Singapore’s announcement that it will repeal a colonial law criminalizing sex between men while

simultaneously strengthening the legal definition of marriage produces no meaningful change.

Rather, it shrinks further the rights of citizens, gay or straight. Virgil reminds us to beware of those
bearing gifts: Singaporeans may do well to be equally circumspect.

In 2011, freshly returned from living abroad, in a jurisdiction that had safeguarded the rights of
LGBT people for many decades, perhaps a little naïve that Singapore might be ready for change—
even a more gentlemanly style of politics—I threw myself into political activism and contested for
parliament on an opposition party ticket.

My opponent from the government party, having been alerted to comments I made at a forum
the previous year on the abolition of the anti-gay law, implied that my aspiration to parliamentary
service was driven by a ‘gay agenda’, sufficiently vague to hint at all manner of perverse motives.

As it happens I didn’t win but I became known as Singapore’s first gay politician, a brickbat or
accolade I neither welcomed nor resisted. My opponent continues as a senior member of the
government. Such is the usefulness of bigotry in the body politic.

The campaign to do away with Section 377A of the Penal Code, the anti-gay provision, has had a
thirty-year history. Characteristic of Singapore’s sedate activism, it tended to take the form of picnics
in the park, carefully-controlled protests, some writing, and, in recent years, recourse to the courts
to challenge its constitutionality.

When I read the news, announced in the prime minister’s annual policy speech on 21 August
2022, something in me sat down and sighed a little sigh of relief – one more ridiculous law out. But
on closer reflection, the ‘silhouette of oppression’ in the elegant phrasing of campaigning
Singaporean writer, Kirsten Han, will not be lifted by the prime minister’s aim to do away with 377A.

By acquiescing in the demand to strengthen the legal definition of marriage by those who oppose
equal rights for LGBT people (perhaps because this better calibrates in their minds the lesser status
of homosexuals), the prime minister has, inadvertently, set the terms of a particularly knotty aspect
of the culture war that, in effect, diminishes the citizenship of all Singaporeans rather than expands
it for any.

The legal definition of marriage has no real power in itself. People enter into all sorts of so-called
common law marriages all the time. In Singapore, however, public goods like housing, protection
from schoolyard bullying, or protection from being sacked are dependent on social values associated
with heterosexuality. The consequence of a strengthened definition in a brave new post-377A world
will be that a man may have sex with another man but he must not expect any other public welfare
that a civilised nation would concede to all citizens.

According to the minister for law, the way in which this state of affairs will be achieved is by
keeping certain public goods dependent upon the tradition conception of the family. Importantly, it
will at the same time withdraw from the courts the power to determine the constitutionality of such
measures.

By doing so, the new statutory settlement (whose parliamentary timetable has not been
announced) will shrink the rights of both proponents and opponents of 377A since it removes access
to the courts on a question of fundamental rights, a most serious incursion upon the rule of law.

Neither innovation nor clarity follows. The minister for law speculated on state television the day
after the speech that such a move was required because the courts might at a future time be minded
to pronounce on substantive questions of constitutionality.

This overestimates the rigour of the Constitution as well as the inclination of the courts to
intervene on legislative matters. The judges have taken their direction not to determine 377A
questions from the Attorney General, the government’s own legal officer. They have, furthermore,
articulated from time to time the principle that legislative innovation is for parliament not the
courts.

In any case, Singapore’s Constitution is a flexible document, subject, in most of its provisions, to
amendment on a two-thirds vote in Parliament. So long as the People’s Action Party maintains this
so-called ‘super majority’ as it has done through a variety of methods for six decades, its power to
shape the constitutional settlement will continue untrammelled. The law minister need not have
worried about an activist bench.

By establishing the principle that certain provisions of the law are not available to adjudication by
the courts, the government will, in effect, close another door of justice upon the people of
Singapore. This fact seems lost on those who insist that LGBT people should remain second-class
citizens.

To them, the ‘gay agenda’ may appear to have been won or at least on a slippery slope in that
certain direction. But every Singaporean has lost a more powerful right, the free and equal access to
the courts to adjudicate on state incursion upon their citizenship. And bigotry will likely remain fair
game.