End of 377A Notes | IndigNationSG

End of 377A

Notes from the session

Discussion points

Public opinion towards 377A and the queer community
History of queer gatherings/community
Legal enactment of 377A/enforcement, myths dispelled
First glimpses of hope of repeal – MP visitations, etc
Actual fact of repeal: what we imagined vs what we actually got
Should we celebrate the repeal as a milestone? Parties? How did we actually celebrate it? How did we react to it?
Other issues we should be addressing now 377A is done – adoption, housing, etc
allyship

Arguments

How the supposed govt stance of non-enforcement of 377A was actually a myth.

Main gist

Introduction to the history of the law, of non-active enforcement (according to the govt).

History of Pink Dot, and history of activism for the cause of repeal etc in the past):

Started the PD website to be a depository of info.
Remembered community outrage with review of penal code where 377 repealed but not 377A.
At that point in time (circa 2007) there was no community of activists.
Suddenly, with 377 repeal, but not 377A, onwards, snowball of activity. Different efforts were being organized altogether – outreach to MPs, parliamentary petitions, and apart from the parliament – what to engage the public with.

The parliamentary petition needed signatures, and volunteers also garnered signatures for public petition to be sent to LHL. The gathering of signatures in person – took some balls from the volunteers, asking them to sign

In 11 years from there, Ready4Repeal – number of prominent names.

Evolution of public opinion on repeal:

Lawyers who did 377a challenges over the year - the second set in Nov 2012 - after India repealed 377a, was one of another 3 sets of lawyers who took on cases to challenge the constitutionality of the law. Failed in Feb 2022, the same year that the govt announced repeal. Also came into the social movement ready for repeal that ran concurrent to the court cases in 2018.

Primer on the the history of 377A:

Singapore is unique, even in the group of countries that keep anti-same-sex legislation in the Commonwealth. 377a came from the English, so there are a few buckets of countries that retain the laws - we belong to the English colonies bucket, and we are still a minority in that bucket. 377a was a law that prohibited carnal intercourse against the law of nature. Singapore specifically had 377a, which prohibited “gross indecency” between men - in 1938, enforced off and on, the last case involving an actual prosecution was in 2010. One of the myths about non-enforcement is that until Feb 2022, the govt could not enforce 377a without the danger of it being struck down. Even up to 2018, when the attorney general in Singapore was saying they wouldn’t prosecute, there was also an acknowledgement made that criminal complaints against gay men would still be investigated even if the att. general did not prosecute.

Non-proactive enforcement did not mean that no investigations would take place. The consequences were that men subject to gay sexual assault did not report it because they did not know whether they would be prosecuted or not.

Q: How different did the ground feel in 2012 compared to 2018 when India happened?

So just for context, there was a lot of hopefulness in 2012 when the 2nd set of challenges was launched after Tan Eng Hong. The context is important from a movement standpoint - to get a sense of the highs and the lows and what success felt like. Big thing that a lot of us struggled with after repeal and constitutional amendment.

Ups and downs of challenges across the years - 2010 is a challenge, but a reactive challenge - arrested for oral sex in a public place, and 377a. The attorney general freaks out and decides to no longer prosecute. In 2012, the apex court of appeal passes a ruling that looks earth-shattering - they said that even though you are not actively being charged, the fact that you are a gay man who could be charged makes a not significant part of the population unapprehended criminals in their own homes. Nov 2012 challenge of Gary and Kenneth comes in, in 2012 the community thinks we need to get the main issue of constitutionality and we will be pushing for an open door. Then by the time it gets to the court of appeal in July 2014, the judge of appeal DK Raja becomes attorney general, and the bench of lawyers faced in 2014 is extremely hostile. The WORST equality decision in the history of the commonwealth. We were 1 month away from having it struck down in 2014. Just to show how different it is now, the former judge of appeal is now in private practice, in 2018 he comes to say 377a is unconstitutional. In 2018, the notwithstanding so-called last word from a hostile judge, the door will still be open.

Q: With the more recent challenge together with the others who fought the cases, what was the expectation of success, how optimistic?

No expectation of succeeding, the experience of 2012 was legally speaking traumatic for the team, because at that point when the 2012 challenges started, the argument seemed too clear in the wake of the Tan Eng Hong judgement that the courts would strike it down, and then to have victory snatched from us - and one of the worst and most conservative judgements on jurisprudence to come out from that… Not hopeful that what had worked in India would work in Singapore. Ultimately, the pessimism was not warranted because the judgement in 2022 Feb was much better than in 2015, but ultimately it still upheld the constitutionality of 377a. The 2022 judgement was the best we could have hoped for because after that the govt. read the writing on the wall and used it as a premise (rightly or wrongly) for repeal.

