Reaction of LGBT community to Court of Appeal ruling in Tan Seng Kee v AG and other appeals, 28 February 2022

On Monday, 28 February 2022, the Court of Appeal released its judgment on the constitutional challenge to Section 377A of the Penal Code in Tan Seng Kee v AG and other appeals firstly at 10am to the 3 appellants' lawyers and later at noon to the media,,,,,,,,,,. The court, led by Chief Justice Sundaresh Menon, upheld the High Court's decision to dismiss the three challenges to Section 377A but declared that the statute was “unenforceable in its entirety” until the Attorney-General of the day signalled a change in the prosecutorial policy.

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=Roy Tan=

Reacting to the court's decision, lead appellant Roy Tan Seng Kee described it as a “partial but significant victory for the LGBT community”. He said: “Although, on the surface, it may be disheartening that the apex court has not ruled Section 377A unconstitutional, it has however declared the statute "unenforceable". This will have numerous legal and social ramifications that will play out in the months and years to come.” Tan said he had filed an application in the High Court seeking an order to compel the Cabinet to move a Bill to repeal Section 377A. Tan's lawyer, M Ravi, also elucidated his optimistic views during a press conference held soon after the release of the judgment,,:

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In stark contradistinction to M Ravi's sanguine interpretation of the judgment, the other appellants, as well as the vast majority of LGBT groups were dismayed at the news.

=Johnson Ong= Johnson Ong released the following statement and a more personal video on Facebook,:

“I am disappointed with the outcome but the ruling does not mean the end of the community’s pursuit for equality. I want to thank my fellow litigants, our respective legal counsels and everyone who has shown us overwhelming support over the years.

I want to reiterate the devastating impact of S377A on the mental and physical well-being of the LGBTQ+ community. It encourages discriminatory treatment towards queer people and denies the equal rights and protection that LGBTQ+ Singaporeans deserve.

This antiquated law undermines the principle of equality in our modern and diverse society.

Although the non enforcement of S377A offers a small step towards the LGBTQ+ community’s freedom from discrimination and oppression, it will take more time before the LGBTQ+ community finds full recognition and acceptance by policymakers and society. It has always been an uphill struggle for the community but we will not stop making progress in our fight for a genuinely open and inclusive Singapore.”

US LGBT rights organisation GLAAD also uploaded the video of Ong's reaction to its YouTube channel:

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=Bryan Choong= Bryan Choong penned the following statement on his Facebook accompanied by a still frame from the Pink Dot 2012 campaign video:

"Dear friends, members and allies of the LGBTQI communities, the Singapore Court of Appeal has just dismissed the constitutional challenge on 377A mounted by Johnson Ong, Dr Roy Tan and myself.

Needless to say, we are upset and disappointed with the judgment. Many of you must be feeling just as emotional as those who have worked relentlessly on this.

We have tried again and unsuccessfully this time.

I want to thank Senior Counsel Harpreet Singh, Remy Choo, Priscilla Chia, Jordan Tan, Wong Thai Yong and many members of the team who brought their skills, expertise and positive energy to this challenge. They did their best in taking our case to this stage and I am blessed to work with them.

Today's judgment from the Court of Appeal does not mean our work to make Singapore a more inclusive and accepting society will stop.

I urge those who believe that Singapore should repeal 377A, to come forward and work with us and the LGBTQI community organisations. We have a lot of work ahead for us and your contributions can help.

For now, if you know anyone who might be affected emotionally by the news, please give them the support that they need. Many community organisations are now in place to provide emotional support. Oogachaga Whatsapp Service 8592 0609 will be available if anyone just needs to talk.

It has been more than 17 years since I started volunteering and working for the community as a clueless volunteer. There are definitely ups and downs throughout the journey. My commitment to our social cause remains unchanged and I will contribute my energy where I can be helpful.

One day, we will see the changes we believe in." 

=Pink Dot=

Pink Dot SG published the following statement on its Facebook page:

PINK DOT'S STATEMENT ON THE COURT OF APPEAL'S JUDGEMENT ON SECTION 377A

In a devastating blow to Singapore’s LGBTQ+ community, the Court of Appeal has dismissed the constitutional challenge of Section 377A, choosing instead to side-step the issue and leave the law intact.

Despite the many arguments advanced by the appellants about the harmful effects of Section 377A, the judges of the Court of Appeal narrowly honed in on the uncertainty and untidiness of the government’s political promise of non-enforceability.

As such, while the ruling clarified the constitutionality of the government’s compromise, it has left the LGBTQ+ community behind yet again, without any adequate remedy or relief from the ongoing discriminatory effects of Section 377A.

