Constitution guarantees equality “regardless of . . sexual orientation”, says government

I can’t decide whether to call it chutzpah or cowardice, but what I do know is that it’s quite mistaken. The constitution does not contain any reference to sexual orientation, at least not explicitly. I would wish it to be the case, but it is not.

Yet this was what the Singapore government asserted when, in a written reply to the United Nations, it said,

31.1 The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity.

This sentence was contained in a lengthy reply (dated 12 May 2011) submitted for the preliminary process before the assessment of Singapore later this month under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Singapore acceded to in 1995. You can see it yourself at this link — go to Section 31, which is the government’s response to a question specific to sexual orientation and gender identity.

Equality and autonomy for women include the right for each to determine for herself her sexual expression; that is why the rights of lesbian and transgendered women are included in the review of women’s rights. As we all know, the situation for lesbians and transwomen fall far short of equality in Singapore, yet before the United Nations, when called upon to explain itself, the government blithely asserts that our constitution says what it does not say.

You could call it chutzpah. Or you could call it cowardice, preferring to say what it thinks the international community wants to hear rather than own up to its own failings.

That said, just because the constitution does not explicitly mention sexual orientation does not mean that equal protection does not extend to it. However, it will require an explicit case judgement or declaration from the highest court to nail down, by way of interpretation, that the clause does encompass sexual orientation and gender identity. Such has not yet taken place. If anything, the fact that all sorts of discriminatory laws and policies exist suggests that the government does not believe they are constrained by the constitution not to discriminate. This contradiction between the Singapore government’s words in an international forum and its domestic behaviour is rather shameless.

At paragraph 6.1 in the statement, the Singapore government states, with reference to Article 12 (Equal protection of our laws) of our constitution that

Any person who is of the view that his or her rights under the law have been infringed upon can bring an action in the local courts.

This is a very inadequate answer, given the reality. The reality is that we have all these laws and policies that discriminate. To merely say, well, you can challenge them if you wish, and yet expect this answer to be accepted as proof that there is no discrimination is nonsense. It’s as ridiculous as John beating up Sally, and then telling the world, “Well, Sally could have fought back if she wanted and I wouldn’t then be beating her,” and brandishing such a statement as proof that John didn’t beat Sally.

Just in Section 31 alone — the text of which is archived here  for easy reference — there are several other mentions in the government’s statement to CEDAW that raise eyebrows.

For example, it says “All persons . . . have equal access to basic resources such as education, housing and healthcare”. This is not true again. In education, lesbian and transgendered schoolgoers are denied sexuality education that is relevant to them. The ministry of education insists that sexuality education must in practice adopt a tone of disapproval and erasure of their identities, and must deny information that would help them be better informed about their sexual lives. As for public housing, access and subsidies are skewed to favour heterosexual persons through the eligibility test of marriage, which in Singapore is denied to same-sex couples. Unable to marry in any way meaningful to them, lesbians are thus denied equal access to and subsidies for public housing.

Further down Section 31 of the government’s reply, it mentions “Gay groups have held public discussions and published websites, and there are films and plays on gay themes and gay bars and clubs in Singapore” and that there are “mass media and Internet platforms” for gay and lesbian persons to raise issues with policy-makers and create awareness in the public domain. Sure there are, but when films, seminars, mass media and the internet are used to address gay concerns, tighter regulations apply. Free-to-air television for example is required by the government to excise almost all positive representation of gay characters and gay-affirmative messages. Films with gay themes are rated more harshly than those with heterosexual scenes.

That there is some allowance for speech and representation is not the point. The key word in the CEDAW convention is “discrimination”, and the onus of the government going before the CEDAW review is to demonstrate that there is no discrimination. By glossing over the unequal treatment enshrined in licensing and censorship policies, the government is clearly trying to hide its failure to live up to its CEDAW obligations.

One sentence is almost surreal:

Besides the adoption of fair employment practices promoted by TAFEP, Singapore’s employment legislation provides recourse for employees who feel they have been unfairly dismissed, including on the grounds of their sexual orientation and gender identity and they have recourse to appeal to the Minister for Manpower for reinstatement to their former employment.