Q: One of the justifications that they raised was that this law was in real danger of being struck down in a future judgement. Was this really a possibility that a potential further challenge would have been struck down if the parliament didn’t pass judgement on it?

No, but also it’s a bit less of a concern now because we got part of what we wanted. From the movement standpoint, we learnt that if you don’t push them they won't move, they can give whatever stupid justifications they wanna give, the “we thought about it from 1998”, etc etc. No matter how disingenuous the rhetoric is, we need to keep pushing.

Q: What did we expect when we imagined the law being stuck down vs what did we actually get?

There were rumblings just before repeal - signals being sent that it would not be a complete and full victory - closer to repeal, the million dollar question in everyone’s mind was what is the final legislative product going to look like? Nobody knew, even in the PM’s national day speech, nobody knew what they meant by amending the constitution to strengthen and protect marriage. There were 2 possibilities - and a period of guessing what the “protection” would look like - the first fork in the road that govt did not take - the fork that Christian fundamentalists were pushing the govt to take - to hardwire the definition of marriage in the constitution -marriage is only between man and woman. Instead what the govt decided on was - only the parliament may pass laws in respect of protecting the institution of marriage specifically and following from that, other areas that are related to the protection of marriage and family including public housing, education, and broadcasting - the government said only WE will be able to decide if we wanna change the definition of marriage in the future, the courts cannot do that. We don't want the courts deciding in the court of appeal by a 3-judge bench that marriage is now going to be between man and man or woman and woman. That's also why they repealed 377a. Not good guardrails - but not as bad as they could have been.

In a way, that hasn’t changed the route to marriage equality other than cutting off the courts route - so the constitution doesn’t state what the definition is, it simply refers to the women’s charter, and the womens’ charter can be changed by a simple majority in the parliament.

Q: On the repeal parties, what was the mood - was it exuberant or muted?

Very cathartic and tiring and unsatisfactory - joy, anger, fear, uncertainty. The amendment and repeal were set up was a framing trap - in no other country in the world has the movement to decriminalise been forced to so immediately confront the institution of marriage - the trap was that immediately after repeal we were transported to having discussions about the institution of marriage - how do you push back without seeming like you want marriage equality TODAY? Afraid - didn’t feel ready to answer those questions. Despite knowing our personal wishes, are we ready to publicly push for that at the same time that we have just gotten repeal?

Q: Rewind slightly to 2012 on the origin of Pink Dot– how much was it a response?

Continuum: started with the AWARE saga circa 2009.
Recap of aware saga: Christian fundamentalist women trying to take over an independent secular organization.
A lot of the impetus happened due to 2007 – in parliament due to disparaging remarks against the community made by Thio Li-Ann. Before that advocates weren’t connected– then in 2007, there was that connection and movement that was sparked.

Parliamentary debate seems to serve as a barometer for public opinion – what they think is acceptable to the public. For example, the 2007 disparaging parliamentary remarks made in contrast to recent remarks made in support after repeal. How has public opinion on 377A and the feelings towards the queer community has changed over the 15 year period?

Re: parliamentary debates, in 2007 the fact that people were able to say those things shows how public opinion was. How has public opinion on this issue changed in this 15-year period?

Pink dot cannot take all the credit. There has been a worldwide shift in perception. In the first year, 2009, we didn’t know if anyone would come - it was a 2-fold thing where protests in honglim park were taboo for every Singaporean. People had seen what had happened earlier. How do we get people to come down? Will the LGBT+ community be willing to come into the sunlight? We had clubs and saunas but all were hidden away. People writing to us after 1st pink dot saying I managed to wear pink but could not cross the road to come over to Honglim park. Our mission has always been to change hearts and minds, never really abt 377a in the beginning. As we grew and included things, in 2011 had our first community tent with mats on the floor, we looked at the different problems that we faced, the 1 problem that came up, again and again, was 377a (education, media censorship, healthcare, bullying in school, reaching out to MSM) it affects the whole community and every single piece of discrimination we are fighting now.

Pinkdot has become increasingly youthful, bringing on younger people to help us address the change in the demographic, the oldest members are still at Pinkdot. when we do have engagement with the authorities, such as direct engagement with the police on organisation, we keep emphasising to them as well, that come and have a look at the youthquake that is Pinkdot. It does make them pick up their years because they’re concerned about the younger demographic (the future electorate).

The community booth at Pinkdot, took results from 2 IPS studies done about attitudes towards repeal of 377a. The marginal move in public opinion was notable but wasn’t significant. we did some projection as to when we thought that the plurality of public opinion of repeal would be ok, it was projected to be 2017; at the point of repeal there was a whole bunch of polling done by black box - a plurality of individuals from 17-31 yrs old were in the favour of gay marriage (2019)? The reality is that this is probably closer to where Singapore is now.

