No place for discrimination in Singapore: A reply to Yvonne Lee

Singapore Democrats
M Ravi
07 May 07

In her Straits Times piece "Decriminalising homosexual acts would be an error" (see below), Professor Yvonne Lee sets out two tests for the constitutional validity of discrimination against certain sectors of society, in this particular instance against homosexuals: One, that the the classification must have a rational basis and, two, that the law must serve a legitimate purpose which is reasonably related to the basis for the classification.

In the first instance, it must be remembered that there is no rational basis for such a classification the because the law itself is outmoded as recent legislative amendment to recognize that "unnatural sex" is no longer a crime.

Of course, I should not have to point out that many heterosexuals engage it "unnatural sex" as much as homosexuals do. What is "saucy" for the goose is also "saucy" for the gander. It is inherently unfair to outlaw a practice for one group while allowing that very practice for another. This is where Professor Lee's contention for "acceptable discrimination" breaks down.

Furthermore, one's sexual orientation is for one to choose. The ability to choose defines one's sense of being. It is the right of an individual to self-determination. Take it away and you are left with a corpus without spirit or mind. And just as heterosexuals are left free to determine the lifestyles they want to lead (for example, turning to vegetarianism, taking up extreme sports, or exercising some New Age belief and practice) why should homosexuals be deprived of their right to self-determination? Even transsexuals are not prohibited from altering their gender.

The fundamental right of the individual to pursue his or her natural inclination when they do not interfere with the rights of others is paramount.

Further, the don's statement that the "law should not facilitate acts which threaten public health" is just as problematic. Under such a principle, should we also not prohibit the sale of tobacco products and ban smoking? After all, it is undisputed that smoking is a public health hazard which affects smokers and non-smokers alike.

She also makes the argument that sodomy is an unhealthy act that carries higher risks of sexually transmitted infections and hence should be disallowed for gays. This is itself highly discriminatory as many lesbians and heterosexuals also practice sexual acts that gays perform. This is precisely why Section 377A violates the equality provision.

Professor Lee also has a problem with setting age limits for the practice of homosexual acts. Again, if the minimum age can be set for heterosexual practices, what is the difficulty of doing the same for homosexual practices? Setting the minimum age is not license for one individual to rape another just because both parties are over the age limit. It is to ensure that minors are protected. How does setting the age limit for homosexual acts be detrimental to society? Many acts, such as drinking, driving and voting, specify age limits, why should homosexual acts be any different?

To say that gay-rights activists will seek to "mainstream" the homosexual agenda is to completely miss the point. The question should be whether it is right or wrong to continue suppressing the voice of the homosexual community and the attendant discrimination, not whether or not the lobbyists seek to mainstream their agenda. This same argument was used against the blacks in America decades ago when African-Americans were discriminated against. Going by Professor Lee's logic, whites in the US should be absolutely appalled by the prospect of having a black president.

It is most pernicious that the Professor compares homosexuality with bestiality and paedophilia. We are discussing the rights of a community who want their lifestyles not to be made criminal. Paedophiles force themselves on children, homosexuals practice their sexuality between consenting adults. The difference is quite clear.

While it remains "unscientifically unproven" that individuals are born gay, there is a substantial body of evidence that supports the position that people are gay by nature. And since when is legislation of societal behaviour in Singapore dependent on scientific proof? Was it scientifically proven that better-schooled women produced smarter babies? Did that stop the social-engineering that took place through legislation in this country? This is the mother of all discrimination and the father of all irrationality.

And contrary to professor Lee's argument, it does not follow that gay marriage is the inevitable follow-up to a gay lifestlye. A great many liberals and civil rights enthusiasts in the West support the non-discrimination of gays and even civil unions, but not gay marriage.

Professor Lee's point about religious leaders having the right to say to their congregations that homosexuality is wrong is well taken. Their right to express themselves should also be defended. Free speech is a dialogue amongst differing, and very often passionate, views. It is not a strident monologue delivered by the majority.

In the last paragraphs of her article, Professor Lee rubbishes the comparison between adultery and homosexuality, stating that the former does not "foist" its lifestyle on the public unlike the latter. It must be pointed out that adultery presents a far greater threat to the institution of the family than homosexuality. Yet, escort agencies and massage parlours openly advertise for business, and they do not restrict themselves to singles. And it is no secret that prostitutes open ply the lorongs of Geylang in search of clients, many of whom can be presumed to be married with kids.

If a heterosexual male is inclined to pay for sex, he will know where to seek it. If he is not, then all is well. Similarly if he is not attracted to gay sex, no amount of cajoling or "foisting" will make him want to go to bed with another man.

In the end, it is not that the "homosexual agenda" should dictate law reform but that basic civil rights are a necessary part of an open and thriving multicultural Singapore. Minority rights like homosexual rights are fundamental constitutional rights which must be protected and this is where constitutional law ought to play its active role. If the Malays and Indians are, in principle, not to be discriminated against in this country, then that principle should be extended to the gay community as well.

The fundamental question is not whether one finds homosexuality morally offensive, it is whether the concept and practice of non-discrimination, like justice, should be extended to all.

Finally Constitutional Law in Singapore can only evolve if law professors make themselves available for debate. It is crucial that the Faculty of Law at the National University of Singapore not become a cloistered institution but one that seeks to grow in breadth and depth. To do this an open debate on this issue is essential.

M Ravi is a Singaporean lawyer and has been involved in several civil rights issues and cases including the legality of the mandatory death penalty in Singapore.