“TAFEP” stands for Tripartite Alliance for Fair Employment Practices (http://www.fairemployment.sg/). Despite what the government seems to claim in its statement to CEDAW, TAFEP’s Five Principles for Fair Employment do not mention sexual orientation as an illegitimate basis for discrimination.  However, the Five Principles do mention “gender” and arguably “gender” includes sexual orientation, as many recent interpretations of laws, conventions, policies, etc, in the West have made clear. However, in the context of Singapore, where our laws and policies explicitly discriminate on the grounds of sexual orientation, we cannot make the same assumption that the word “gender” in TAFEP includes sexual orientation. Therefore, for the government to conveniently claim that TAFEP addresses the concerns as laid out in Question 31 appears to be another attempt to gloss things over.

As far as appealing to the Minister for Manpower is concerned, I’m not sure where that comes from. I looked closely at the Employment Act while preparing to write this piece, and I just cannot find any provision for the minister to intervene when it comes to discriminatory firing. If anyone knows more about this, please drop me a note.

* * * * *

Sayoni, a civil society group, will be challenging the government’s protestations at the CEDAW session in New York City later this month. The group will be represented by Kelly Then (pic left) and Jean Chong (pic right). [Update 18 July 2011: there’s a third member of Sayoni in New York — Vanessa Ho]. Here’s the short press release Sayoni has put out:

Singaporean lesbian, bisexual and transgender women’s concerns debut at UN review

On 22 July 2011, the Committee on the Elimination of Discrimination against Women will review Singapore’s progress with eliminating discrimination against women during the 49th CEDAW session at the United Nations headquarters in New York City.

The State of Singapore and Non-Governmental Organisations have submitted reports and during the session, will engage in dialogue with the Committee. The Committee will then make its Concluding Observations, which identifies areas of concern and makes recommendations for progress.

For the first time, the concerns of lesbian, bisexual and transgender (LBT) women are represented by Sayoni during this process. Sayoni will highlight prevalent and systematic discrimination against women based on sexual orientation and gender identity across social, cultural, political and economic spheres of Singapore.

Sayoni has prepared a 14-page report. While I have seen a copy of it, I’m not sure if it is yet public. But consistent with what I have discussed above, the report details discrimination on many fronts, including censorship and stereotyping, education, housing, healthcare, tax policies, social services, and employment.

The report makes specific recommendations to correct certain laws and policies.

The CEDAW process requires the government to respond to these non-governmental reports — Sayoni’s is not the only one, there’s a report from AWARE too — in a manner that is consistent with Singapore’s obligations under CEDAW. Whether that response will be characterised by more sweeping assertions or glossing over of reality, we shall have to wait and see.

42 Responses to “Constitution guarantees equality “regardless of . . sexual orientation”, says government”


  1. 1 K Das 17 July 2011 at 15:17

    Double speak, whether from an individual, group or government, is something we should despise and challenge, if we have to. By your sharp and incisive analysis of social issues and the discriminatory biases embedded therein you inspire awareness and higher level of thought to otherwise normal intelligent people in boxed-mentality fix.

    Bravo – keep it up!

  2. 2 Roy Tan 17 July 2011 at 15:30

    Ha, ha, we’ve got them by the balls!
    They’ve committed themselves in black-and-white to the UN that LGBT Singaporeans aren’t being discriminated against, so now they’ve got to make good that promise.
    All these official government statements will strengthen M. Ravi’s challenge against the constitutionality of Section 377A coming up this September.
    The courts are going to look very foolish if they rule that 377A IS in line with the constitution even though it blatantly discriminates against gay men (since lesbian and straight oral and anal sex have already been made legal here).

  3. 3 Desmond 17 July 2011 at 16:47

    The worse that will happen is they totally deny all the allegations. The “best” would be they say that understand and hear the problems and will try to solve them but change nothing.

    All in all, nothing would really change. It is the PAP after all, even with their SAYING “we will listen and change” before and after the GE. Has anything really changed?

    Our believed ministers from the Army are living proof that they (the PAP) only listen to what they like and what to hear and everything else that we say to them that is not status quo is just bullshit.