Pink Dot SG is profoundly disappointed by the Court’s decision today. The acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort. Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life: at home, in schools, in the workplace, in our media, and even access to vital services like healthcare.

Pink Dot SG is also deeply troubled by how it was cited by the Court as an example of how Section 377A does not “generate a chilling effect that stifles advocacy”. Pink Dot SG and other LGBTQ+ rights advocates exist in spite of impediments like Section 377A, and we should never be used as examples to minimise their impact or justify their retention.

“Today’s ruling is frustrating for those who were hoping for some real change.” says Pink Dot SG’s spokesperson Clement Tan. “Despite acknowledging that gay men should be able to live freely in Singapore, without harassment or interference, the court still hesitated to strike it down. It now falls on Parliament to deal the final blow to Section 377A.”

Pink Dot SG urges Singapore’s leaders to act urgently and decisively to repeal this redundant law.

Minister for Law and Home Affairs K Shanmugam has reiterated on multiple occasions that LGBTQ+ persons would be protected, adding that “we are not any lesser by reason of our sexual preferences”.

More recently, Finance Minister Lawrence Wong promised that the government would do its utmost to “recognise the challenges and needs of different groups”. He vowed that the government would “never let any group feel unheard, ignored or excluded.”

Allowing 377A to remain on our books is incompatible with these promises, and our nation’s purported values of justice and equality. It is time for our leaders to go beyond maintaining uneasy compromises and take affirmative steps towards equality.

Finally, Pink Dot SG thanks Mr Bryan Choong, Mr Johnson Ong and Dr Roy Tan and their legal teams for their courage in challenging this unjust law.

Pink Dot SG encourages anyone overwhelmed by today’s judgment to seek emotional support from LGBTQ-affirming mental health professionals including:

Oogachaga; Email: CARE@oogachaga.com; WhatsApp Counselling: 8592 0609; (Tuesdays to Thursdays: 7-10pm, Saturdays: 2-5pm)

Samaritans of Singapore; Email: pat@sos.org.sg; 24-hour Hotline: 1-767

=Ready4Repeal=



Ready4Repeal published a community statement from various LGBT groups in Singapore on its Facebook page.

COMMUNITY STATEMENT FROM THE LGBTQ+ GROUPS OF SINGAPORE

We, as organisations advocating for LGBTQ+ equality in Singapore, are disappointed with the Court of Appeal’s landmark ruling on Section 377A, which comes as a setback for all who were hoping for a resounding conclusion to this decades-long fight for equality. Despite recognising the current situation as deeply unsatisfactory for the LGBTQ+ community, the Court of Appeal has still decided to retain the law, albeit with legal assurances on its unenforceability.

We acknowledge the statements of support made by the judges in their ruling. They made assurances that homosexual men have a place in our society and can live freely, “without harassment or interference”.1 They also agreed with one of our biggest contentions with the government’s promise of non-enforcement: that it is so uncertain and precarious that homosexual men cannot have any reasonable certainty about its application.2 It is in response to this that the Court of Appeal has taken the government’s promise and imbued it with legal character, ruling that the entirety of Section 377A would be unenforceable in matters of prosecution.

While this is a small step in the right direction, this simply does not go far enough to provide real protection to the LGBTQ+ community, who continue to be impacted by the cascading effects of Section 377A. In fact, the judges themselves acknowledged that even with the assurance of unenforceability, homosexual men will still be left open to police investigations as if a crime had been committed.3 The retention of Section 377A means that LGBTQ+ Singaporeans continue to be harmed in fundamental ways: in health, housing, education, employment, and representation. It is an impediment to LGBTQ-inclusive policies. It is a barrier to LGBTQ+ people who are seeking help. It denies LGBTQ+ students a safe and conducive learning environment. It justifies censorship. It perpetuates discrimination and violence in our society, and obstructs justice for victims of crime. It impacts families and livelihoods. The Court’s reluctance to address these issues head-on has resulted in a missed opportunity for true progress to be made.

We also take issue with the court’s assertion that Section 377A does not stifle advocacy. LGBTQ+ organisations in Singapore have historically struggled precisely because of the existence of Section 377A and its cascading effects. We know first-hand how the meaningful work we do is stymied from a lack of access to critical funding and restrictions on our legal status, all because we are perceived as existing for an illegal cause or an illegitimate purpose.

The LGBTQ+ groups of Singapore stand ready for discourse, as we have always been. Minister K Shanmugam and Minister Lawrence Wong have both reiterated that the law protects the LGBTQ+ community from threats and violence, and “the Government will not let any group feel unheard, excluded or ostracised.” If the Government is committed to protecting the community, it must engage community groups and take decisive action towards a more equal and just society.