Anecdote heard at the time: “I managed to wear pink but I didn’t dare cross the road”

The overall mission of Pink Dot is to change hearts and minds.

The Community tent used to be mats on the floor upon the initial organisings.

The one common problem found that persisted across the community – 377A.

Q: 377A legalistically implicates trans women, and gay men, but is used as justification for all queerphobic sentiments. Is the way the ground has shifted a surprising one?

What is surprising can be seen in the makeup of who attends pink dot.
The increasingly youthful attendance, changes in demographic.
It’s great to see – when there are engagements w/ the authorities, police, how to organize – all the way to govt level – to engage them to come and have a look at the “youthquake” that is pink dot. Their “the future electorate”.

Q: The government stated “we will repeal”. The justification raised was the law was in danger of being struck down in future challenges – they had to prevent that , to control the the situation – so that institutions would not be struck down overnight. Would this have really been a possibility?

Nah.

But

Keep pushing. No matter what justification is needed.

Q: When the court challenge was rejected (2019), and thrown back to parliament it still felt like a defeat. Yet not even a year later, the govt announced that repeal would happen – was this surprising? After the challenge to court failed?

Yes, it was surprising. Despite general optimism among activists, there definitely was thinking that (this), “might not happen in our lifetime”.
It happened really quickly, took us by surprise.
Henry Kwek the MP for Kebun Baru (PAP) news broke coming to pink dot in June – this raised their hopes, being groundbreaking, then things happened very quickly.
The first time MPs physically showed up – Kenneth Jeyeratnam, Nicole Seah, dr Chee with family – there have been opposition politicians, but none of them would be in office at the time.

Q: Why was this a signal to you? Was the PAP wanting to see how people would react?

It was a full-on PR exercise – with their official PR folks, who called beforehand, with CNA, ST, all the press there. They wanted to be seen there – not just coming down and doing a walk, they wanted to make a show of it.

Talk about the actual fact of repeal: what we imagined vs what we actually got.

Politically, it gave us a win, but it also took something away from us – some friends are incredibly unhappy about the ruling.

Q: Is the repeal still a significant milestone worth celebrating?

We don’t consider it a huge victory in the community, in terms of addressing all the issues that the community faces- it all came back to 377A e.g censorship in the media, healthcare for men who have sex w/ men, MOE and LGBTQ kids in school – institutionalized discrimination – legality as the issue.
Everything comes back to 377A so at least we’ve gone past that. IMDA, MOE – nothing is going to change – we’ve repealed but nothing is going to change – but we have to take this in context – at least we have that gone, we have to appreciate that that was a huge, huge obstacle that stood in the way, it will take less than 15 years for us to address the other remaining issues.

Q: How do you feel about the overarching theme of the govt’s decision being that, “we have to do this, otherwise the courts will do something about this.”

We take the win, but with the pending workplace discrimination bill – gender identity, sexuality, not included in the bill – if you’re going to legalise what discrimination in the workplace is – why would you leave out a group that is facing discrimination? A stronger message – people DO know we shouldn’t discriminate by age, race etc – but not by SOGI (Sexual Orientation or Gender Identity).

Q: We might have marriage equality someday, but what about the other concerns that now we don’t have 377A as the rallying point, where are we as a community?

Workplace discrimination – it doesn’t rile people up, but it is something that we need to try and do our best to address. Hard to change, but what we hope to do is work out some roadmap on when we can include SOGI, the steps we take to get there.
Education – families, perceived threats to family – civil partnership, marriage, adoption, transnational spouses, long-term visa – mundane but important things we need to address. Whether these come before marriage, there is no real one thing that is more important than the other and we as a community we need to address that – making a difference, stepping forward to address these things, different areas, different groups can specialize in.

Q: What else are the concerns that we are facing today - other than directly jumping to marriage equality - what are the low-hanging fruit?

This is a great moment especially for cis gay men to take a step back and acknowledge and say thank you for the solidarity that we have gotten from everyone on the spectrum towards repeal. There were so many times when we had groups that weren’t directly targeted by 377a had our back - groups like AWARE - who put their organisation on the line for us - now’s the time to acknowledge that and it's the time to give back - they stood with us because it was discrimination, not just against gay men. Recognising that requires everyone who has benefitted from that solidarity to look more intersectionally and see how can we learn past our lived experiences and priorities and how can we make sure we’re all free and equal. That's to me the great “promise” of repeal.