    The question is, what more can we do now? Even with pressure from the UN, our gahmen is still acting like they are gods and know best and everyone else are just mere mortals.

  4. 4 warmhatch 17 July 2011 at 16:51

    Alex, chutzpah is a word that, as I understand from my friends for whom this word is native to their language, is typically meant to be used in the affirmative sense, implying guts and a will to stand up to being oppressed/bullied/wronged. In the case of Singapore’s CEDAW reply, I dare say it would be not only NOT be a case of chutzpah, but instead one of cowardice and outright disingenuousness.

  5. 5 Thor 17 July 2011 at 18:04

    Surely there are other violations of human rights in Singapre? The very fact that you cannot even gather and must move on; isn’t that a violation of basic right to protest? I thought that seems to be micromanaging even this simple resort of protesting. I am not detracting from the issue of gay rights; just that the government seems to have got a free pass for the rest, when sayoni and aware seems to represent some input from civil society in Singapore.

  6. 6 yawningbread 17 July 2011 at 22:32

    I have just sent an email query to TAFEP, saying

    QUOTE
    In a submission to the UN (Cedaw process), the government said that TAFEP is one of the ways by which Singapore is combating discrimination against gay/lesbian and transgendered persons. It said, “Besides the adoption of fair employment practices promoted by TAFEP, Singapore’s employment legislation provides recourse for employees who feel they have been unfairly dismissed, including on the grounds of their sexual orientation and gender identity. . .”

    Yet, your five guidelines or principles do not mention sexual orientation. Why was it left out? Or is it included within the meaning of “gender”, but even so, why didn’t you explicitly spell it out?
    ENDQUOTE

  7. 7 Robox 17 July 2011 at 23:17

    From the government statement, a duplictious one, it would seem that constitutional guarantee to “equality”, regardless of sexual orientation extends only to “equality of treatment”, sometimes referred to as “formal equality”. Not that any of us even believe that to exist.

    However, any claim to constitutional guarantees of equality must necessarily refer to “legal equality” which flies in the face not only of S 377a but this that I have previously posted here:

    http://www.fridae.asia/newsfeatures/2011/02/01/10611.the-lawyer-is-in-equal-in-love

    [Quote]

    “Standing in the way of love is section 12(1), Women’s Charter. This section invalidates same sex marriage regardless of where they are solemnised.”

    [Endquote]

    The PAP government is merely playing to the foreign gallery.

  8. 8 Trebuchet 18 July 2011 at 00:00

    The Constitution does enshrine the equality of all persons before the law. That is, if person X and person Y both commit the same offence to the same degree against the same law, they should be punished equally. It doesn’t say laws should treat all people identically regardless of their different situations.

    However, I do agree that such claims should be more transparent, with direct quotes from the relevant legislation so that people can see the original words and decide if some kind of manipulation is being carried out.

    • 9 Robox 18 July 2011 at 00:18

      @Trebuchet:

      “[The Constitution] doesn’t say laws should treat all people identically regardless of their different situations.”

      Yes, it does. Except I wouldn’t uses the word “identically” but “equally”. Equality of treatment is a logical extension of equality under the law.

      The one phrase that keeps getting neglected in discussions such as this one is “prohibited grounds for discrimination”; clearly, the government is now conceding, at least in principle, that sexual orientation is one such grounds.

      • 10 Anonymous 20 July 2011 at 09:52

        @Robox

        Trebuchet is actually correct on the interpretation of Article 12. Equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike. Cases that have interpreted Article 12 have been quite consistent in this aspect (See Court of Appeal in PP v Taw Cheng Kong, [1998] 2 SLR 410).

  9. 11 Robox 18 July 2011 at 05:46

    While we are talking about discrimination against women, can I take this opportunity to cheer Japan on its World Cup win? Specific to us in Singapore, I believe that this is the first World Cup win by any Asian country in any sport, whether involving men or women.

    Hooray, to the Japanese women’s soccer team! I love you to bits.

  10. 12 Robox 18 July 2011 at 06:43

    Oops, just remembered. Both India and Sri Lanka have won the men’s cricket World Cup.

  11. 13 Thor 18 July 2011 at 10:07

    How about the different legal treatment for Tin Pei Ling vis a vis James Gomez? Or GCT caught in voting area and law not applied? Are some people more equal than others?

