In most of the developed world today, the fight for gay rights is now over the right to marry. But, in Singapore, it’s still a bit more basic.

Section 377A of Singapore’s penal code criminalizes sexual contact between men. Though the government announced in 2007 that it would not actively enforce the law, the fact that homosexuality remains illegal in Singapore leaves gays open to discrimination. The law, which dates back over 70 years to the days of British colonial rule, is also increasingly out of step with Singapore’s Asian neighbors and the city-state’s own cosmopolitan self-image.

The courts may soon weigh in. In September 2010 Tan Eng Hong was charged under 377A for having sex with a man in a public restroom. Though he was later charged under a different law, Singapore Court of Appeal Justice V. K. Rajah ruled last August that Tan could proceed with a claim challenging the section’s constitutionality. In his judgment, Rajah noted that the section only applies to men, not women, and is therefore inconsistent with Article 12 of the Constitution, which states that all persons are equal before the law and entitled to equal protection of the law. He also wrote that 377A affects the lives of "a not insignificant portion" of the community and so the constitutionality of this law was of public interest.

"The fact that sexual orientation [as] an issue of discrimination is being recognized by courts is a huge step for us," says Madasamy Ravi, Tan’s lawyer.

Last year, gay partners Kenneth Chee and Gary Lim brought a separate challenge to the constitutionality of 377A. Singapore High Court Justice Quentin Loh, who also is the trial judge for Tan’s case, held a hearing in Chee and Lim’s case in February. At the closed-door hearing, lawyers Peter Low and Indulekshmi Rajeswari called Singapore’s law on homosexuality "absurd, arbitrary and unreasonable." In response, lawyers from Singapore’s Attorney General’s Office argued that 377A served important public morality and public health goals.

Loh reserved judgment on both cases. He is expected to deliver his judgment on both cases simultaneously but a date has not been announced.

Gay rights supporters are concerned the government has indicated a preference for the status quo in which 377 remains the law but is not actively enforced. Earlier this year, Prime Minister Lee Hsien Loong addressed the subject at a public policy conference.

"Why is that law on the books?" he said. "Because it’s always been there and I think we just leave it. These are not issues we can settle one way or the other, and it’s really best for us just to leave them be, and just agree to disagree. I think that’s the way Singapore will be for a long time."

But Lynette Chua, a law professor at National University of Singapore who has studied the gay rights movement, says a stated policy of nonenforcement doesn’t offer enough protection to those targeted by the law. "But what does nonenforcement mean if courts are openly saying that they are using 377A in prosecutions?" says Chua, noting that Tan was initially charged under the law.
 
She is also dismissive of the government’s public health arguments. "When the rules were first enacted in 1938, the issue of public health was clearly not an explicit consideration since there was no HIV at that time," she notes.

Lee has called Singapore "basically a conservative society," and a recent survey by Singapore’s National Technical University found that over 50 percent of Singaporeans still find homosexuality unacceptable. Last year, one Singapore politician successfully won his parliamentary seat in a campaign in which he attacked his opponent for being homosexual and advancing a "gay agenda."

Much of the vocal opposition to expanding gay rights has been from Singapore’s Christian community, which accounts for about 18 percent of the population. Senior pastor Lawrence Khong of the Faith Community Baptist Church assailed the drive to decriminalize homosexuality in a speech during a January visit to his church by former prime minister Goh Chok Tong. Khong claimed the "repeal of similar laws [has] led to negative social changes, especially the breakdown of the family as a basic building block and foundation of the society."
 
But Chua says attitudes in Singapore, like elsewhere in the world, are changing. "People fail to realize how much that percentage [that finds homosexuality unacceptable] has shrunk since several years back," she says. Last year, Singapore gay activist group Pink Dot organized an event in Singapore’s Hong Lim Park that attracted some 15,000 people.

The rest of Asia has certainly moved further away from Singapore on the issue. Malaysia is the only other major economy in the region where homosexuality remains illegal, and some Asian countries are joining the U.S. and Western Europe in debating whether or not to permit gay marriage. Taiwan proposed legalizing same-sex marriage almost a decade ago, though the bill has not yet been put to a vote. Vietnam’s communist government announced last year that it is considering whether to allow same-sex couples to marry.
 
Madasamy says Singapore’s stance on homosexuality is increasingly at odds with how it wants to portray itself to the world. He points to the recent embarrassment the government faced when students, faculty, and alumni at Yale University heaped scorn on a proposed joint venture between the Ivy League school and NUS in part because of 377A.
 
Singapore’s position is also at odds with those of many international employers, including law firms, which have embraced the island nation as a regional financial and commercial hub. Sean Twomey, a Singapore-based spokesman for Norton Rose, says that office, like other international offices, participates in the firm network on gay and transgender issues.
 
"We actively foster a culture of inclusion and respect for the individual," says Twomey. "We have established a growing number of internal networks to promote the sharing of information and experience so that we can better understand each other and our clients—and work more effectively as a firm."
 
Madasamy says some opponents of decriminalizing homosexuality in Singapore worry that repealing 377A will naturally lead to gay marriage becoming legal. But he says Singapore can take it one step at a time.
 
"I guess once you recognize equality, then people will start looking at marriages," he says. "But in the U.S., the freest country in the world, same sex couples still cannot get lawfully married just anywhere, so who is to say Singapore cannot stop at that?"
 
E mail: jseah@alm.com.