-empts future constitutional challenges by queer activists (whether on S377A or marriage equality), which—along with recent changes to the law on post-appeal applications by death-row inmates—would likely herald a dry spell in the number of constitutional cases brought before the courts, and slow the development of constitutional jurisprudence in the coming years.

This two-step has been seen by some as a move that benefits the PAP politically by allowing it to appeal to both conservatives and liberals. The PAP can accomplish this because, at present, it faces no serious competitor for the votes of socially conservative Singaporeans. It can thus move towards the political centre without fearing that it might be outflanked on the right (which typically might lead to a loss of conservative voters, party members or even members of parliament (MP)).

Repealing S377A may have conferred other political benefits too. As scholars have described, the PAP’s dominant ideological position has allowed it to shape political discourse in Singapore around the question of who is best at delivering certain universally wanted goods, such as social harmony and the effective provision of municipal services. While this does not foreclose the possibility of competing along programmatic lines—the question of ‘what’ politicians should deliver—most Singaporean opposition parties since the 2000s have competed (and some would argue rather successfully) within the frame the PAP has drawn. Rather than propose alternative pathways, the opposition’s case to the voter has been framed around the idea of credibility: “we will do the same thing as the PAP, except better.” The upshot of this dynamic is that all parties in Singapore have become “big-tent” parties, with supporters from a broad ideological spectrum, at least until the existing consensus around a communitarian and state capitalist model of governance begins to fray.

In this light, the repeal of S377A represents a highly contentious, programmatic issue that’s tricky for all parties to handle—one simply needs to see the diversity of speeches given by PAP and Workers’ Party (WP) MPs in Parliament. Yet, the PAP is fundamentally advantaged as the long-running dominant party, and can employ a combination of incentives (ministerial positions) and punishments (deselection) to persuade its MPs to toe the line. Despite the depth of opposition towards “normalising homosexuality” within its ranks, all its MPs voted for repeal and for Article 156. The WP, well-organised as it may be, does not have these resources. With the WP whip lifted, its MPs voted in different ways on the two issues. The repeal of S377A in Parliament was thus used by the PAP to portray itself as the more credible party for having a coherent position on the issue. For instance, in his closing speech Shanmugam made the argument that the WP’s position was “wanting to speak without taking responsibility.”

Repeal answers the movement’s largest demand—but also leaves it at a crucial inflection point, given that it no longer has the legal totem of queer oppression around which to rally. For one, how should activists relate to the state moving forward? With this win in the bag, should they now “lie low”? Additionally, what’s the next agenda item on the path to equality? Making the case for the abolition of Article 156 is one possibility though it makes an indirect and legally technical assault on queer equality. Thus, any abolition drive would likely be met with far less passion than there was for S377A. Mounting a legal challenge against Article 156 would also likely take years and face numerous hurdles, including the identification of suitable claimants (couples who would otherwise have married each other if not for the law against same-sex marriage) and lawyers willing to argue the case.

Given the lay of the land, this year, Pink Dot SG has taken to confronting the heterosexist ideology underpinning Article 156 by calling attention to the fact that queer people have families too. In expanding our definition of “family”, the queer movement is also challenging the state and conservatives’ narrow understanding of the queer agenda as a march towards marriage equality. This limited conception has likely been fostered by landmark developments abroad—though in reality, the experiences of queer movements elsewhere offer more nuanced lessons for Singapore.

For example, legal scholar Katherine Franke has argued that the landmark US Supreme Court decision in Lawrence v. Texas (2003), which held that anti-sodomy laws were unconstitutional, had “created a path dependency that privileges privatised and domesticated rights and legal liabilities, while rendering less viable projects that advance non-normative notions of kinship, intimacy, and sexuality.” Yasmin Nair, activist and writer, has criticised how “gay marriage was foisted upon a community with few resources, held hostage by a wealthy few”, which takes away valuable resources and attention from other pressing issues facing the queer movement, such as trans and youth homelessness and the HIV/AIDS epidemic. Rather than assimilate queer people into the institution of marriage, others have proposed that access to housing, healthcare and immigration should simply be disentangled from one’s marital status.

This is not to say that marriage equality is unimportant; the fact that queer couples are on an unequal footing compared to heterosexual couples is objectionable. Notably, following recent amendments to the Adoption of Children Act, same-sex couples cannot jointly adopt a child because only married heterosexual couples are allowed to.

