The great tragedy of Section 377A

That is the title I wish ST had used, for my piece last Friday 26 October. They had asked me to write something for them, on "take-aways" from the entire debate. I agreed to do so, on a few conditions:

- that there be only grammatical/formatting edits to what I submit
- that I have final approval
- that it not become a "me vs her" thing between myself and Thio Li-Ann, and that they convey this to her

ST agreed to the above, and suggested a couple of topics:

"What united nation? In the light of the 377A debate, is consensus possible, and if not what do we do about it"

and

"The lessons on engagement I've learnt from this debate"

I wasn't really interested in spending 800 words to explore either topic, mainly because I did not want it to be a "me vs her" thing. I felt that the media had tried to play up that angle a bit too much. While we disagree (and I guess we disagree very strongly), I have no wish to let it become a personal thing -- the only people to benefit from that would be the media.

So I deliberately chose not to proceed along those lines, as it would invariably have involved criticising or rebutting Thio's speech. I did not want to do that, because to me, our speeches speak, and have to speak, for themselves. There was no need for me to extend it further outside Parliament. As it turns out, many others, such as Janadas Devan and innumerous bloggers, have taken it upon themselves to do so anyway.

In any case, my "take-aways" from the entire experience were not really about all this stuff about "consensus" and "engagement". We (i.e. those who supported repeal) engaged with society and with Parliament, and we did so according to the rules, in a manner that I felt was highly principled and civil.

That was enough for me. That was the mark of democracy at work. We took the high road, and we came through with our heads held high. We didn't succeed in repealing Section 377A, but I think we succeeded in many other aspects. As Alex Au so astutely explains, there is a lot for repeal supporters to celebrate.

So I did not want to play ST's game. Instead, my real "take-aways" were about understanding gay people better, about what Section 377A really meant to so many of them and their families, and about the humbling effect of so many people -- all strangers -- showing so much support for such a difficult cause. How ironic, that my stand purely on principle, without really having been exposed to these aspects directly, had led to this as well.

That's why I wrote this piece the way I did. It was easy to write, because I wrote from the heart. And just like my speech, it speaks for itself. The truth always does.

Straits Times Insight, 26 October 2007

My speech on Monday will probably be the speech of my career. I put my all into it, because I believe passionately in what I said.

That night, my overwhelming emotion was relief that it was over. But the relief was accompanied with sorrow, because it continues for so many others. That is the great tragedy of Section 377A.

I sat in Parliament on Tuesday, listening to the Prime Minister explain why Section 377A would be retained. Even though I continue to believe that Section 377A should be repealed, I am heartened by his speech.

The Prime Minister took pains to acknowledge the contributions of the gay community, their need for private space, and the importance of not making things unnecessarily difficult for them. It was probably as much as anyone could have asked for, short of a repeal.

His speech was fair, balanced and realistic. It will go a long way towards ensuring the debate -- which will inevitably continue -- remains on an even keel, and will hopefully temper the more extreme elements on each side.

The Prime Minister was probably right, when he said that most people were not seized of the issue. Certainly, as Mr Baey Yam Keng pointed out, many people did not really understand what it was about.

That is why it was important to have this debate. The parliamentary petition enabled the pro-repeal perspective to be put forward, for people to consider. The undecided majority can hear both sides, and make up their minds. Indeed, a friend who had previously opposed repeal told me that after reading the speeches, he had changed his mind and would actually sign the petition now.

And the petition allowed the voice of a politically disenfranchised group to be heard. In a democracy, surely that is important.

While homosexuality may not be in the mainstream (and I'm not so sure about that), it is indisputable that the pro-repeal argument is a firmly mainstream, albeit minority, view, not just one held by gays. The broad-based support for the petition demonstrated that.

For engagement to be civil, participants need to respect the common ground rules and the integrity of the process, while agreeing to disagree on the substantive issues. It is a critical part of a secular, democratic society.

Some repeal opponents have told me that they appreciated the distinction between the substance and the process. All this shows that the vast majority of Singaporeans do believe in civil engagement, even on issues of morality where consensus is difficult.

