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 Code 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, each time upholding the discriminatory provision.
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 this case, the court explained how the enforcement of the law jeopardised the autonomy, dignity and equality of soldiers.
Advocates hoped that the Constitutional Court would similarly recognise the discriminatory nature of the law, but it did not.
This is significant, in part, because men in South Korea are required to serve in the military from the age of 18, regardless of their sexual orientation.
In addition, the court’s decision to uphold Article 92-6 unfairly portrays 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 to LGBT rights in South Korea more generally. Discrimination is widespread in areas such as education. Support for LGBT rights at parades, festivals and other public events has been met with interference from local officials, protests and even violence. While polls suggest widespread support for LGBT-inclusive anti-discrimination legislation, lawmakers have repeatedly failed to enact such laws, and legislative efforts to recognise same-sex partnerships and families have been unsuccessful.
The Constitutional Court’s disappointing ruling only underscores the need for action by 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 for 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.