And the Fight Goes On......

The recent Indian Supreme Court decision declaring unconstitutional the Indian equivalent legislation of our s377A has ignited a robust debate in Singapore. The line-up of eminent persons and institutions lined up on both sides of the debate has been delightfully described in an article in this blogsite: TANG LI (13September 2018). Professor Tommy Koh's article (25 September 2018) in NUS Tembusu College Website alluded to the scientific evdience that homosexuality was "a normal and natural variation in human sexuality" as well as the world wide rolling back of laws such as our s377A. Our ex-Attorney General VK Rajah's article in the Sunday Times (30 September 2018) sketched the legal arguments to show that s377A was unconstitutional.

The other side of the debate was presented eloquently based of the legitimate functions of laws further buttressed by the slippery slope argument in SMU ProfessorTan Seow Hon's article in the Straits Times (27 September 2018). In particular, the slippery slope argument posed the question : if s377A were to be repealed, would it lead to repeal of other moral laws, mandatory change in school curriculum, and same-sex marriages?

Yet the most insightful article on this subject was Rei Kurochi's "How should society deal with divisive laws?" in The Straits Times (27 September 2018). She relied on the 2007 debate over the repeal of a law allowing marital rape to conclude that "We cannot determine minority rights by popularity contest", and "Maintaining the status quo while protecting the interests of one group over another is not compromise; it is entrenchment".

While the arguments on both sides of the debate are formidable, I will argue that the most important insight is the parallel between the past century's struggle for women's rights and the present quest to repeal s377A.

Professor Tommy Koh pointed out that the Muslim world are amongst the diminishing number of countries where consenting homosexual relations are still illegal. By coincidence, the Muslim world is also the place where women are still relegated to a subordinate role in society.

A century ago, women had no right to vote. And this was so even in the West where democratic ideals first emerged. Many of the world's great religions exalted the role of men and suppressed women's aspirations for equality. Then, women were thought to be less than equal in intellect, moral turpitude, and courage. In my own lifetime, I remember my mother recounting that her father (ie. my maternal grandfather) did not allow her to go to school on the ground that it would be a waste of time and money since women's role was to marry and have children. Eventually, inspired not by Western feminism but by China's efforts to educate its vast population (including women) on the ideals of communism, she managed to gain support from her mother (ie. my maternal grandmother) to allow her to attend school.

Even today in parts of the Muslim world, a conservative may adopt the slippery slope argument to protest that allowing women to go to school to gain an education may lead to women pressing for the right to drive, or to lead in prayers, or to refuse sex with her husband in future. And lest we are amused at the hand wringing protests of some conservatives in the Muslim world today, we should remind ourselves that the slippery slope argument was also arrayed against women activists in the past. It is now resurrected again in the arguments against repeal of s377A. Similarly, the religious or moral legitimacy of the law was used against women's rights in the past, and is now resurrected against the repeal of s377A.

When democracy first blossomed in the Western world, men was given the right to vote. But not women. Women had no right to vote. It was thought that women was not knowledgeable enough about the world outside their homes to warrant a right to vote. Both Western and Eastern culture and religion believed that women's role was to marry and to bear children. Women were taught that their role was to "submit to their husbands" or to "serve their husbands". Apart from a social structure that acknowledged the husband as the head of the household, these words "submit" and "serve" were also thought to be an euphemism for the view that husbands had the right to demand sex with and from their wives. Hence the law that hubands could not be convicted of marital rape against their wives. In Singapore, that law held sway for over a century and was revised only in 2007!

Women had made great strides in their fight for equality, from the right to education, to the right to vote, to the right to legal recourse for marital rape. It might be thought that women who had struggled against such discrimination for over a century, should be more sympathetic to the LGBT's call to repeal s377A. But strangely enough (apart from the religious authorities who are mostly men), the ones who are more vocal in the general community opposing any repeal of s377A are women.

So far, missing from the debate, is how a repeal of s377A may affect our population growth (or decline). And here again, I see a parallel between the fight for women's rights and the repeal of s377A.

Women's rights was won and enshrined in our Womens Charter since the 1960's. After many decades of women's advances in Singapore, our late founding Prime Minister Lee Kuan Yew was famously said to have regretted it because it resulted in a reduction in Singapore's birth rate. As women advanced economically, they no longer needed a husband to support them. Some chose not to marry. For some, their aspirations and criteria for a husband-material priced them out of the marriage market. For others, the demands of education and career delayed their search for husbands until too late. Finally, it was thought that men shied away from the educated, more demanding women and preferred more submissive wives. The result was that marriage rates dropped and birth rates suffered. Nevertheless, there was no turning back the clock. No one thought that we should "bring back the Talebans" in our society. To suppress women for the sake of population growth (or to arrest population decline) was and is unthinkable. Society must find other ways to incentivise marriage and making of babies.

The parallel with s377A is the fear that its repeal would open the floodgates to more people joining the LGBT community and less babies.

