High Court again upholds law against sex between gays

SINGAPORE — The issue of whether homosexuals are born or made is “at least arguable and debatable”, said High Court Judge Quentin Loh, as he upheld, for a second time, a law criminalising sex between gays as constitutional.

Parliament also has the “mandate” to make decisions on issues which may be debatable, such as whether homosexuality is immoral, Justice Loh added.

Almost six months ago, the judge had dismissed a legal challenge by a gay couple — graphic designers Gary Lim Meng Suang, 44, and Kenneth Chee Mun-Leon, 37 — on the constitutionality of Section 377A.

Their appeal against his decision will be heard in the middle of this month.

In the present case, Tan Eng Hong, who launched his legal bid after being arrested for having oral sex with another man in a public toilet, had argued that the statute infringes on his constitutional rights due to his sexual orientation, over which he has no control.

He said S377A violated Articles 9 and 12 of the Constitution, which respectively state that “no person shall be deprived of his life or personal liberty save in accordance with law”, and “all persons are equal before the law and entitled to the equal protection of the law”.

In a 54-page written judgment released yesterday, Justice Loh gave his reasons for rejecting Tan’s contention.

Referring to the sheer volume of medical and scientific evidence arguing both for and against homosexuality as innate and unchangeable, Justice Loh said: “I am satisfied that the medical and scientific evidence has been for some time, and remains to this day, divided and inconclusive at best ...

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

During the hearing, Tan’s lawyer, Mr M Ravi, also submitted testimonies by “ex-gays” and anti-homosexual groups to support his contention that sexual orientation was not a choice. But Justice Loh downplayed the relevance of such evidence, noting that both camps are “usually self-serving”.

As for cases in foreign courts cited by Mr Ravi which purportedly support his position, the judge noted that their decisions had not proven the “correctness or truth” of homosexuality being a “natural and immutable attribute”.

Another argument Mr Ravi had submitted was that the “advancement of morality” cannot be the underlying justification of S377A.

This, he said, is because homosexuality falls within a host of moral conduct which is fiercely contested, unlike theft, for instance.

In dismissing the previous challenge by the gay couple, Justice Loh had ruled that Parliament’s objective of criminalising a conduct that “is not acceptable in society” is “clear”.

The judge yesterday rejected Mr Ravi’s argument, saying “Parliament has the mandate under our Constitution and system of law to make decisions on and surrounding controversial issues”.

Reiterating a point he made in the earlier case, Justice Loh said Parliament had affirmed the purpose and objective of S377A in 1938 (when the predecessor to the statute was enacted) and in 2007, when parliamentarians voted against a repeal.

Its “choice in favour of one view in the spectrum cannot be said to be undeniably wrong”, noted Justice Loh.

The judge also noted that Parliament can amend legislation “to reflect societal norms and values if it occurs to Parliament that the tide of social and public opinion has shifted”.

Justice Loh added: “As I said (in the previous case), we are, like many other societies around the world, in the midst of change. It is an undeniable fact that society’s perceptions of sexual and other morals change over time. However, these changes, to varying degrees, take time, some of which can be accurately characterised as generational in nature.”

In response to TODAY’s queries, Mr Ravi said he needed to study the judgment on the prospects of an appeal.​