That was in stark contrast to those suggesting that the issue has polarized society. I think that the fault-lines, if any, have always existed. It was more a question of them becoming apparent.

But such statements risk being self-fulfilling prophecies. The more people harp on polarisation, the more likely it becomes. Some journalists have been particularly guilty such attempts to sensationalise the debate.

As we got closer to the Parliamentary sitting, I began declining media requests in that vein. While the media is and should be free to report stories as they deem appropriate, I was nevertheless disappointed at the apparent agenda of certain journalists.

Activists on both sides will continue to advocate their positions. And that is proper, because that is also what democracy is about.

I have been immensely humbled by the past two weeks, both by the tremendous support shown by so many, and by my increased understanding of what gays go through.

I have gay acquaintances, but I do not have gay family members or close friends. I agreed to present the petition out of principle. But as the online open letter garnered more and more signatures, as hateful comments started flying around, I understood so much better the human cost exacted by Section 377A.

I believe that as society as a whole gains greater understanding of and familiarity with gays, its views will shift. And I am glad that the Government's nuanced position allows for this possibility.

Many surveys have consistently shown young persons to be more accepting of homosexuals, and the acceptance level has increased over time. In September, the Straits Times reported that only 30% of youths surveyed felt that homosexuality was wrong.

And Straits Times journalist Tessa Wong wrote about how she was brought up in a conservative background, but realized that homosexuality was not intrinsically wrong after knowing a gay friend better. Such stories give me hope.

It is now time to move on. I have presented the petition, and Parliament has debated and passed the bill. While I disagree with the result, we live in a democracy, and that is how the democratic process works. There are other issues to raise, other goals to advance. The Government has a country to run.

Section 377A will surely resurface at some point. My hope is that all participants will remain civil, and focus on the issue at hand as a secular democracy. That will ensure that even as people disagree on their moral positions, society remains a cohesive whole. And it will demonstrate - again - that there is democracy in Singapore, and it works.

PMO response on Singapore Day, and Straits Times interview on homosexuality on 11 May 2007

I was out of town for much of this week, and was ill over the weekend (unfortunately, still am). So I've not been blogging or replying e-mails.

Regarding Singapore Day, there was a response by the Overseas Singapore Unit of the Prime Minister's Office in TODAY on 9 May 2007. There was a line in there which said:

"Mr Siew's commentary is built around his mistaken premise that Singapore Day was organised to woo overseas Singaporeans back."

Someone has e-mailed PMO to point that my piece included this line:

"I prefer to take the Government at face value and think that the event served to refresh connections with overseas Singaporeans, to remind and update them about Singapore."

PMO has still not responded to that e-mail. I am keenly curious as to what they will respond with.

And I'd like to thank all of you who have posted or e-mailed supportive comments on the Yvonne Lee and homosexuality issue. The Straits Times ran a piece on Friday, basically a Q&A with 3 lawyers: Ms Indranee Rajah, Mr Lim Biow Chuan, and myself. I have reproduced below the published Q&A with me (yes, they asked me to look at the final edited version, so a big-up to the journalist for that!).

MR SIEW KUM HONG, 32, senior counsel for CA, an IT management software company. He is single and has been a Nominated Member of Parliament since January.

Your response to MM Lee’s comments?

My first thought was that his view was premised on pragmatism, not principle. It might result in what I believe to be the right conclusion (ie. decriminalisation of gay sex), but I do not agree with the reasoning process. In the end, it rests entirely on homosexuality being genetic but if there is subsequently any evidence that homosexuality is not genetic, then does it mean we should change positions again?

My own belief is that homosexual sex should be decriminalised regardless of whether homosexuality is genetic. It is fundamental to respecting people’s dignity and their freedom to lead their private lives as they decide to the extent it does not harm others, regardless of why they would want to lead their lives that way.

What do you think of the current situation, where homosexual sex is banned but is not proactively enforced?

