In his paper, Mr Chan notes that Section 377A criminalises acts of gross indecency between males, whether homosexual or bisexual, but not similar acts between males and females, or between females.
“If Parliament bans women, but not men, from smoking cigars, equality of all persons under Article 12 requires the state to justify the reasonableness of the ban,” said Mr Chan.This could be done on health grounds, if medical research showed women were more prone to lung cancer than men, for example.
However, the former Chief Justice noted that Section 377A was in fact enacted in 1938 to strengthen laws against male prostitution, which was “rife” according to crime reports at the time and posed serious problems to law and order, public morality and wholesome government. The decision not to repeal was based on the “misapprehension” that the section covered penetrative sex, a “hallmark of male homosexuality", he said.Furthermore, the decision not to repeal Section 377A did not affirm its purpose, said Mr Chan.
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