  12. 14 questioner 18 July 2011 at 10:41

    What if the response from the authorities is:

    1. Discrimination is not against a person due to his sexual orientation (as stated by the govt’s reply to the UN). Even many evangelical churches, at least in their theory, has no problem accepting a gay into ordained or lay leadership. They have objections only to persons indulging in gay sex. If a gay is celebate, they would have little problem with it. So the discrimination is not base on the orientation per se but base on actual sexual practices)

    2. Discrimination is only against people who engages in certain types of sexual practices.

    3. The govt’s reply to the UN did not say anything whether or not there is discrimination base on sexual practices.

    4. The law (e.g. public indecency, S377A, bestiality, sex with corpses) is never against sexual orientation. It is only against certain sexual practices.

    Should the NGO’s report make it clearer so that it deals with not only unjustified discrimination against sexual orientation, but also unjustified discrimination against certain sexual practices?

    • 15 jem 18 July 2011 at 16:02

      You are playing devil’s advocate, but surely you can see how weak that line of argument is. It is discriminatory because straight people aren’t required to be celebate to be accepted.

      Put it this way, suppose the state claims it does not discriminate religion X, but ‘merely’ discriminates against its religious practices. So practitioners cannot preach, congregate, or observe any religious practices that are unique to X. But all other religions can do any of these. Would you agree that X is not discriminated against?

      You can also read up on Perry v. Schwarzenegger; the same argument was made, if I remember correctly. That the law was not discriminatory because gay men were allowed to marry women. It didn’t work.

      • 16 questioner 19 July 2011 at 10:46

        Hi Jem,

        The govt can reply this way:

        There is no intrinsic link between sex between persons of the same gender and the orientation itself. There are people who are straight that engages in sex between persons of the same gender just as there are people who are homosexual in orientation who does not engage in sex between persons of the same gender. So strictly speaking or technically, the discrimination in our Singapore law is against sexual activities between persons of the same gender and not against orientation.

        So perhaps it is better to make it more clear that advocacy-work (e.g. in dealing with the UN) should make it clear that the advocacy is not just for “sexual orientation” but also the homosexual sex acts (regardless it is done by heterosexual persons or homosexual persons or bisexual persons or other types of persons) that should be given the treatment of equality.

      • 17 jem 20 July 2011 at 18:50

        See ET’s reply at 18 July 2011 at 20:22. I think it explains it well.

    • 18 ET 18 July 2011 at 20:22

      Criminalising acts that relate to a particular minority, such as gay sex, is accepted by courts throughout common law jurisdictions (India, HK, USA, etc., etc.) as TARGETING that minority and is very clearly unlawful discrimination. See, in particular the explanation in the judgement by the Delhi Court regarding their s.377.

    • 19 Ian 18 July 2011 at 21:01

      CEDAW is not assessing for equality for men, only women. lesbians aren’t affected under 377A.

    • 20 Paul 18 July 2011 at 22:19

      Except that the preference for ‘homosexual practice’ is the very definition of ‘homosexual orientation’. To claim that discrimination against a sexual orientation doesn’t exist because it’s the sexual act that is criminalized rather than the sexual orientation is simply specious. It would be like enacting a law criminalizing the use of one’s left hand to write, then saying that left-handers are not being discriminated against; that only the act of left-handed writing is proscribed. Left-handers would be discriminated against – treated differently and unfairly compared to right-handers – because they would not be able to function in the manner for which their natural endowment is optimized.

      • 21 ET 19 July 2011 at 01:45

        The definition of homosexual orientation is: a physical and emotional attraction only to members of the same gender. But the rest of your post is correct in that a law that targets that group, as with making it illegal for anyone to write with their left hand targets left-handed people, is and has been held by the courts across the world to be discriminatory and unconstitutional.

