Repeal of 377A: Protecting the definition, sanctity of marriage

  • In his National Day Rally on 21 Aug, PM Lee Hsien Loong announced the government’s decision to repeal Section 377A of the Penal Code, which criminalizes gay sex between two men.
  • Marriage was brought into the discourse as parties such as religious organisations were adamant in preserving the standing legal definition of marriage between a man and a woman.
  • TheHomeGround Asia speaks to LBGT activists and families to find out the implications this has on the protection of marriage in the Constitution.
What is the meaning of marriage? (Photo source: Reuters/ Edgar Su)
What is the meaning of marriage? (Photo source: Reuters/ Edgar Su)

When Prime Minister Lee Hsien Loong announced the Parliament’s decision to repeal Section 377A at his National Day Rally speech on 21 Aug, he, at the same time, said his government will “uphold and safeguard the institution of marriage”.

He said under the law, only the marriage between one man and one woman is recognised in Singapore and that many policies rely on this definition. They include public housing, education, adoption rules, advertising standards and film classification.

While the landmark announcement of the repeal marks a significant milestone in the advocacy of LGBT rights for the community in Singapore, PM Lee said in his rally speech that the government “has no intention of changing the definition of marriage nor these policies”.

“We will therefore protect the definition of marriage from being challenged constitutionally in the courts. The legal definition is contained in the Interpretation Act and the Women’s Charter. We have to amend the Constitution to protect it, and we will do so,” he said.

What is the Women’s Charter?

Passed in 1961, the Women’s Charter protects and advances the rights of women in Singapore for legally sanctioned relationships. The charter is used as the basis and legal reference for all civil marriages in Singapore, except for Muslim marriages that come under the Syariah Law.

According to the Charter, “A marriage solemnised in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female is void.” 

Elaborating on PM Lee’s announcement that the Constitution will also be amended to protect the definition of marriage as that between a man and a woman from being challenged in the courts, Deputy Prime Minister Lawrence Wong and Second Minister for Law Edwin Tong said the government had studied the judgement by Chief Justice Sundaresh Menon that the law was “unenforceable in its entirety”.  

Mr Tong said the “significant risk” that Section 377A could be struck down on grounds that it breaches the Constitution’s Equal Protection provision, “so we felt we can’t ignore this risk and do nothing. Because if that happens, if 377A is struck down, our marriage laws will also come under challenge on the same grounds”.

377A marriage
Under the Women’s Charter, marriage is defined as being between one man and one woman. (Photo source: The Straits Times)

The Constitution of the Republic of Singapore is a Supreme law passed on Singapore’s independence, which was 9 Aug 1965 and Article 12 of the Constitution is a provision for equal protection where “all persons are equal before the law and entitled to the equal protection of the law.”

“This could lead to same-sex marriages being recognised in Singapore and this, in turn, will also have an impact on other laws and policies that are built on our existing definition of marriage,” Mr Tong told CNA.

The other laws which Mr Tong was referring to extends into areas of housing, education, child adoption, and media censorship.

The definition of marriage under the Constitution

In dialogues with respective stakeholders, religious organisations have called for the definition of marriage to be entrenched in the Constitution.

We appeal to the government to directly express a definition of marriage in the Constitution and declare that only such marriages will be recognised in Singapore,” said the National Council of Churches Singapore (NCCS).

“We hope that those who disagree with our views on homosexuality and marriage can understand why religious groups like the Muslim community will want to preserve and strengthen the institution of marriage, and we are glad that the government has given an indication to do so.” said Mufti of Singapore Nazirudin Mohd Nasir speaking to CNA.

However Mr Tong said that it “may not be appropriate to entrench something like the definition of marriage in the Constitution” as it would “elevate marriage to the same level as fundamental rights in our Constitution” and “fundamentally change the whole complexion and the schema of the Constitution”.

He added that the government is preparing “a very carefully calibrated package of amendments to strike the right balance”.

377A marriage
The government will be very careful in any changes made to the Constitution. (Photo source: The Supreme Court of Singapore)

Speaking on the legal complexities further in his interview with the Straits Times, Law and Home Affairs Minister K Shanmugam said that it is “not the intention” of the government to define marriage in the Constitution.

The minister added that the Government plans to state in the Constitution that Parliament has the right to define marriage to how it is defined in the Women’s Charter in order to make other pro-family policies from that definition.

“It will have to be dealt with in Parliament. So, if a party, a group of people, want to allow same-sex marriage, they will have to put that in their manifesto, fight elections, win the elections, get a majority, and then change the definition of marriage,” he said.

A family outside of a defined marriage

Marketing Interactive reported that 40 to 50 per cent of social media activity “expressed approval and joy towards the decision to repeal Section 377A”, while media intelligence company Truescope said 20 to 39 per cent “expressed disappointment” towards the decision.

Marketing Interactive also reported that media intelligence company Meltwater data “presented a different picture where sentiments are mostly neutral” at about 66 per cent, but “negative sentiments are pretty high” at 25 per cent.

Alternative media site Wake Up Singapore collated a subset of negative sentiments on social media that expressed the lack of further progression in LGBT rights. One such person is founding artistic director of W!LD RICE Ivan Heng.

The organiser of the annual rally for LGBT rights, Pink Dot SG also outlines future plans in a community statement released by LGBT groups on the repeal.

“Our immediate priorities in the wake of Section 377A will be to tackle the areas of discrmination that we continue to face at home, in schools, workplaces and, and in housing and health systems,” said the statement.

Speaking to TheHomeGround Asia, LGBT activist Dr Roy Tan says: “Since PM Lee has stated that the current definition of marriage as between one man and one woman will be enshrined in the Constitution, it is obvious that it will be impossible to achieve marriage equality in the immediate years to come.”

“As a consolation, we can get our politician allies to raise the possibility of tabling a Bill in Parliament to recognise civil unions as many of us have partners and are discriminated against in the areas of housing, hospital visitation rights, inheritance laws and the appointment of caregivers in accordance with the Mental Capacity Act.” he adds referring to a recent amendment of the Adoption of Children Act.

It was in 9 May that the Parliament passed new laws that prevented same-sex couples eligibility to apply for child adoption.

“We will basically be left on our own to do whatever we need to ensure that our family has a home, that (our son) Tyler has a school to attend, and that we will always have food on our table. We just have to ensure that we work hard just to continue to be self-reliant. We have always been self-sufficient and we have never relied on any subsidies or rebates that the government has because of this definition,” says gay couple Cameron Sutherland and Andre Ling.

The pair adds: “We feel like marriage equality and same-sex family rights are now more out of reach than ever. We feel that discrimination against us and our son will continue, and even more so now that discrimination seems to be subtly encouraged by the government expressing to maintain the definition of marriage and families. We are not a political issue in Singapore, but the government is making it so.”

Mr Sutherland and Mr Ling were married in 2018 in Australia and are dads to two-year-old Tyler who was conceived through surrogacy.

“I hope that the Singapore government sees what it is doing is literally pushing families out of Singapore. They need to see that these are also the families who work hard and also are happy to contribute to Singapore’s growth. They have to understand that the LGBTQIA+ community is not there to cause trouble but to let them know that we will always be here and will continue to grow regardless of whether they like it or not.” the pair says.

RELATED: Repeal of 377A: Singapore’s peaceful, lawful process to end ban on gay sex

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