Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore

Abstract

This article examines collective legal mobilization through the courts, or collective litigation, in a non‐liberal regime. It analyses the emergence and development of collective litigation to challenge the constitutionality of section 377A of the Penal Code, the law that criminalizes same‐sex sexual conduct in Singapore. The analysis focuses on the relational dynamics of collective litigation and legal subjectivities of the social actors involved, highlighting how social positions and strategic interests shaped their interactions and decisions on litigation. While gay rights activists emphasized their movement's collective interests when choosing the appropriate case and lawyers, a movement outsider pursued individual interests on behalf of a client. Due to their divergent social positions and strategic interests, the two teams competed with each other as they initiated two separate constitutional challenges. Tension between the teams led to conflict with constituents of the gay rights movement and influenced their relational dynamics with other parties.

Feeling at Home Outside

“…I conducted a smaller ethnographic study and published an analysis on the first set of litigation: Chua (2017). 4 For more details, see the appendix in Chua (2014).…”

“…I investigate law out of placesfrom the ground up, through fieldwork and empirical dataand try to understand people who are marginalized, seek belonging, and resist powers that try to put them in places that demean them. I have conducted ethnography on rights activism under and against authoritarian conditions in Singapore (Chua 2014) and Myanmar (Chua 2019), and I have recently begun to explore aging and the authority of family and state law. In Singapore, I found pragmatic resistance, nuanced challenges against legal power that sometimes play with, and other times play against, law itself.…”

Legal Mobilization and Authoritarianism

“…Andersen (2005) and Chua (2017) demonstrate how legal rules on standing, which determine whose lawsuits can be heard, obstruct activists from challenging the constitutionality of anti-sodomy laws in the United States and Singapore, respectively. When dissenting causes reach the courts, if judges keep issuing decisions against them, the public could perceive the judiciary as lacking independence (Moustafa 2014) or feel discouraged from courtroom litigation in the future (Chua , 2017. Even court victories can produce agenda-setting effects.…”

“…Regardless of the prospects of winning favorable judgments, some individuals and groups still launch litigation campaigns. They do so to gain media publicity to reshape portrayals of gay men (Chua 2017), educate the public about caste discrimination (Narrain & Thiruvengadam 2013), or signal to other branches of government to intervene (He 2014, Wilson 2015. Others litigate in transnational fora to apply pressure on recalcitrant states.…”

State, society, and sexuality: an inquiry on the lived experiences of lesbians and gay men in contemporary Singapore

“…Furthermore, actions bringing about dissent and mobilization in society (Chang, 2015;Chua, 2012Chua, , 2014 are restricted and prohibited. The controversial constitutional challenges to Section 377A reflect Singapore's illiberal stance towards LGBTQ+ issues (see Chen, 2021;Chua, 2017;Chen, 2013). With significant recent developments, Section 377A has been repealed (Goh, 2023;Mahmud, 2022;Lum, 2022), signifying the progression of…”