ST Online Forum: Gay debate continues: Writer responds (May 17 2007)

ST Online Forum

May 17, 2007

Gay debate continues: Writer responds

I REFER to Mr Brian Selby's letter, 'Why is male homosexuality a crime but not lesbianism?' (Online forum, May 15), written in response to my three-point rebuttal (ST, May 10) of his first letter, 'Professor's views on gays prejudiced' (Online forum, May 8), which he wrote in reaction to my op ed, 'Decriminalising homosexuality would be an error' (ST, May 4).

I thank Mr Selby for his unreserved apology, in relation to the personal and professional allegations made against me in his letter of May 8.

Clearly, the decriminalisation of homosexuality as one aspect of a broader homosexual rights agenda raises politically controversial issues. This has provoked polarised responses and have caused deep social rifts in countries like the US and Canada.

My op ed sought to inform the debate by highlighting relevant legal social and policy issues which will need to be considered in the context of Singapore's multi-racial and multi-religious society by the Government.

I reject Mr Selby's suggestion that my op ed and rebuttal have been deliberately 'vague'. The first was intended for general readership and the intent of the second was not to provide a substantive discourse of these controversial issues of law and social policy, given the restraints of this forum. One might equally ask Mr Selby to substantiate his own views to prove his case.

However, as Mr Selby has in his latest letter highlighted certain issues for my response in a civil fashion, I make the following observations:

First, I agree that my op ed has attracted a substantial amount of debate generated by websites and blogs written by certain individuals of a self-declared 'liberal' or homosexualist persuasion.

However, I do not share Mr Selby's delight in what he calls the 'muddle scrum of public debate'. The right to free speech which the Constitution safeguards for Singapore citizens is not absolute but subject to express limitations.

Not all types of 'speech' will help 'Singapore become a better civil society' as certain types of 'speech' seek to prevent the articulation of differing viewpoints through intimidatory and hateful tactics.

''Speech' which attacks my character or professional ability seeks to chill my rights of free conscience and speech as a concerned Singaporean as well as to violate the principle of academic freedom.

Further, 'speech' which demonises and labels the views expressed in my op ed as 'religious' or 'bigoted' opinions, in an attempt to paint them as irrelevant to an important public policy debate within the context of a multi-racial, multi-religious Singapore, may well be an insidious cover-up for subjective prejudices and biases. This undermines pluralism and constructive debate.

Some comments thrown up in this debate seem to indicate that arguments based on or inspired by 'religious' values should be excluded from public debate. This rests on a certain assumption about what a secular state requires.

The assumption seems to be influenced by one school of constitutional thought that 'Church' (or Mosque or Temple) and 'State' be strictly separated. This version of 'secularism' rests on an unspoken anti-theism and is not universally endorsed.

There is a broad spectrum of positions which countries have adopted in relation to the role of views inspired by religious convictions in public debate.

This ranges from anti-theistic separationists (for example, Stalinist regimes or radical liberals/'secular fundamentalists' ) who seek a 'religious cleansing' of the public square, to those who seek a genuine pluralism by protecting the expression of all moral viewpoints whether based on 'religious' or 'secular' convictions (assuming these can even be separated). All viewpoints are subject to public scrutiny and debate, rather than being censored by law or social pressures.

Indeed, Singapore's version of secularism is not benighted or anti-religion; Singapore is secular but not atheistic, as a minister once stated. Singapore's model of secularism is more appropriately characterised as agnostic or accommodative as defined by the Singapore Court of Appeal, which is committed to freedom of religion and the role of the state in removing restrictions to one's choice of religious belief.

Therefore, in our aspirations towards democracy, no view should be gagged just because it is identified as a 'religious' one. Otherwise, secular humanism and its morally relativist viewpoint, which forms part of its comprehensive world view, would by default be privileged and foisted on society as a new sort of 'secularised religion'.

Second, there are medical opinions that homosexual sex (that is, anal sex) is inherently unhealthy.One may argue that this is a 'private' matter, affecting only individuals who contract diseases such as 'gay bowel syndrome'.

However, this is a narrow view of what amounts to 'public health' concerns, given that the activities and diseases of individuals may affect the public at large.

Further, the possibilities of allocating public funds to resolve these sorts of health problems make this a matter of public concern as it could mean that funding for research into other illnesses like cancer and diabetes is reduced.