      • 22 questioner 19 July 2011 at 10:51

        Hi Paul,

        My above reply to Jem seems applicable to what you raised too. The govt can say that srictly speaking, there is no intrinsic link between one’s sexual orientation and one’s actual sexual acts, as there are situations where heterosexuals do gay-sex and situations where gay persons do straight-sex. See my reply to Jem. 🙂

      • 23 ET 20 July 2011 at 17:23

        Questioner, that argument does not fly. Again, say it’s illegal to write with your left hand. Then say a right-handed person injures his right hand and so uses his left hand for a while, though this is unnatural for him. The fact that he is caught in the legilsation does not in any way detract from the fact that the law is discrimination against naturally left-handed people.

        Then again, some people are ambidextrous. It is also discriminatory against them to deny them the right to express half of their being.

    • 24 Tom 18 July 2011 at 22:59

      4. The law (e.g. public indecency, S377A, bestiality, sex with corpses) is never against sexual orientation. It is only against certain sexual practices.

      How can it not be against sexual orientation when S377A involves sexual practices between two beings of the same orientation?

      • 25 ET 19 July 2011 at 01:46

        Making love is not a “practice”.

      • 26 questioner 19 July 2011 at 10:27

        HI Tom,

        The authority’s reply can be:

        Because
        1. sex between 2 persons of the same gender can be done between by straight persons in various situations (e.g. in prison, during war, during experimentation, when drunk, out of curiosity)
        2. some persons of homosexual orientation do not have sex with persons of the same gender

        S377A is thus criminalizing the sexual act between persons of the same gender and is not criminalizing a person’s sexual orientation itself.

        There is no inherent or necessary link between that sexual act and the orientation of the persons doing that sexual act.

      • 27 ET 20 July 2011 at 17:29

        “There is no inherent or necessary link between that sexual act and the orientation of the persons doing that sexual act.”

        This has already been shown to be incorrect in multiple posts above. I suggest you read and absorb.

      • 28 Ian 20 July 2011 at 18:45

        The link is this, http://en.wikipedia.org/wiki/Triangular_theory_of_love
        Criminalizing MSM is as if the government wants to prevent gay men from having the freedom to love or having a relationship that is equal to that of a heterosexual couple.

        replying to the points,
        1. This meant that most heterosexuals do not engage in these acts.
        2. This meant that most gay men do engage in these acts.

        Which brings to the fact that this law affects a certain group much more than other groups(if any) and thus is discriminating. Let’s not get to how ridiculous it is to try and enforce the law and why is this unenforced law not brought down.

        To revise the left hander’s analogue:
        It would be like enacting a law criminalizing the use of one’s left hand to write, then saying that left-handers are not being discriminated against…

        …on the basis that right handers are also affected since it is illegal for them to write with their left hand or that some left handers also learnt to use their right hand in order to obey the law does not make the law undiscriminating.

      • 29 questioner 21 July 2011 at 10:41

        Hi ET,

        Regarding my statement that there is no INTRINSIC/necessary link between sexual orientation and sexual act, you wrote that “This has already been shown to be incorrect in multiple posts above. I suggest you read and absorb.”

        If there is an instrinsic/necessary link, then it means that a gay person will not be able to do any straight-sex, while a straight person will not be able to do any gay-sex. But since empirically we know that there are straight persons who habitually engages in gay sex (e.g. male prostitutes serving gay clients and straight males in prison and other situations) and there are gay persons who engage in straght-sex, that means there is no intrinsic/necessary link between sexual orientation and the actual sexual act. Hence a law against sexual act is really different from a law against sexual orientation. So advocacy work may need to be clearer regarding this issue. We need to fight against not just discrimination against sexual orientation but also the discrimination against certain sexual acts.

      • 30 Iann 21 July 2011 at 21:46

        @questioner:
        Congratulations, you have just explained sexual behavior, which can be affected due to external factors. You have yet to disprove there is no inherent link between sexual orientation and who you would generally have sex with under equal circumstances.

        Using the left hander discriminating laws, you can say that any right hander who writes with their left hand will be criminalised too or that left handers who use their right hand will not be criminalised, therefore is not discrimination.

        Or

        Black-skinned people should be criminalised because they are black skinned, however if they bleach their skin(michael jackson anyone?), they won’t be criminals. White people who tan their skins to become blacks will also be criminalised, therefore there is no discrimination of skin color as all people are affected. in short, if blacks stay black, they will be jailed. If white tans to become black, they will be jailed too.

