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At level of international law, there is no established human right to 'sexual orientation'

I write to clarify some statements reportedly made by a local group which are incorrect as a matter of law (“Repealing Section 377A will ensure a ‘secular common space’, says local human rights group Maruah”; Sept 24).

At level of international law, there is no established human right to 'sexual orientation'

An overview of the United Nations Human Rights Council, as seen in Geneva, Switzerland.

Thio Li-ann

I write to clarify some statements reportedly made by a local group which are incorrect as a matter of law (“Repealing Section 377A will ensure a ‘secular common space’, says local human rights group Maruah”; Sept 24).

First, there is no established human right to “sexual orientation” at international law — it is a contested proposition. There is no United Nations (UN) treaty which expressly underwrites discrimination on grounds of “sexual orientation”, itself an ambiguous term.

Attempts to read “sexual orientation” into “sex” (a biological term) in interpreting treaties such as the Covenant on Civil and Political Right are controversial and not universally accepted. While certain UN bodies/officials prefer an expansive reading of “sex” as encompassing “sexual orientation”, their opinions are not legally binding.

At best, “sexual orientation” is a political claim, not an international legal right.

Invoking “human rights” language is a strategy to evade debate over the substantive issues underlying the 377A debate.

In other countries, sexual orientation rights claims have clashed with other human rights, like religious freedom, free speech and parental rights to determine the kind of (sex) education their children receive.

Second, to invoke “rightful equal status” begs the question. What should rightfully be equated with what?

An issue cannot be resolved just by declaring something is equal/unequal.

The criteria for whether X is equal to Y must come from an independent philosophy which supplies the basis for drawing distinctions.

Are durians equal to mangosteens? Yes, if your criteria is “fruits” and no, if the criteria is “colour”.

There are no uncontroversial philosophies regarding questions of public sexual morality.

To invoke “equality” as a rhetorical slogan does little to elucidate the substantive issues.

Third, there is no necessary relationship between a “common secular space” and repealing Section 377A.

It begs the question of what “secular”, a protean term, means. There are many forms of secularism — agnostic or anti-religious. Some types of liberal, militant secularism seek to exclude all religiously influenced views from law and public policy debate.

This is undemocratic and undermines viewpoint diversity. Viewpoints should be assessed not on their intellectual origins but their cogency and merits.

The question is: Does the law serve a legitimate purpose and the common good? To merely invoke the “secular” argument does not provide any answers unless what is being done is to espouse a secular humanist ideology, which is not a politically neutral stance.

Religious groups have the right under article 18 of the Universal Declaration of Human Rights to articulate their views and instruct members of their faith community.

In a multi-religious society, it is important feedback to understand the varied perspectives held on public issues.

All citizens, whether influenced by “religious” or non-religious perspectives, have an equal right to participate in public debate.

Indeed, no clear line exists between “religious” and “secular humanist” views (like Maruah’s).

Both religious and humanist views may be articulated as exercises of free speech, and all views are subject to critical evaluation, as part of the democratic process.

The alternative is censorship of disliked perspectives.

 

ABOUT THE WRITER

Dr Thio Li-ann is a law professor with the National University of Singapore

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