Opinion on 938 Live, and ill-reasoned commentary

I did a radio interview yesterday morning, for the Opinion programme on 938 Live. It was "live", from 9 to 10am. The focus was on how Singapore can maintain its competitiveness, with specific talking points on MM's recent comments about homosexuality and censorship (I am forced to link to Yawning Bread because that seems to contain the most complete reproduction of MM's comments on censorship -- albeit with Alex Au's editorialising -- currently available for free online).

The show was quite fun to do. The other two panellists -- Dr Kirpal Singh of SMU and Mr Phillip Overmyer of the SICC -- were smart and funny. There is no podcast as yet -- the producer has promised to let me know if/when a podcast is published, or to send me an MP3 if there will be no podcast. There will however be a repeat tomorrow (Sunday) at 11am on 938 Live.

I have to thank the various kind people who responded to my request for assistance to prepare for this interview. I had asked for information on Singaporeans' attitudes towards homosexuality, and received quite a bit of very helpful information. In particular, I must thank Alex Au and George Hwang.

In the end, because of the overall theme, the direction taken during the discussion and time constraints, I didn't manage to use a lot of it. Nevertheless, I know it will be helpful when I prepare for the debate on the proposed Penal Code amendments. (Indeed, I have relied quite a bit on this information in what I write below.)

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And that actually takes me to yesterday's commentary in The Straits Times arguing against the decriminalisation of gay sex. My personal belief is that regardless of whether homosexuality/lesbianism/bisexuality/transsexuality is nature or nurture, GLBTs should be left to their personal choices and their own devices, so long as their actions do not result in external harm.

And that is really my own philosophy on how the law should regulate personal behaviour -- everyone should be allowed to do whatever they want, so long as there is no external harm. So I disagree with those who argue that gay sex should remain a criminal offence.

But I can appreciate a well-reasoned argument even if I disagree with the premise and conclusion, and I can dislike a poorly-reasoned one even if the premise and conclusion are consistent with my own beliefs. I was literally offended that The Straits Times saw fit to give this piece precious commentary space, because it had to be one of the most poorly-written articles to ever be printed.

The argument started off talking about the prohibition against discrimination in the Constitution. The writer explained the legal operation of this prohibition, and stated that laws that discriminate between classes of people are constitutionally valid if: (a) the classification had a rational basis, and (b) the law had to serve a legitimate purpose which is reasonably related to the basis for the classification. The writer also added that each differentiating legal measure served a social objective, and that Parliament was permitted to pass laws that promote the public good over the rights of individuals or goods.

I didn't have a problem with this so far. But after laying out the legal groundwork, the writer went off on a completely different tangent. Instead of showing how Section 377A of the Penal Code (which criminalises gay sex) satisfied that two-pronged test, she merely asserts:

"Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health."

There was no attempt at explaining why the classification of homosexuals as a class to be regulated is rational, or why it is rational to criminalise gay sex but not lesbian sex. There was no statement as to what the public good was in relation to the criminalisation of consensual private sexual acts, albeit between men.

The only attempt at explaining the legitimate purpose to be served was the reference to the "known medical fact" about the alleged higher risks of STDs in homosexual intercourse. To be polite, it is counter-intuitive and unconvincing, to say the least, to assert that male-male anal sex is inherently more likely to transmit STDs than male-female anal sex, the decriminalisation of which the writer apparently does not disagree with. There was also no clarification as to whether this asserted medical fact relates to protected or unprotected sex.

The conclusion in that paragraph, that the law should not facilitate acts which threaten public health, also does not make sense. Firstly, it pre-supposes that repeal of Section 377A will somehow make it easier for gays to have sex (since that is what facilitate means). But the Government itself has repeatedly and openly stated that it will not proactively enforce Section 377A. Let's not delude ourselves, gay men are having gay sex. That is going to continue happening regardless of whether Section 377A is in place.

The debate over Section 377A is not about what gay men are doing or are not doing. It is really about the message that society should send to homosexuals, and some may argue other disenfranchised minorities in society as well. The Government itself, in its proposal to preserve Section 377A, admits as much. So that conclusion is (whether deliberately or otherwise) misleading in its suggestion that the repeal of Section 377A will somehow make it easier for gays to have sex, which naturally also suggests that there will be more gay sex.

Secondly, even if, for argument's sake, we accept that gay sex is indeed a public health risk, there is no attempt to explain why we should specifically criminalise this public health risk but not others. Why not criminalise unprotected sex with unlicensed prostitutes in Singapore, or with prostitutes overseas? What about other non-sexual risks that do affect other people, such as smoking?

My recollection is that the numerical majority of HIV/AIDS sufferers in Singapore were infected through unprotected sex overseas, presumably with prostitutes, as opposed to homosexuals. So if we are willing to criminalise overseas child sex (which addresses the extraterritorial issue), then why not overseas unprotected sex with prostitutes?

Either the writer took all of her leaps of logic as granted and self-evident (which speaks volumes about the unstated assumptions in her mind), or perhaps there is really no convincing manner in which one can successfully apply the two-pronged test of constitutionality to Section 377A and so she conveniently ignored all of it and sought to pass off mere assertions as reasoned arguments.

She concluded the first part of the piece by arguing that:

"any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion."

Now, in the first place, to me, equality is actually a fundamental value that serves the public good. It must be, and that is why it is enshrined in the Constitution.

Furthermore, there are other fundamental values serving the public good, that are adversely affected by Section 377A. The Law Society has rightly pointed out that continuing to keep a law on the books, that the Government has openly stated it will not proactively enforce, brings the law into disrepute. And inclusiveness is a word that is bandied about a lot, and Section 377A is a classic case of how society is deliberately, loudly and very conspicuously excluding a segment of society.