Concerned citizens who would like to be informed on this matter may usefully refer to the medical opinion of one Dr John R. Diggs, Jr's (August 16, 2000), which was set out in his affidavit in relation to a Massachusetts lawsuit (concerning homosexual activists' legal claims against parents who opposed sexual 'orientation' education in schools):

'There are a variety of significant medical and health risks associated with homosexuality and the gay 'lifestyle'. These include promiscuity, multiple sexual partners, assault and battery and anal intercourse. The sexual practices of male homosexuality consist primarily of oral-genital contact and anal intercourse. These practices are inherently dangerous because of the proclivity to produce occult and overt physical trauma, often spreading sexually transmitted disease. The rectum is particularly vulnerable to sexual trauma, where breaks in the protective membrane barrier facilitate blood exchange and, in turn, the transfer of infectious agents. Furthermore, certain male homosexual practices, such as 'fisting', that is, the insertion of the entire hand into the recipient's anal canal, are likely to cause more serious injuries... Studies have repeatedly shown that lesbians and gay men are at increased risk for mental health problems, including depression, substance abuse, and suicidal behaviour, compared to heterosexuals. .. Homosexuals perpetrate child sex crimes at a rate many times their number in the population.. .

'Full text available at http://www.massnews .com/past_ issues/2000/ 9_Sept/900fist3. htm

Third, my observations on the development of the homosexual rights agenda in countries like the US, Canada and Europe and how this seeks to coerce changes in moral and social attitudes towards a broad range of issues are factually based.

Mr Selby should consider the effects of decriminalising homosexuality in other jurisdictions, and how it affects the community, as documented in news reports and case law.

For example, if homosexuality is decriminalised, this will require changes in other aspects of law and life such as changes in insurance and tax benefits laws; schools may have to teach that a range of family set-ups (for example, having two fathers instead of a father and mother) is possible or that homosexuality and heterosexuality are morally equivalent.

This will violate the conscience of certain teachers and also can violate parental rights in the moral education of their children. This is not fictional nor can it be brushed aside as a 'slippery slope' argument. This would obfuscate matters which are of real concern to the majority of Singaporeans. Indeed, perhaps this is the intent of those deriding 'slippery slopes'.

Fourth, as stated in my op ed, the Singapore Constitution does not prohibit all types of differentiating classifications. In layman words, classifications which are not rational and do not serve a legitimate policy, are unconstitutional.

The critical issue is whether the criminalisation of homosexual acts has a rational basis.

The views in my op ed show the broader legal social and policy issues forming the rational basis for S377A of the Penal Code which criminalises homosexual acts by male.

To argue that S377A is not rational because the laws do not criminalise lesbianism assumes that the law must achieve a technically 'perfect classification' which includes all homosexual acts under its ambit.

There is no such requirement. Broader social objectives may be served by S377A, so as to validate it and its classification, under Singapore equality jurisprudence.

Fifth, Mr Selby has assumed that laws do not and should not affect our 'private activity'.

However, human beings while desiring a sphere of autonomy are also social beings and live in community. Laws do reflect community standards which place limits on 'private activity' - that is the basis for laws against incest, paedophilia or even surfing and downloading Internet porn, for example.

The critical question is what constitutes 'private' activity and when does 'private activity' have repercussions for the public, so as to be subject to legal regulation and sanction?

No law is morally neutral and it is intellectually dishonest to assert that there are moral values which are objective, and some which are subjective.

To call for the decriminalisation of homosexual acts, on grounds of non-discrimination on the basis of 'sexual orientation' is to assert a moral or amoral position which cannot claim 'neutrality' . No one is neutral in this debate.

The Ministry of Home Affairs has stated that 'ur enforcement approach also remains the same' as Section 377A will not be proactively enforced 'against adult males engaging in consensual sex with each other in private.'

This is the current practice and reflects a pragmatic compromise. This does not mean the law will not be enforced but one can take the government at its word to continue the current practice.

Thus, under the proposed Penal Code amendment, homosexuals wishing to lead 'private' lives may do so 'peacefully' in Singapore, provided they do not foist their homosexual acts on the public or seek to mainstream homosexuality as an acceptable lifestyle.

Yvonne C. L. Lee
Assistant Professor, Faculty of Law Deputy Director, The Asian Law Institute (ASLI)
National University of Singapore