CNA Explains: The history of 377A and how some countries have repealed it
As Singapore considers its next steps for Section 377A of the Penal Code which criminalises sex between men, CNA looks at the history of the legislation inherited from the British penal system and how some countries have repealed it.
SINGAPORE: A controversial law that criminalises sex between men in Singapore has been thrust into the spotlight again, amid an ongoing government review which seeks to find the best way forward on Section 377A while balancing different viewpoints.
Authorities here have long said that the law is not actively enforced, with Singapore’s highest court recently reaffirming that 377A is “unenforceable in its entirety” and poses no threat of prosecution.
However, activists and members of the lesbian, gay, bisexual and transgender (LGBT) community argue that the real impact of the law lies in how it perpetuates discrimination across different aspects of life, including at home and in the workplace.
According to UK non-profit Human Dignity Trust, there are 70 jurisdictions where LGBT people are criminalised, with the majority explicitly criminalising sex between men via ‘"sodomy", "buggery" and "unnatural offences" laws.
Almost half of them are Commonwealth jurisdictions.
Many of the laws originate from colonial times, with many places imposing penalties such as long prison sentences.
Here’s a look at the history of the law, how some countries have repealed it and what happened when they did:
When was 377A introduced and why?
Section 377A was introduced to Singapore’s Penal Code in the middle of 1938 when it was under British rule.
It reads: “Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to two years.”
The law was generally believed to have derived from the British government’s desire to "safeguard" public morality by prohibiting homosexual activity in the Straits Settlements.
However, a legal team that sought to repeal the law in Singapore in 2019 argued that documents from the British National Archives suggest that Section 377A was originally intended to curtail the spread of male prostitution, and not consensual private sexual acts between men.
The documents showed that male prostitution was a widespread problem in the area at the time, especially among British civil servants.
In its assessment of the evidence in that attempt to repeal the law, the courts said the legislative purpose of 377A was not to stamp out male prostitution but to "safeguard public morals generally".
Indeed, the origins of Section 377A stretch back to 1860, when it was first codified as Section 377 in the Indian Penal Code by the British empire as “carnal intercourse against the order of nature with any man, woman or animal".
It was then exported to at least 39 British colonies across Asia, the Pacific islands and Africa.
Penalties range from two to 20 years in prison but in places that have also implemented Sharia law, LGBT people can also face more severe punishment such as flogging.
Which countries have repealed the law, and which have not?
Former British colonies that have repealed the legislation include India, Seychelles and Fiji.
In 2018, India’s highest court unanimously struck down part of Section 377 of the Indian Penal Code, which outlaws same-sex relations, following 17 years of legal challenges mounted by activists.
In the landmark judgment, India’s Supreme Court ruled that it was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex".
“Criminalising carnal intercourse under Section 377 (of the) Indian Penal Code is irrational, indefensible and manifestly arbitrary,” said then-Chief Justice Dipak Misra in his delivery of the unanimous verdict on Sep 6, 2018.
Evolving social attitudes towards LGBT issues have also been attributed to the repealing of 377.
In 2011, India included a “third gender” category - in addition to the male and female options - in its census forms for the first time.
Bhutan decriminalised homosexuality last year, making it legal to have gay sex and easing restrictions on same-sex relationships.
The move by the majority-Buddhist nation of 800,000 people came after other Asian countries including India and Nepal relaxed restrictions on the rights of LGBT people.
According to researchers, much of Bhutan’s penal code was adopted from US laws. However, there are parts about sodomy and “unnatural sex”, which appear to be identical to language in other penal codes around South Asia that was copied from the Indian Penal Code.
Besides Singapore, former British colonies where 377 continues to exist in various forms include Malaysia, Brunei, Pakistan, Bangladesh, Sri Lanka and Myanmar.
Has repealing 377A resulted in equality for LGBT people?
While some places no longer outlaw gay sex, discrimination and even harassment of LGBT people has continued.
In Fiji, which was the first Pacific Island nation to decriminalise homosexuality in 2010, LGBT people face challenges.
The Fiji Human Rights and Anti-Discrimination Commission has reported complaints of discrimination against LGBT people in employment, housing, access to health care and other fields.
However, some places have extended rights beyond a simple repealing of legislation criminalising gay sex.
For example, New Zealand, which passed law reforms to decriminalise homosexuality in 1986, has since implemented a full range of laws supporting the gay community, with extensive protections against discrimination.
In 2018, the government passed a Bill allowing men who were previously convicted of homosexual offences, before decriminalisation, to have their criminal records wiped. Lawmakers also apologised to those previously affected by the convictions.
While there are still isolated cases of homophobia, social acceptance of LGBT people in New Zealand remains high, according to a report published in 2019 by the Organisation for Economic Co-operation and Development focusing on LGBT people.
Has repealing 377A opened the door to same-sex marriages for these countries?
The removal of anti-gay sex laws in some countries saw the issue of same-sex marriage falling under the spotlight.
In India, the repeal of Section 377 only decriminalised sex acts. The country still does not recognise same-sex marriage or civil unions.
Fiji Prime Minister Frank Bainimarama told the Fiji Sun newspaper in a 2016 interview that same-sex marriage will not happen in his lifetime. “Fiji does not need that rubbish,” he was quoted as saying.
Same-sex marriage is currently legal in 32 jurisdictions, most of which are located in Europe.
Ireland became the first country to legalise same-sex marriage through a referendum in 2015. The referendum saw 62 per cent of more than 3 million people voting in favour of same-sex marriage. Same-sex couples have the right to adopt children, and are also able to obtain parental recognition in assisted reproduction methods.
With the exception of Australia and New Zealand, most former British colonies across Asia, the Pacific islands and Africa do not recognise same-sex marriage.
Such unions have been legal in New Zealand since 2013, making it the first country in the Asia Pacific region to allow same-sex couples to marry.
Australia legalised same-sex marriage in 2017, after more than 60 per cent voted yes to marriage equality in a national postal survey.
Editor's note: This article has been amended to make it clear that while lawyers seeking to repeal 377A had argued it was originally intended to curtail the spread of male prostitution, the courts rejected that theory.