Activist countries

CNA Explains: The History of 377A and How Some Countries Repealed It

When was the 377A introduced and why?

Section 377A was introduced into the Penal Code of Singapore in mid-1938 when it was under British rule.

It reads: “Any man who, in public or private, commits or encourages the commission of, or procures or attempts to procure the commission by a male person of an act of gross indecency with another person of male, shall be punished with a term of imprisonment of up to two years.”

It was widely believed that the law stemmed from the British government’s desire to “safeguard” public morals by prohibiting homosexual activity in Straits settlements.

However, a legal team that sought to repeal the law in Singapore in 2019 argued that documents from the UK National Archives suggest that Section 377A was originally intended to curb the spread of male prostitution, not acts consensual private sex between men.

The documents showed that male prostitution was a widespread problem in the region at the time, especially among British civil servants.

In its assessment of the evidence in this attempt to repeal the law, the courts stated that the legislative purpose of 377A was not to eradicate male prostitution but to “safeguard public morals generally”.

Indeed, the origins of Section 377A date 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 the nature with a man, a woman or an 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, LGBT people can also face harsher penalties such as flogging.

Which countries have repealed the law and which have not?

Former British colonies that repealed the legislation include India, Seychelles and Fiji.

In 2018, India’s highest court unanimously struck down part of Section 377 of India’s Penal Code, which prohibits same-sex relations, after 17 years of legal challenges by activists.

In the landmark judgment, India’s Supreme Court ruled it unconstitutional “insofar as it criminalizes consensual sexual relations between adults of the same sex”.

“The criminalization of carnal intercourse under Section 377 (of the) Indian Penal Code is irrational, indefensible and patently arbitrary,” said then Chief Justice Dipak Misra in delivering the unanimous verdict on September 6, 2018 .

Changing social attitudes towards LGBT issues have also been attributed to the repeal of 377.

In 2011, India included a “third sex” category for the first time – in addition to male and female options – in its census forms.

Bhutan decriminalized homosexuality last year, legalizing same-sex relationships and easing restrictions on same-sex relationships.

The move by the Buddhist-majority nation of 800,000 people came after other Asian countries, including India and Nepal, eased restrictions on LGBT rights.

According to researchers, much of Bhutan’s penal code was adopted from US laws. However, there are sections on sodomy and “unnatural sexual intercourse”, which appear to be identical to the language of other South Asian penal codes which have been copied from the Indian Penal Code.

Besides Singapore, former British colonies where 377 continue to exist in various forms include Malaysia, Brunei, Pakistan, Bangladesh, Sri Lanka, and Myanmar.