First, the floodgates issue. Professor Tommy Koh's article suggested that homosexuality was an innate quality. If so, regardless of their laws and culture, societies cannot create or change this innate quality nor open floodgates to generate more of it. However, that innate quality speaks only of the internal desires and orientation of the person. It does not point to the external expression of such desires or orientation. Laws and culture may suppress the external expression of this innate or internal quality albeit at the cost of much personal frustrations and suffering. If the law and culture were removed, if the suppression was removed, the innate internal quality would be free to express itself. This is the "floodgate fear". The fear is that if s377A were to be repealed, more outwardly heterosexual people would cross over to the LGBT community to express their true, innate quality that was previously suppressed. But this type of "floodgate fear" is a fallacy. It is merely the reverse side of the coin. 

Removing the suppression  will obviously free the suppressed from their personal frustrations and suffering. This type of "floodgate fear" is an indictment of the suppression.

If one goes further, one can argue that since homosexuals do not procreate, this "floodgate fear" would translate into fear of population decline. But as shown above, if it is unthinkable now to suppress women for the sake of arresting population decline, it should be equally so for the idea of suppressing the LGBT community to arrest population decline.

Secondly, the "floodgate fear" also relates to the young and how they are educated. Again, if Professor Tommy Koh was right, regardless of how our law and culature influence the young, our influence cannot create more or less innate or internal qualtity in our young. But, instinctively, we fear or recognise that our young are succeptible to influences that may affect their sexuality. In other words, we do not wholly believe in the theory of innate quality. Does this also mean that we do not believe in the "science" behind it?

I think the reality is somewhere in between. For eg. we know that some people are genetically programmed to be taller and others to be shorter. That genetic trait cannot be altered by our laws or culture. But the expression of those genes can be modified a little by nutrition and perhaps by exercise and sports. So I am taller than my father, and my son is taller than me. Generally, my generation is taller than my father's generation, and my son's generation is taller than mine. Did our genes evolved across 3 generations towards taller genes? That is not possible. Instead, it is the nutrition (and perhaps physical exercise and sports education) that resulted in this slight inter-generation difference. Human sexuality may be viewed in the same way. The innate quality or genetic disposition cannot be changed by laws or culture. But exposure to different types of sexuality  may modify the expression of those genes slightly. Some even suggests that exposure to some chemical pollutants in our living environment may also affect our sexuality. But that is another debate 

altogether.

 The point made here is that the expression of human sexuality, though innate, may change slightly. We fear that when exposed to LGBT lifestyles, our children may be more open to experiment with such lifestyle and shift their attitudes ever so slightly. It may be too far fetched to think that laws and culture can change a young boy from one end of the spectrum (eg. the outwardly masculine) to the other end of the spectrum (eg. the outwardly effeminate). But law, culture and exposure may change a young person near to the borderline to cross that line. For young people near the borderline, a slight shift in attitude may be all that divides one from the other. This type of "floodgates fear" is a more formidable argument.

Nevertheless, this fear is not unique to the debate on s337A. It applies to sexual grooming of young girls. We have laws against sexual grooming.  If we rely on such laws to protect our daughters, equally we should rely on such laws to protect our sons. If need be, such laws can be strengthened. Such fears do not justify suppressing the LGBT community. Suppressing the whole LGBT community is similar to punishing the whole LGBT community for the fault of a few wayward members thereof.

This parallel between women's rights and repeal of s377A, protection of daugthers and sons may give us a better perspective in the ongoing debate on s377A.

This parallel may also be helpful to the LGBT community.

For eg. the "population -fear". The point made above is that "population-fear" should not be a reason to suppress the LGBT community. But this begs the question  -- is it true that the LGBT community cannot pro-create? Singapore has a declining birth rate. This decline is detrimental to our future economy and politics. If the LGBT community can form stable family units and pro-create, it will go a long way towards establishing their legitimacy. For eg. can two LGBT men marry two LGBT women and have four children to form a family unit? Whether the children are conceived naturally or by assisted reproduction is a personal choice.

In heterosexual marriages, the State has an interest to create a stable system for procreation and the nurture and protection of children from the marriage. For this purpose, the State created laws relating to marriage, property rights, probate and intestacy.

If the LGBT community does not pro-create, one wonders why the State should intervene in their lives to create marriage laws for them? But if the LGBT community were to form stable family units and pro-creates, there is an interest for the State to create laws to regulate and nurture those families and their children. And whether we should call such family units a "marriage" or a "civil union" may be the subject for future debate. These are thoughts for the future. These ideas do not impinge on the s377A debate.

Nevertheless, the question whether the LGBT community can pro-create raises some interesting questions. For eg. if LGBT communities do not pro-create, how did their genes pass down the generations? If their genes are passed down despite limitations in their pro-creation, what was the advantage of those genes? For the atheists, the question is this -- how did natural selection favour such genes? For the religious, one may pose the question the other way  -- why did God make genes for the LGBT community? Either way, the answer may affect how we view s377A. But this is a question for another article.

By Eric Ng Yuen
Partner at Malkin & Maxwell LLP