In terms of housing, queer couples who cannot legally marry in Singapore face the same struggle as those who are unmarried, because they only qualify for public housing after turning 35. Whereas marriage equality would benefit only a subset of the queer community, a campaign to broaden access to affordable public housing would also benefit singles, including single-parent households, and even heterosexual couples where one partner is not Singaporean (for whom qualification is still highly restrictive).

Similarly, Singapore’s sexuality education policies fail not only queer people but also women and those who are disabled—natural allies. A more inclusive approach would ensure that the diverse experiences of each group are sufficiently represented in the sexuality education curriculum. These communities can also collaborate to develop their own community-led sexuality education programmes that can serve as a model for the government to adopt in the future. Such an intersectional approach to the forthcoming workplace discrimination legislation—the government has hinted that it won’t protect workers from discrimination on the basis of sexual orientation or gender identity—is also key to ensuring that the new law will be sufficiently comprehensive.

These broader global trends also raise the difficult question of how closely the queer movement should identify with the PAP—and whether the PAP’s longevity would be to the benefit or detriment of the pursuit of queer equality in Singapore.

On one hand, beyond the repeal, recent developments make clear that the PAP is warming up to the reality that public acceptance of the queer community is on an upward trajectory. PAP MP Henry Kwek’s participation at last year’s Pink Dot was the first appearance by a ruling party representative since the rally was first held in 2009. More recently, Janil Puthucheary, another PAP MP and chairman of Onepeople.SG, launched CNA’s new “Regardless of Sexuality” documentary series—a first for Singapore’s mainstream media.

On the other hand, proximity to power can also erode the independence and credibility of queer organisations as advocates for the queer community at large. While the PAP’s shift towards acknowledging the existence and equality of queer people is positive, the possibility of forthcoming state support for queer community groups in the form of funding, recognition, and legitimacy must be weighed against the potential costs, such as the sacrifice of “autonomy to pursue their own agendas.” (An earlier Jom essay on “pragmatic resistance” described the risks of co-optation for civil society groups.) It is thus important that the queer community and its allies build networks of mutual aid and support, just as it responded in 2017 with the Red Dot for Pink Dot campaign after foreign sponsorship of Pink Dot was restricted.

Ultimately, it’s too early to tell what the future holds for the queer community in Singapore. That said, there are several aspects to be optimistic about. For instance, that decriminalisation has taken place through legislative action rather than the courts could be more beneficial to the queer movement. Parliament, however imbalanced its makeup, is representative of the will of the people. Its decision to repeal S377A is an important symbolic marker that demonstrates that we are moving forward as a country towards a more equal and inclusive society.

In repealing S377A, the government said that the courts are “not the right forum” to decide on such important socio-political issues that are fundamental to society; instead, these issues should be decided by Parliament because it can have a full debate that “accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the courts.”

In comparison, had the Court of Appeal struck down the law, such a decision could easily be criticised as undemocratic judicial overreach, as has been the case with courts in other jurisdictions like India and the US. Further, it would also open up the possibility that, with a single judgment, a future court could abolish the uneasy compromise over S377A and return gay men to legal jeopardy.

Furthermore, while the government has framed its decision to repeal S377A in the language of necessity with regards to protecting the norm of “traditional marriage”, it has also conceded that Article 156 does not codify or enshrine the heterosexual definition of marriage. This ostensibly keeps the pathway open for Parliament to eventually pursue policies that are inclusive of the queer community.

How things will turn out in the coming years depend on the path that the queer movement decides to take, whether to campaign for marriage equality or a broader set of policy demands. It would also need to carefully negotiate its relationship with the state and the risk of co-optation and control. And while political parties may seek to claim credit for the repeal of S377A, no social change takes place in a vacuum or is granted in an act of mercy. It is only with the labour of activists—past, present and future—that progress can be realised. Perhaps only with that struggle will the arc of the moral universe eventually bend towards justice and queer equality.

A lawyer and social justice advocate, Daryl Yang co-founded the Inter-University LGBT Network and worked with ILGA World in the publication of the 2019 State-Sponsored Homophobia report. He is presently working with ILGA Asia on a research project on indirect laws that are used against LGBTI+ people in South-east Asia.

Joel Yew is an incoming PhD student in the Department of Government at the University of Texas-Austin and former coordinator of the Community for Advocacy and Political Education. His research interests centre around contentious politics, democratisation, and the politics of identity in South-east Asia.

Letters in response to this piece can be sent to sudhir@jom.media. All will be considered for publication on our “Letters to the editor” page.

Correction: An earlier version had said that heterosexual couples where one spouse is not Singaporean are ineligible to buy BTO flats. This is incorrect. They can buy but with several restrictions.