Despite today’s disappointing outcome, the whole community owes a debt of gratitude to Mr Bryan Choong, Mr Johnson Ong and Dr Roy Tan and their legal teams. They have made history, along with Mr Tan Eng Hong, Mr Gary Lim, Mr Kenneth Chee and their respective legal teams.

Finally, we know from past experience how the weight of this ruling may reinforce prejudices and embolden discrimination, and are gravely concerned that will amplify existing mental health crises within our community. Emotional support is available for anyone who needs it during this difficult time. We have provided a list of them below:

Oogachaga: Oogachaga provides the LGBTQ+ community in Singapore safe and confidential services in the form of WhatsApp, email and professional counselling. Tel. 8592 0609, https://wa[dot]m/6585920609; (Only messages, not Voice or Video Calls); 7pm to 10pm on 28 Feb, Monday to 3 Mar, Thursday; 2pm to 5pm on 3 Mar, Saturday; care@oogchaga.com (daily)

Samaritans of Singapore (SOS): SOS provides an anonymous, confidential and safe space for anyone in a crisis. Tel: 1767; pat@sos.org.sg; Care Text via ChatBox function; 24 hours, 7 days a week

Institute of Mental Health (IMH): Helpline 6389 2222; 24 hours

For non-crisis LGBTQ community support resources, please refer to our social media.

This Community Statement is prepared by Ready4Repeal, and is co-signed by the following organisations:

Aces Going Places, AfA Singapore, Free Community Church, Gayhealth.sg, The Heartweavers, Inter-uni LGBT, Kaleidoscope, My Queer Story, One Queer Cher, Oogachaga, Pink Dot SG, Project X, Prout, Quasa, Sayoni, The Healing Circle, Singapore LGBT Law, SG Rainbow, SG Boys, Young Out Here

=Action for AIDS=

Action for AIDS published the following message on its Facebook page accompanied by a series of posters:

"AfA Singapore is deeply disappointed that Section 377A will continue to remain in our statute books.

We would like to thank Mr Bryan Choong, Mr Johnson Ong and Dr Roy Tan and their legal teams for their courage and selflessness in fighting for the rights and dignity of gay men in Singapore. They have made history, along with Mr Tan Eng Hong, Mr Gary Lim, Mr Kenneth Chee and their respective legal teams."



Editable text of the posters:

Statement from AfA Singapore on the Impact of Section 377A of the Penal Code on HIV/AIDS Prevention and Care

AfA Singapore is deeply disappointed that Section 577A will continue to remain in our statute books.

We would like to thank Mr Bryan Choong, Mr Johnson Ong and Dr Roy Tan and their legal teams for their courage and selflessness in fighting for the rights and dignity of gay men in Singapore. They have made history, along with Mr Tan Eng Hong, Mr Gary Lim, Mr Kenneth Chee and their respective legal teams.

A] Section 377A strengthens and perpetuates Stigma and Discrimination of Men-who-have-sex-with-men (MSM) and Persons Living with HIV/AIDS (PLHIV)

The number of HIV cases acquired through MSM transmission has been steadily increasing over the years. There continue to be delays in HIV diagnosis and counseling, as a result of which many patients only seek treatment in late stages of HIV infection.

1.Stigma and discrimination are the main barriers to early HIV testing and diagnosis. The main structural obstacle that perpetuates stigma and discrimination of MSM, as well all other persons living with HIV/AIDS in Singapore, is Section 377A of the Penal Code.

2.Section 377A makes criminals of all MSM. They fear that if they go for HIV testing, they are admitting that they engage in illegal activity. Section 377A therefore stigmatizes HIV infection.

3. As a result of Section 377A, MSM are looked down upon as immoral individuals deserving of discrimination. The fear of being identified as homosexual or possibly homosexual deters many who are at risk of HIV infection from seeking timely HIV testing and delays care, support and treatment of their illness. This fear applies to all men, homosexual, bisexual as well as heterosexual men.

4. Earlier diagnosis and treatment will mean better health outcomes for patients and lead to better HIV prevention and control of the epidemic in the Singapore.

B) The Negative Impact of Section 377A on HIV Prevention

1.Section 377A has stifled HIV prevention campaigns for MSM, in particular those who are not 'out' and are under the radar and do not patronize gay identified venues. MSM who do not patronize these venues cannot be reached by these educational campaigns centered in these venues.