Having a provision on the books that the Government has explicitly stated it will not proactively enforce, risks bringing the law into disrepute. And here’s another question – what if a homosexual is jilted and makes a complaint against his former partner? Should the police take enforcement action then? But should enforcement be based solely on whether a complaint is made? If so, is that a rational and justifiable basis for deciding whether to enforce?

On what basis should laws be made? Should they reflect values and morality? What about pragmatism?

I do not think that laws should reflect values and morality per se. Instead, I believe that laws should deter and prevent harm to people. And if that coincides with morality, then great.

But they are conceptually separate and distinct concepts, and we need to bear that in mind. There is a great danger when laws are used to enforce values and morality, because they do change. Women previously could not vote, and this was enforced by law. Obviously, values and morality have changed since those times, and I think rightly so.They are also not universal, and so could potentially oppress those who do not share such values and morality.

How do we advance the debate on decriminalising homosexual sex, beyond the fixed standpoints that have been presented?

I’m not sure if you can. The starting points are so fundamentally different that they are essentially arguing at cross-purposes. How do you convince, through argument, a Christian who is convinced that homosexuality is evil and immoral, a sin that needs to be outlawed? I don’t think you can.

But policy and law-makers have a different responsibility. I would hope and expect policy- and law-makers to acknowledge that their own values and moral beliefs are personal to them, and that policy- and law-making requires them to adopt more objective approaches.

Some will and have argued that the approach embodied in the Wolfenden Report (a 1960s document that sets the basis for the decriminalisation of homosexual sex in the United Kingdom) itself represents a value statement about the importance of personal liberty. But I would argue that that is a universal value, and is irrelevant.

The question is the extent to which personal liberty should be limited by the law, and so it falls on those who argue for criminalising homosexuality to demonstrate convincingly that private consensual homosexual sex results in external harm that merits it being criminalised.

There has always been a sense that societal norms here should evolve at the pace of the most conservative members of society. Do you agree? What sort of pace should society proceed at in terms of discussing this issue?

Actually, that’s not the case. I think Prime Minister Lee Hsien Loong has previously stated that we should not move at the fastest (most liberal) or the slowest (most conservative), but with the mass in the middle. So far, the Government has identified the mass in the middle to be against the decriminalisation of homosexual sex.

But should that be the sole consideration? Surely the moral sensibilities of the mass in the middle should be balanced against the implications of the continued criminalisation of homosexual sex: the intolerant message sent by society, the lack of dignity or respect shown to a segment of our society (estimated at maybe 4 to 6 per cent), the inexorable exodus of homosexual Singaporeans overseas never to return, and the unquantifiable number of foreign talent who are homosexual and so simply decline to come to work in Singapore.

Law-making is a balancing act, to balance the different interests at play. I am not convinced that the continued criminalisation of homosexual sex strikes a balance that is most beneficial to Singapore and Singaporeans.

Response from Asst Prof Yvonne Lee

I posted a response to a Straits Times commentary arguing against the decriminalisation of homosexual sex. This afternoon, I received a letter from the writer, essentially making the following points:

• her article is to highlight issues relevant to the debate over Section 377A;
• the cogency of her arguments stand independent of the personal views of the reader; and
• the Government will "address and resolve" all legal and policy issues "in due course", presumably in the context of the upcoming Penal Code amendments.

She finished off by stating:

"Kindly refrain from making personal or professional statements against me. It is both unprofessional and unbecoming."

I would have reproduced the full letter on this blog, except that I have not received any response from the writer to my request for her consent to post it here. (The letter is technically copyrighted work belonging to her and reproduction here may or may not constitute a fair dealing of the copyright work, so I just decided to avoid that altogether.)

My response:

"Asst Prof Lee,

I stand by my posting. I believe it is justified and/or fair comment. I suppose we disagree on that.

On a related note, would you consent to the letter being published on my blog?"

As I said, I've not received any response. I'll leave it to my readers to judge for themselves the cogency of her arguments, and whether my statements are justified/fair independent of my personal views.

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.)

*

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.

*

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.

*

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.