        2 problems with these arguments.
        1. its bullsh*t.
        2. why would a particular group of people need to do more/ be more restrained when compared to other groups under the same circumstances? that itself is discrimination.

      • 31 Iann 21 July 2011 at 21:51

        Oh and they have NO reasons to ban MSM, yeah… 0 reasons, excluding those that belongs to “coz i don’t like” category.

  13. 32 Corinna 18 July 2011 at 11:09

    Alex, the section re appeal to Minister for unlawful termination/dismissal is Section 14 of the Employment Act, under Misconduct of Employee.

  14. 33 Corinna 18 July 2011 at 11:14

    It should be noted that Section 14 is only applicable when:
    a) the employee is below executive / managerial status;

    b) the termination was not exercised pursuant to a contractual term i.e. employee was not given the contractual notice of termination or payment in lieu of notice.

  15. 35 wikigamikigam 18 July 2011 at 13:01

    SHAMELESS GOVERTMENT
    What they said aren’t what they do!

  16. 36 Corinna 18 July 2011 at 18:06

    Section 14 is definitely very limited. It only cover cases of dismissal. There are many ways that a person can be discriminated aside from dismissal.

    It is also arguable whether Section 14 covers a case where a person resigns because the conditions in the workplace are intolerable (constructive dismissal).

  17. 37 Bootlace 19 July 2011 at 10:30

    They can say what they want to say on the world stage just to be seen to be aligned but look at what they do when the rubber meets the road.

  18. 38 questioner 21 July 2011 at 10:52

    Apparently, advocacy work to fight against unjust discrimination towards gay-sex would automatically cover the issue of unjust discrimination towards gay sexual orientation, but advocacy work to fight against unjust discrimination towards gay sexual orientation may still leave open the issue of unjust discrimination against gay-sexual acts.

    Advocacy work against unjust discrimination towards homosexual orientation means it does not cover the freedom for straight people to engage in homosexual sexual act.

    Straight guys who engages in gay-sex should also not be unjustly discriminated against.

    There should be freedom for all adults (i.e. not just for gays but also for straight persons) to engage in homosexual sex.
    (e.g. a straight person may want to be “gay for pay”)

    I see no good secular reason for the law to target against sex between persons of the same gender, regardless whether or not that homosexual sex is done by straight or gay persons.

  19. 39 questioner 21 July 2011 at 11:27

    Just to clarify my previous comment about advocacy work for sexual acts automatically automatically covers the discrimination against GLBTQ sexual orientations.

    I do not mean that we should advocate only for the sexual acts instead of sexual orientation. Advocacy needs to be done for both. The real issue that the “conservatives” are attacking really boils down to the sexual activity itself; nevertheless there are other non-sexual issues which only advocacy-work for sexual orientation can cover, such as the legal recognition of formal union (or marriage) of persons-in-union/marriage who are of the same gender, adoption of children by persons-in-union/marriage who are of the same gender,

    In short, advocacy work should be done for both sexual orientation and sexual activity.

    • 40 a different tack 28 July 2011 at 00:42

      From what little that I’ve read of gender theory, it seems that experts still cannot work out what actually constitutes “gender” and what “rights” should ascribe to gender, let alone particular types of gender, like male/female, or homosexual/heterosexual.

      But then again, we can still take a different tack on this problem. Rather than only questioning whether the law is logically consistent with the government’s statements, can we also consider whether it is useful? What purpose does it serve? What was the rationale behind its being passed? Who has an interest in keeping it/revoking it? Maybe this way we can work out a way to actually get it changed (particularly if it turns out to be harmful to the interests of the people who hold power, be they leaders in politics, religion, economics, culture etc), because even if we establish its internal logical inconsistency, it can still remain on the books.

  20. 41 chasbelov 5 December 2011 at 12:34

    @warmhatch: I’ve grown up with the word “chutzpah” and in our extended family it was only used in the negative sense.

  21. 42 Temas Wordpress 22 December 2011 at 08:37

    You can certainly see your enthusiasm within the work you write. The world hopes for even more passionate writers like you who are not afraid to say how they believe. All the time follow your heart.


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