Challenging antisodomy laws in Singapore and the former British colonies of ASEAN

Abstract

In 2007, Section 377 of Singapore’s Penal Code, a colonial-era law that criminalized sexual activities “against the order of nature,” was removed by Parliament. Section 377A, however, the law specifically criminalizing gay male sex, was kept on the books. Three years later, the first judicial challenge emerged, and after a change in standing requirements, a second challenge followed, both to be ultimately dismissed in 2013. By end of 2018, two new judicial challenges emerged, and by September 2019, another lawsuit was mounted—all three to be heard in November 2019. Despite having survived several constitutional challenges, could Singapore’s lawsuits to strike down Section 377A provide guidance or inspiration to similar attempts to repeal 377 or 377A in ASEAN? This article begins by examining the roots behind 377 and 377A and the attempts to repeal these laws in Singapore. Next, it explores the legal situation in the Southeast Asian nations with similar laws due to their common British colonial histories (Malaysia, Brunei, Myanmar) and discusses the position ASEAN has taken on anti-LGBT (lesbian, gay, bisexual, and transgender) laws in these nations. The article concludes with a discussion on how Singapore’s experience, as well as ASEAN human rights mechanisms, can potentially be used to expand and protect the rights of LGBT people in Southeast Asia.