I am writing in response to Yvonne C.L. Lee's article, 'Decriminalising homosexual acts would be an error' (ST, 4 May). In it, she suggests that section 377A of the Penal Code (criminalising homosexual acts) may not be a violation of the Singapore Constitution's equality clause, because when certain rights clash with other rights and community values, Parliament may pass laws prioritising the public good over the rights of the individual. However, she does not evince the content of the other 'rights and community values' that the repeal of s 377A would clash with.

At the heart of the debate is how the putative right to engage in consensual homosexual sex should be balanced against the right of heterosexual persons not to view or engage in such acts. If the basis for criminality is hurt caused, then consensual homosexual sex in private should be decriminalised since it harms nobody. Even if some homosexual men do engage in public sex or force heterosexual men to engage in the same, this should not constitute an argument for continued criminalisation, but can and should be dealt with through either the Miscellaneous Offences (Public Order and Nuisance) Act, or a legislative extension of the existing law on rape in the Penal Code.

Lee notes that discrimination can be constitutionally valid if there is a rational basis for the distinction and the law in question serves a legitimate public good. On that basis, she states that 'sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted diseases', and that 'the law should not facilitate acts which threaten public health', thereby suggesting that continued criminalisation of sodomy by same-sex partners serves a legitimate public good . However, this discrimination cannot survive strict scrutiny, since she doesn't seem to object to the proposed repeal of s 377 itself, which would legalise sodomy for opposite-sex partners. The distinction thus lacks a rational basis and is constitutionally invalid. She also calls for continued criminalisation of homosexual sex based on the 'public good', which is too amorphous a basis to justify continued criminalisation.

Lee also extrapolates unreferenced developments in other jurisdictions to the Singapore context, asserting that 'the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality'. She asserts, inter alia, that homosexual men would push for a lowered age of consent once homosexual acts are decriminalised, in effect implying that homosexual men would prey on young boys between 13 to 18 years of age. This is an emotive argument designed to strike fear in and garner the support of heterosexual parents of young teenage boys. She also fails to point out that the reason gay activists push for homosexual age of consent at those ages is to equalise the age of consent with that of heterosexual sex in those jurisdictions.

Lee states that 'the assertion that one is born gay is scientifically unproven', but provides no evidence for her own suggestion that homosexuality is an 'alternative lifestyle' or a 'lifestyle choice'. In any case, the basis for civil rights is respect for personal autonomy, not genetic factors. She also provides no evidence for her assertion that homosexual lobbyists will seek for an 'alternative lifestyle' to be mainstreamed into society beyond the privacy of the bedroom. Worse, in extending the meaning of 'sexual orientation' well beyond common usage to include 'paedophilia and bestiality', she is attempting to project the revulsion people normally reserve for paedophilia and bestiality onto homosexual men engaged in consensual sex.

Lee claims that the active homosexual agenda has created an intolerance against the right to religion and free speech, which would breed social divisiveness in Singapore's multiracial and multireligious society. However, while Article 15 of the Singapore Constitution does include the right to propagate one's religion, the right to propagation arguably does not give a certain religious group the right to ask Parliament to legislate its own values on a multireligious population. Social divisiveness arises not from an 'active homosexual agenda', but when religious groups attempt to jockey for a primary space in public policy-making to legislate their own values.

Lee states that adultery was decriminalised because adulterers 'do not seek societal approval (of their actions)', whereas the law should continue to criminalise homosexuality since homosexual activists 'campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle'. This is a loophole-ridden statement based on the fallacious notion that a campaign for societal approval should be the basis for criminality. The comparison with adultery first arose because adultery (involving consensual heterosexual sex between one or more parties married to other people) was decriminalised in the recognition that the law could not punish all immoral behaviour. A fortiori, since homosexual sex is a consensual decision between two unmarried parties, why should the law continue to criminalise homosexuality? Lee concedes that 'homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public'. Yet, she conveniently ignores the fact that s 337A applies to homosexual sex in private too. While the government has stated that it would not prosecute, such assurances are but unenforceable promises that have little weight.