14 February 2013 (Singapore) – The first of two lawsuits challenging the constitutionality of Section 377A of the penal code which criminalises “any act of gross indecency” between men were heard in the high court today.

The plaintiffs—graphic designers Gary Lim, 44, and Kenneth Chee, 37 (a couple for 15 years)—were represented by Mr Peter Low and Mr Choo Zheng Xi who argued the case before Justice Quentin Loh in a closed-door session. The named defendant is the Attorney General who was represented by the Public Prosecutor.

The main argument put forward by the plaintiffs is that S377A is “absurd, arbitrary and unreasonable” because, among other things, it criminalises something that individuals cannot change and is unclear on what constitute “gross indecency”.

The plaintiffs argue that its symbolic representation of public morality is flawed because there are many morally objectionable acts that the law does not criminalise. Yet, by leaving S377A on the law books, it causes psychological harm through stigmatisation, makes it more challenging for HIV/AIDS outreach, and causes gay men to become vulnerable to blackmail.

Section 377A fails the test of constitutionality because it is unclear as to what it criminalises (except for singling out gay men), when it is enforced, and—more importantly, how it achieves the stated objectives of the law.

In response, the Attorney General Chambers (AGC) put forward two chief arguments for retaining the section:

1) The legislature is entrusted by the constitution to enact laws on behalf of the electorate. According to the AGC, this puts the burden of proving that there is no justification for the law on the plantiffs. Furthermore, acts of parliament should be accorded the “presumption of constitutionality.” The AGC argued that it is entirely permissible for parliament to legislate for public morality, citing the example of other laws such as obscene publications, which operate along the same principle. While there may be other areas concerning public morality that parliament chooses not to legislate on, it is nevertheless “a choice that the legislature has made and it is empowered to do so simply because its actions are mandated by the electorate.”

2) S377A does not discriminate by sexuality-identification but by gender as it equally applies to non-gay identified men. The AGC then tried to justify this gender discrimination by referring to the 1921 House of Lords debate where it heard that women tend to share the same bed more often than men and hence more liable to blackmail and that proscribing lesbian acts will encourage women to commit the crime.

The judge has reserved judgment on the case; the same judge will be hearing the second lawsuit challenging the constitutionality of S377A by Mr Tan Eng Hong on 6 March 2013.