The Singapore Court of Appeal, the country’s top court, declined Monday to overturn a law criminalizing gay sex, ruling that three men who brought challenges did not have legal standing because the government has pledged not to enforce the colonial-era law.
Gay rights advocates had sought to overturn the law, known as Section 377A, arguing that it stigmatizes gay men and promotes discrimination. The law, enacted in 1938 during British rule, does not apply to women.
Pink Dot SG, a leading L.G.B.T.Q. advocacy group that organizes Singapore’s annual pride event, said it was “profoundly disappointed” by the decision.
“The acknowledgment that Section 377A is unenforceable only in the prosecutorial sense is cold comfort,” the group said in a statement. “Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life: at home, in schools, in the workplace, in our media, and even access to vital services like health care.”
A similar law imposed by British colonial rulers in India — and known there as 377 — was struck down by the Indian Supreme Court in 2018, inspiring activists to challenge the law in Singapore and other former British colonies.
Singapore’s prime minister, Lee Hsien Loong, has long said that his small, Southeast Asian island nation is conservative and not ready for the changes that repealing the law would bring.
In 2007, the Parliament voted to repeal Singapore’s original Section 377, which prohibited oral and anal sex between consenting adults, but left Section 377A on the books. At the same time, the government said it would not “proactively” enforce the section, which allows for up to two years in prison for a man who engages in “any act of gross indecency” with another man.
In its 152-page decision Monday, the Supreme Court ruled that it was Parliament’s responsibility to decide whether the law should be repealed.
“It is Parliament, and not the courts, that is best placed to devise a pluralistic vision that accommodates divergent interests,” the court said. “The court is not a front-runner for social change or an architect of social policy.”
Since the law is not being enforced, the court concluded, the three plaintiffs — Dr. Tan Seng Kee, a retired doctor; Ong Ming Johnson, a disc jockey and marketing executive, and Choong Chee Hong, a former executive director of an L.G.B.T.Q. counseling center — could not suffer harm, and therefore were not entitled to bring the case.
“They do not face any real and credible threat of prosecution under [Section] 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision,” the court ruled.
Gay rights activists called the ruling “a devastating blow” and said the Supreme Court had ignored the harm caused by the law
“Today’s ruling is frustrating for those who were hoping for some real change,” said Clement Tan, a spokesman for Pink Dot SG. “Despite acknowledging that gay men should be able to live freely in Singapore, without harassment or interference, the court still hesitated to strike it down. It now falls on Parliament to deal the final blow to Section 377A.”
A statement signed by 19 activist groups noted that the court ruled that the entirety of Section 377A would be unenforceable in matters of prosecution. But they said the ruling fell far short because gay men could still face police investigations under the law and will suffer from discrimination.
Mr. Ong said he was disappointed by the ruling and that the L.G.B.T.Q. community would continue working to change the law. “This antiquated law undermines the principle of equality in our modern and diverse society,” he said.
He also noted that the government’s pledge not to enforce it could change at any time.
“We may be safe from prosecution today,” he said, “but we may not be safe 10 years, or two years from now, or even next month.”
