Constitutional Challenge to Section 377A – Singapore Court of Appeal to Hear Arguments

Chief Justice and all four Justices of the Court of Appeal to hear arguments on the constitutionality of a law that criminalises consensual sexual conduct between adult men in private

1. Background of the case

In Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63, our client applied to review the constitutionality of section 377A of the Penal Code and sought a declaration that section 377A was inconsistent with Articles 9 (right to life and liberty) and/or 12 (right to equal protection of the law) of the Constitution. Our client’s application was heard together with two other challenges to section 377A, brought by Mr Bryan Choong (represented by Peter Low & Choo LLC and counsel from Audent Chambers) and Dr Roy Tan Seng Kee (represented by Carson Law Chambers). After hearings before the High Court in November 2019, in which we presented expert evidence on the nature of sexual orientation and argued that section 377A was absurd and arbitrary, all three applications were dismissed. All three plaintiffs appealed against the High Court’s decision that section 377A is constitutional.

2. Significant points on appeal

There are two main prongs to our argument that section 377A is unconstitutional.

The first is an argument from scientific fact. We say that it is absurd to criminalise one particular sexual orientation when the expert scientific evidence (which was not seriously challenged by the Prosecution’s experts) shows that (a) sexual orientation cannot be wilfully changed and (b) it is not caused or influenced by social factors.

The second is a technical legal argument. We say that the arbitrariness of section 377A is amplified by the fact that it targets male homosexual conduct specifically, when the available evidence (including the 2007 legislative debates) indicates that the intent of section 377A was to advance an alleged social morality against homosexual conduct generally. For the avoidance of doubt, we are not arguing that other forms of homosexual conduct should also be criminalised.

3. Concluding remarks

Relying on strong scientific evidence, we aim to prove that homosexuality is a natural variant of sexual orientation in human beings, and that it is caused by a complex mix of genetic, hormonal, and other non-social environmental factors. It can neither be voluntarily changed nor influenced by social pressure. If this is so, it would be absurd, irrational and discriminatory to criminalise a person on the basis of his natural, unchangeable identity and for non-harmful private acts.