The Constitutional Court of South Korea had a very controversial case presented before it. The South Korea’s “guardian of constitution” had to decide whether or not a provision criminalizing sexual acts between two male soldiers,, known as “sodomy law”, is in compatibility with the Constitution. Despite the controversy associated with discrimination and inequality, the court ruled that this provision is in compliance with the Constitution.

Mandatory military service and its criticism

In South Korea all able-bodied men need to put their studies or professions on hold and perform military service. The service takes between 18 to 21 months, and is compulsory for all physically fit men between the ages of 18 and 35. Refusing mandatory service without a valid reason can be punished up to three years in jail.

South Korea and its strict military service regulation was often criticised by many human rights groups and international organisations, including the United Nations, for providing no option for men to refuse the service without facing punishment. This was considered as violating the right to freedom of thought, conscience, and religion. Finally, in 2018, South Korea's Constitutional Court intervened and ruled that the government is obliged to introduce alternative civilian service to military service . The Court stated that religious beliefs or conscience are valid reasons for refusing military service.

Controversial Article 92-6

Article 92-6 is part of the Military Criminal Act (MCA), which was enacted in 1962. It punishes sexual acts between male servicemen with up to two years in prison. This punishment will be imposed regardless of whether the sexual act was consensual or not.

The provision also banned sexual acts which occurred within or outside of military facilities. However, in 2022, the Supreme Court of South Korea ruled that the provision could not be applied to situations where servicemen are off base and off duty. In this landmark judgement, the court also reasoned that criminalization of these acts would unreasonably violate servicemen’s right to sexual autonomy and also deny their right to equality and dignity.

Despite this ruling, which was considered a major victory for the LGBTQI+ community, Article 92-6 remains very controversial. Human Rights Watch (HRW) repeatedly stated that this provision violates rights of LGBTQI+ people in two distinct ways. First, it violates the substance of fundamental rights, and second, it is discriminatory against service members based on their sexual orientation. Mainly, the provision violates the right to privacy under international law.

A similar provision was previously found in military codes of Peru, Ecuador, Germany, the United Kingdom, and the United States. However, all these states repealed it many years ago. For example, the United Kingdom and Germany changed their statutes as a response to the judgments of the European Court of Human Rights in the case of Lustig-Prean and Beckett v. the United Kingdom and in the case of Smith and Grady v. the United Kingdom.

Not even this time

After the Supreme Court’s ruling, the LGBTQI+ community had a great expectation from South Korea's Constitutional Court, which was dealing with the compatibility of Article 92-6 of the MCA with Korea's Constitution for the fourth time. In three previous judgements from 2002, 2011 and 2016, the Constitutional Court upheld the provision and ruled it constitutional.

At the end of October 2023, the Constitutional Court, in a five-to-four vote, ruled for the fourth time that Article 92-6 of the MCA is in compatibility with the Korea's Constitution and does not breach any rights or freedoms of gay soldiers. One of the judges explained that he voted for this ruling with a goal to prevent same-sex sexual assault and the breakdown of the military’s combat-readiness.

On the opposite side, the dissenting judges explain that there is no reasonable argument for distinguishing between consensual sexual acts by same-sex soldiers, which are forbidden, and heterosexual ones. They also add that, in their opinion, the provision should be ruled as discriminatory against sexual minorities.

Huge disappointment

The ruling was a huge disappointment for many people. ”The world has advanced toward the elimination of LGBT discrimination, but the minds of Constitutional Judges have not taken a single step forward,“ said Lim Tae-hoon, the head of the Centre for Military Human Rights Korea. Many people urged the National Assembly to repeal this archaic provision.

It is apparent that there is a clash of opinion between the Korean Supreme and Constitutional Court. While the Supreme Court ruled in a more liberal way, protecting the rights of minorities, including gay soldiers, but also transgender people, the Constitutional Court has so far resisted any changes.

Boram Jang, Amnesty International East Asia researcher, points out that the ban means ”institutionalised discrimination, reinforced systematic disadvantages faced by LGBT people and risked inciting or justifying violence against them, both inside the military and in everyday life”.

Finally, it shows the persistent struggles of same-sex couples in Korea. Despite the fact that homosexuality is legal,  discrimination still remains widespread. For example, South Korea does not recognise same sex marriages,civil unions or registered partnerships. But in this way, South Korea could progress In May, lawmakers have proposed the first same-sex marriage bill to the Parliament. However, how the Parliament will vote is yet to be decided. 

 

Sources

Guinto, J. (2023, October 27). South Korea court upholds ban on gay sex in the military. BBC News. Retrieving from https://www.bbc.com/news/world-asia-67236048.  

Rashid, R. (2023, May 31) South Korea’s first ever same-sex marriage bill goes to parliament. The Guardian. Retrieved from https://www.theguardian.com/world/2023/may/31/south-koreas-first-ever-same-sex-marriage-bill-goes-to-parliament.  

Rashid, R. (2023, October 26). Dismay as South Korea upholds military ‘sodomy law’ for fourth time. The Guardian. Retrieving from https://www.theguardian.com/world/2023/oct/26/south-korea-upholds-controversial-military-sodomy-law-for-fourth-time.  

Repealing Article 92-6 of the Republic of Korea’s Military Criminal Act. Amicus Brief to the Honorable Justices of the Constitutional Court of Korea (2019, March 07). Human Rights Watch. Retrieved from https://www.hrw.org/news/2019/03/07/repealing-article-92-6-republic-koreas-military-criminal-act#_ftn3.

South Korea: Landmark judgement on same-sex sexual acts in military a huge victory for LGBTI rights (2022, April 21). Amnesty International. Retrieved from https://www.amnesty.org/en/latest/news/2022/04/south-korea-landmark-judgement-on-same-sex-sexual-acts-in-military-a-huge-victory-for-lgbti-rights/.

South Korea: Supreme Court ruling on legal gender recognition an important step forward for transgender rights (2022, November 24). Amnesty International. Retrieving from https://www.amnesty.org/en/latest/news/2022/11/south-korea-supreme-court-ruling-on-legal-gender-recognition-an-important-step-forward-for-transgender-rights/.  

Thoreson, R. (2023, June 01). Marriage Equality Gets a Boost in South Korea. Human Rights Watch. Retrieved from https://www.hrw.org/news/2023/06/01/marriage-equality-gets-boost-south-korea.

Thoreson, R. (2023, October 30). South Korean Court Upholds Military ‘Sodomy’ Law. Human Rights Watch. Retrieving from https://www.hrw.org/news/2023/10/30/south-korean-court-upholds-military-sodomy-law.  

Photograph

Controversial provision prohibits sexual activities between male soldiers. 2014.8.26 GOP 통신병 Republic of Korea Army 6th Infantry Division, autor: 대한민국 국군 Republic of Korea Armed Forces, 촬영 : 임영식, 26 August 2014, Flickr, CC BY-SA 2.0 DEED, edits: cropped.