2. As a result of the 377A, behavioural research of gay and other MSM identities and sexual behaviors in Singapore has been difficult. This lack of data has hampered efforts to design more effective HIV/AIDS education and prevention programs for MSM.

3.The existence of Section 577A has made it difficult to reach young MSM. School-based programmes do not provide information and materials that discuss homosexuality in a sensitive and unbiased manner, these programmes do not include accurate or useful information of relationships and safer sex practices relevant to MSM.

Young MSM are therefore marginalized, they are not provided important information and advice, this has resulted in young MSM being especially vulnerable to Sexually-transmitted Diseases (STI) and HIV infection compared with their heterosexual peers.

4. Section 377A has meant that mass media HIV prevention campaigns are largely irrelevant to MSM. For example, they contain messages advocating no sex until after marriage and do not include MSM relevant information, like the promotion of condom use for anal sex. Such mass media campaigns are difficult to conduct given that issues relating to homosexual sexual activity cannot be discussed because of the continued ban as a result of Section 377A.

5. Section 377A stifles the organization of community organisations for MSM. Community groups are crucial for the success and sustainability of programmes that reach out to, support and educate members of the MSM community who are not reached by existing HIV prevention campaigns. We firmly believe that the repeal of Section 377A will significantly strengthen HIV and STI Control Programmes in Singapore, not just for the gay and other homosexual men, but indeed for everyone.

Prof Roy Chan

President, AfA Singapore

=SAFE= On 2 March 2022, SAFE (Supporting, AFfirming and Empowering our LGBTQ friends and family) published the following statement on its Facebook page:

SAFE SINGAPORE DISAPPOINTED THAT APPEAL AGAINST SECTION 377A HAS BEEN DISMISSED

SINGAPORE - We are a group of family and friends of LGBTQ persons. We are disappointed and dismayed when we read the Court of Appeal's decision to dismiss the appeal against section 377A (https://www.channelnewsasia.com/singapore/court-appeal-dismisses-challenges-377a-law-criminalising-s ex-men-2524431)

The law technically only criminalises sex between gay men, and the Attorney-General has said it will not pursue cases under th is law. In real life, the impacts can be felt in many areas of life. Our LGBTQ children, siblings and friends are continually stressed in their daily lives. At work, they have had to censor parts of themselves for fear that they may be discriminated against at promotion time, or that they may even lose their jobs.

In schools, our children, nieces, and nephews face hurtful comments and bullying from peers and even teachers and staff. Most of the well-meaning adults think that they are steering impressionable young ones away from what is criminal under the law. However, our children may end up feeling that they are not welcome in society, resulting in many cases of depression and suicide ideation and even attempts. We have journeyed with our loved ones over the years, and we see their pain and struggles. We firmly believe that our sexuality is not simply a choice we make when we wake up in the mornings.

While some may argue that none of the above has anything to do with the law, they are very real downstream effects that the law, which by its existence condones such attitudes. Imagine if there was a law stating that marriage between people of different races were illegal, but that the AG declared that they will not enforce it. We doubt many of us will support that law.

Why then are we ok with accepting this unenforced but ever-present law when it comes to our LGBTQ brothers, sisters, and children?

We named ourselves SAFE Singapore because we hope that we can be one of the few places in Singapore where our loved ones will feel SAFE. If you know and love someone who is LGBTQ, you do not need to remain a part of the family that is not spoken about. You can tell your friends and societythat we are proud of them. Together, let's support, affirm and empower our LGBTQ family and friends.

About SAFE Singapore

SAFE (Supporting, AFfirming and Empowering our LGBTQfriends and family) is a support group founded in December 2006 by a team of 4 heterosexual women to provide information and resources for straight people struggling to accept their queer friends and relatives.

Its mission is to form a network of support, affirmation and empowerment for fa mi lies and friends of LGBTQ persons by providing information and resources and encouraging dialogue that promotes respect for human diversity and the well-being of all lesbian, gay, bisexual, transgender and queer/questioning persons.

For more information on this statement or on SAFE Singapore, contact safesinganore@gmail.com

=Human Dignity Trust=

Human Dignity Trust, the only organisation working globally to use strategic litigation to defend the human rights of LGBT people, updated the article about Singapore on its website to include the Court of Appeal judgment and uploaded a video to its YouTube channel, urging the Government to reform laws that discriminate against LGBT people:

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=See also=
 * Section 377A of the Penal Code (Singapore)
 * Archive of Court of Appeal judgment in Tan Seng Kee v AG and other appeals, 28 February 2022
 * Discrimination against homosexuals in Singapore

=References=

=Acknowledgements=

This article was written by Roy Tan.