Q: There are a lot of ways in which the issues that attack our community overlap with other communities - it affects transnational families, single-parent families, as we come to this moment of opening up this issue of 377a, what’s next? Where do you see the road ahead?

Speaker: Can’t speak for Ready 4 Repeal because we haven’t sat down to map out what we’re gonna do. Have started working on Q chamber, which is trying to pitch itself as Singapore's first chamber of commerce. Important to bring power from business into social movements and redirect resources and build community equity and see where we can link that up and channel that and capacity build across our NGOs. Globally looking at where international movements have gone after decriminalisation, and trying to contextualise our moment in history. Just a personal journey of looking at where to go next and how to get there.

Pink Dot will keep doing what it does – changing hearts and minds at the end of the day. We do take on different themes every year and we’ll keep doing it -it’s all those issues we faced that we’ve already talked about – stay tuned to find out what this year’s theme will be.

Question from the floor:

Regarding the origins of Pink Dot, there was crucial info left out, from the initial rallies w/o police permit, Indignation 2007, to the pink picnic – illegally dressing up in pink and having a picnic – year after year, and how the wearing of pink was specifically begun during eh 2007 377A.

When Indignation was born, there was an idea to do a party – determination – v. Indignation.

Q: Does the law being gone influence the mindset of the people?

We can’t expect people’s minds to change overnight – it’s not the be all end all or the cure all – but psychologically it does change a lot of things especially because in Singapore everyone listens to the govt – it’s so much easier or more difficult for parents to understand when a child comes out to them that now you’re a criminal, now this is against the law – that is a very big change in mindset – someone who is in that mindset thinks ,“Oh, my son is a criminal” – now there’s a whole conversation, that makes a big difference.

Q: On the 377A trickle down effects – the ministries immediately made statements that all these effects would stay – personally as a teacher, the ministry has reinforced the trickle-down effects in schools. It was mentioned that the other issues to tackle would go in 15 years – how would this happen given that at this point they would reinforce these trickle-down effects?

It’s just a gut feel- there is a certain momentum that this win has given us. We’ve gone all our lives, most of us, where we’ve not had a win, a significant win – and as complex as this one has been, it’s given us encouragement. In terms of the dialogue with the govt – a double-edged sword – but still critical. It is a much stronger relationship than it was five years ago – a combination of that and the community groups and the work that we do, will help propel things quicker. We also have demographics on our side – these young people, the surveys referred to – that tide will keep coming.

Practically, the way the trickle-down effects work - in broadcasting regulation and laws like the societies act, you have broadly framed parameters for what is permissible or not permissible based on public morality - where films can be banned, societies denied registration, that was a direct - lot of LGBT content that was cut out was on the grounds that 377a made acts of gross indecency non-permissible - now that the rationale for that is gone and the minister for law and home affairs has come out and said they are family & deserve respect and acceptance, we need to take the good stuff, hear it and use it in our advocacy when we push back against workplace discrimination and things like IMDA telling us they’re gonna retain content censorship, in schools where we tell MOE that if you don’t recognise gender identity it’s gonna cause verifiable health effects - you don’t have a veneer of public morality of social morality - were deserving of your love and respect.

Q: What are some practical ways that we can take to rally behind your movement, our movement, as we inch towards equality?

As a community, whether it’s Pink Dot or other orgs, we are for the most part completely volunteer-led – it’s really important that we have more people step up to the plate and volunteer. We are a youth-oriented movement right now and we’ve been looking for young people to join our steering committee, we’ve had three or four new members that have joined us recently, it’s great to have their voices.

Get involved, is the simple answer, there are so many areas, groups doing great work, such as Young Out Here which is specifically looking at youth and what they can do; Transbefrienders, which is focused on young kids. Get involved.

Q: Since marriage is such a hot potato, what’s the distinction between civil partnership and marriage and would there be any strategic benefit advocating for civil partnership?

Civil partnerships are the intermediate, even Swiss civil partnership until recently didn’t translate into marriage equality, and didn’t give full rights until quite recently. What is heard and not heard in the state rhetoric about civil unions is cause for hope. What isn’t heard is that there are no principled arguments against same-sex marriage - a lot of society is ‘apparently’ not ready - at a future date if the parliament decides its ready to do so - it should do so without having to grapple with a constitutional amendment. Marriage is going to be difficult but if we make the case broadly enough and change enough hearts and minds, it isn’t completely off the table.

Lawrence wong says “the definition of marriage will not change under my watch”, and he said nothing about civil partnership - omission is an opportunity - first we convince our community, then the larger society - a lot of resistance can come within the movement of what is the right time to surface the issue and push that line - different people at different times will have different answers to these questions.