South Korean Court Affirms Anti-LGBTQ Policy, Upholding Ban on Gay Sex in Military

The Constitutional Court of South Korea has upheld a law that prohibits same-sex relationships in the military, stating concerns about combat readiness. This decision has been criticized by the local LGBTQ community as a disappointing setback. In a close 5-4 ruling on Thursday, the court declined to deem as unconstitutional a provision in the Military Criminal Act that forbids "anal intercourse" or "any other indecent act" while serving and permits penalties of up to two years of imprisonment.

Although the law does not specifically mention same-sex relationships, it is widely interpreted as such in everyday practice. LGBTQ activists have long criticized this law as discriminatory, citing numerous cases where it has been invoked to unjustly target individuals in what has been labeled as a "gay witch-hunt."

In its Thursday judgment, the court stated that permitting same-sex relationships among soldiers could compromise the discipline of the army and potentially disrupt its hierarchy. It further emphasized that even consensual sexual acts, if engaged in while on duty, pose a significant threat to maintaining the fighting capability of the country's armed forces.

Four judges who disagreed with the majority argued that the article's language is too vague and open to interpretation. Additionally, three of these judges warned against using military discipline as a reason to restrict a person's sexual orientation. They also pointed out that it is not clear whether the law prohibited "indecent acts" solely among soldiers of the same sex or if it also included interactions between male and female soldiers.

A distressing setback

The court's ruling has been met with disappointment by Rainbow Action Against Sexual-Minority Discrimination, who have voiced their criticism regarding the court's failure to safeguard the rights of the minority.

The group found encouragement in the dissenting judges' remarks, cautioning against stigmatizing sexual acts between same-sex couples as abnormal. According to the dissenting judges, there is "no justification" for distinguishing between consensual sexual acts involving same-sex soldiers and heterosexual ones.

The group emphasized that the provision in the Military Criminal Act, which highlights indecent acts, is clearly discriminatory against sexual minorities. Amnesty International's East Asia Researcher, Boram Jang, expressed distress over the ongoing support for the criminalization of consensual same-sex acts among Korean military personnel, considering it a setback in the country's long-standing fight for equality.

The researcher highlighted the pervasive bias experienced by sexual minorities in South Korea, emphasizing the government's failure to address this issue and promote equal rights. South Korea, renowned for having one of the world's largest active armies, enforces compulsory military service for nearly all able-bodied men aged 18 to 28.

Resistance to change

The South Korean courts have received only a handful of cases similar to the present one, which has been passed on to the constitutional branch by district courts. These lower courts identified the possibility of a constitutional challenge regarding the vague wording of "any other indecent act."

South Korea, despite its lack of legal recognition for same-sex marriage, has made strides in LGBTQ rights according to activists. Recently, a significant breakthrough occurred when a court granted a same-sex couple equal health benefits, marking the first acknowledgment of legal rights for these couples and garnering praise from supporters and advocates.

The plaintiff, So Seong-wook, filed a lawsuit following the imposition of premium payments by the government-affiliated National Health Insurance Service. This was despite his classification as a "spouse dependent" of his male partner. However, there has been a recent increase in opposition by Christian and conservative groups.

South Korea's largest LGBTQ pride event, the Seoul Queer Culture Festival, was denied a permit to hold its annual celebration at its usual venue in May. Instead, the location was allocated for a Christian youth concert. In another incident a month later, clashes erupted in Daegu when local officials, led by the mayor, clashed with the police during a protest against the Daegu Queer Culture Festival.

Christian organizations and other opponents attempted, but were unsuccessful, in securing a court injunction against the festival. Mayor Hong Joon-pyo criticized the event for "promoting an inappropriate sexual culture among teenagers."