In a setback for lesbian, gay, bisexual, and transgender (LGBT) rights, South Korea’s Constitutional Court has upheld the article of the country’s Military Criminal Act that prohibits same-sex activity between soldiers and allows for punishments of up to two years in prison.
South Korea’s Constitutional Court has considered four challenges to article 92-6 since 2002, and has upheld the discriminatory provision each time.
In a welcome ruling last year, the Supreme Court overturned the convictions of two men who had been prosecuted under article 92-6 for having consensual sex in a private setting while off duty. In that case, the court explained how enforcement of the law jeopardized the soldiers’ autonomy, dignity, and equality.
Advocates were hopeful that the Constitutional Court would similarly recognize the discriminatory nature of the law, but it did not do so.
This matters in part because, in South Korea, men are required to perform military service after they turn 18 years old, regardless of their sexual orientation.
Additionally, the court’s decision to preserve article 92-6 unjustly casts LGBT soldiers as a threat to military readiness and sends a discriminatory signal that they are a problem for the armed forces.
The ruling is also a blow for LGBT rights in South Korea more generally. Discrimination is widespread in contexts like education. Support for LGBT rights in parades, festivals, and other public means have been met with interference by local officials, protests, and even violence. While polling suggests broad support for LGBT-inclusive nondiscrimination legislation, lawmakers have repeatedly failed to enact such legislation into law, and legislative efforts to recognize same-sex partnerships and families have not borne fruit.
The disappointing ruling from the Constitutional Court only underscores the need for action from South Korea’s National Assembly. In the meantime, prosecutors should drop prosecutions for consensual same-sex conduct in the military and take concrete steps to promote equal treatment of LGBT soldiers.
It is long past time for South Korea to ensure basic equality for LGBT people – from repealing archaic bans on same-sex activity to passing a comprehensive anti-discrimination law – and to meet its obligations under international law.