SOUTH KOREA: RULING ON LGBTI SOLDIERS A DISTRESSING SETBACK FOR HUMAN RIGHTS

The criminalization of same-sex acts between soldiers has existed since the enactment of the Military Criminal Act in 1962. Those found to have violated the law face up to two years in prison.  South Korea’s Constitutional Court ruled the clause to be constitutional in 2002, 2011 and 2016, despite a progressive trend among several countries and the UN human rights bodies that have found that laws criminalizing consensual same-sex sexual activity violate human rights

Responding to the Constitutional Court of Korea’s decision to uphold for the fourth time Article 92-6 of the 61-year-old Military Criminal Act, which criminalizes consensual same-sex sexual acts in the military constitution, Amnesty International’s East Asia Researcher Boram Jang said: 

“This continued endorsement for the criminalization of consensual same-sex acts within the Korean military is a distressing setback in the decades-long struggle for equality in the country. This ruling underscores the widespread prejudice experienced by LGBTI people in South Korea and the government’s lack of action to prevent harm and ensure equality which is their human rights responsibility.  

“Article 92-6 has institutionalized discrimination, reinforced systematic disadvantages faced by LGBTI people and risked inciting or justifying violence against them, both inside the military and in everyday life. It has no place in Korean society and should be scrapped immediately. 

“We renew our calls for South Korean lawmakers to repeal Article 92-6 of the military code now as the next step towards ending the pervasive stigmatization faced by LGBTI people in the country.”   

Background: 

The criminalization of same-sex acts between soldiers has existed since the enactment of the Military Criminal Act in 1962. Those found to have violated the law face up to two years in prison. 

South Korea’s Constitutional Court ruled the clause to be constitutional in 2002, 2011 and 2016, despite a progressive trend among several countries and the UN human rights bodies that have found that laws criminalizing consensual same-sex sexual activity violate human rights.  

The momentum for reform picked up in 2022, when the Supreme Court reversed the lower court’s convictions of two soldiers under Article 92-6. The Court ruled that if same-sex sexual acts took place off base, while the soldiers were off duty and by mutual consent, the Act does not apply. It further found that criminalization of these acts would unreasonably violate soldiers’ right to sexual autonomy and deny their rights to non-discrimination, equality and dignity, as well as their right to pursue happiness guaranteed in the Constitution. 

Amnesty International’s report Serving in Silence: LGBTI People in South Korea’s Military  in 2019, revealed the destructive impact on LGBTI people caused by the criminalization of consensual same-sex activity in South Korea’s military.  

The report demonstrated how soldiers experience discrimination, intimidation, violence, isolation and impunity as a direct or indirect result of the criminalization of sex between men in the military. It also examined how diversity based on sexual orientation and gender identity is actively discouraged in the military, creating a culture of prejudice, stigma and discrimination  for those who do not conform to strict societal gender norms.