The writer seems to perceive the criminalisation of homosexual sex to be fundamentally in the public interest. It would have been helpful if there was even an iota of explanation as to why.

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In the second part of her article, the writer then went on to talk about recent developments in foreign jurisdictions, about decriminalisation of gay sex as the first step in a "broader homosexual rights agenda to transform social morality". And here is where she betrays her real agenda.

This article is not about the legality or justifiability of homosexual sex per se. It is actually a Trojan horse that uses the debate over Section 377A as a vehicle to argue homosexuality per se.

I do not propose to rebut the writer's point-by-point construction of the alleged homosexual agenda one by one. I will only say that in my view, it makes sense only if one accepts and believes that homosexuality is inherently wrong and should be outlawed, and homosexuals should be excluded, disenfranchised and discriminated against.

I don't agree with that. But that is her premise, and she is entitled to her beliefs. Even though I disagree with it, I must say that, on the whole, the arguments in this part are much better-constructed than in the preceding section.

Having said that, logical rigour would seem to demand that the writer explain why, if homosexuality itself is so against the public interest, we should criminalise only homosexual sex and not other aspects of homosexuality. We all know of gay bars and clubs in Singapore, and even Mardi Gras events with prominent homosexual involvement. So why criminalise only the sexual expression of homosexuality?

Furthermore, I am sure that there are many other agendas that some or many people would believe to be contrary to the public good. So should we also criminalise acts related to such agendas? The writer does not explain what is so abhorrent or offensive about homosexuality that compels us to criminalise gay sex.

In any event, once she finishes her description of the alleged homosexual agenda, the writer lapses back into assertion-as-reasoning. She writes:

"The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes."

The fact is that moral attitudes are probably already shifting. A Singapore Polytechnic study earlier this year shows that a large proportion of young people (half, if it is to be believed) nowadays accept homosexuality. A NTU study to be published soon found a correlation between youth and acceptance of homosexuality. Alex Au's analysis (which I agree with) suggests a dramatic trend towards acceptance within a relatively short period.

So whether or not Section 377A is repealed, the times they are a'changin', to quote Bob Dylan. So it is misleading to attribute any change in moral attitudes to the repeal of Section 377A.

Furthermore, this argument pre-supposes that moral attitudes, and in particular moral attitudes towards homosexuality, are fixed and always correct. That must be the underlying assumption, otherwise why should it be a problem for moral attitudes towards homosexuality to change? (In the interests of full disclosure and transparency, I admit that I am, for the most part, a moral relativist.)

But once upon a time, people held the view that it was immoral for women to work. Those views have since changed. I will leave it to you to decide if that was for better or worse.

She went on to state:

"While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle."

I am not sure why any such campaign (if there is indeed such a campaign in Singapore) is relevant to the question of whether to criminalise Section 377A, which is what the commentary purports to be about. It is also not clear why the analogy between adulterous and homosexuals is fallacious simply because (assuming this to be true for argument's sake) homosexuals publicly attempt to advance their agenda. This seems to me be a red herring.

In the next paragraph, the writer commits perhaps her worst error:

"The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public."

This is the worst error because it is a factual error. Section 377A explicitly does not differentiate between public and private acts. The Government does not propose to change Section 377A. The Government itself acknowledges that the law will technically continue to apply to gay sex in private.

What the writer seems to be alluding to is the Government's declaration that it will not proactively enforce Section 377A. But that is not the point. The fact is that homosexuals leading their lives, whether or not they have gay sex in public or in private, are technically breaking the law. So either the writer was mistaken, or she was deliberately misleading the reader. I am not sure which bothers me more, given that the writer is a law professor in NUS.

The writer's next statement is:

"S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context."

But this merely asserts the constitutionality of Section 377A, nevermind that her discussion on that issue was full of assertions and lacking in reasoning. Saying it often enough does not make it right or logical.

The writer concludes by stating:

"Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance."

The first sentence is factually correct -- the NTU study I referred to confirms it. But conventional legal theory states that offensiveness, in and of itself, is not good enough reason make something a crime. Indeed, I can think of plenty of offensive behaviour (cutting queues and inconsiderate driving, for starters) that is not illegal. Furthermore, allowing moral majorities in and of themselves to dictate laws seems to me to be a big stride down the road to intolerance, discrimination and persecution.

The next sentence is factually incorrect. It suggests that only homosexuals are pushing for repeal of Section 377A. That is completely wrong. I am straight, and I oppose Section 377A. I know many people who are straight, who also oppose Section 377A.

Furthermore, and here I expect to attract some controversy (but I will push on anyway), I want to ask whether there is an aggressive religious agenda to dictate law-making in this area. The NTU study found a strong correlation between certain religions (specifically, Christianity and Islam) and opposition to homosexuality. Indeed, MM himself also alluded to this.

I am an atheist. I strongly object to allowing an aggressive religious agenda of one or two religions to dictate law reform (in the case, the lack thereof). That ignores the nature of Singapore's multireligious, multiracial community, which includes atheists, agnostics, Hindus and Buddhists. Such an agenda is divisive.

And so, I would invite those who assert homosexual agendas to declare their own agendas, openly and transparently.

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I am not sure what I was more disappointed with: the thrust of the article, the poor (sometimes non-existent) reasoning, or the fact that The Straits Times chose to publish it and to give it such prominence. But I do know that I was immensely disappointed that this piece was written by an assistant professor in the NUS Law Faculty, who also teaches constitutional law. She may know the law, but she has not, in this piece, demonstrated the ability to apply it.

I was really upset when I read it. As a self-confessed liberal, I accept the right of others to hold their own opinions. That comes with the territory. But I do find such poorly-reasoned attempts at arguments terribly offensive. And that is why I decided to write such a long response to it.