South Korean Court Upholds Ban on Same-Sex Relations Within Military

South Korean soldiers take a training run as they prepare for military exercises near the city of Pohang, South Korea, on Oct. 23, 2006. (Mark Ralston/AFP/Getty Images)

The South Korean Constitutional Court has upheld for the fourth time a law that prohibits same-sex relations within the armed forces, citing the possible risk of compromising the military’s combat readiness.

South Korea’s Military Criminal Act criminalizes “anal intercourse” and “any other indecent act” between soldiers, and those who are found to have violated the law could face up to two years in prison.

In a 5–4 ruling on Oct. 26, the court deemed the law constitutional, noting that allowing same-sex relations could potentially erode discipline within the military and weaken its combat readiness.

The court also dismissed claims that prohibiting such acts among same-sex soldiers while not applying the same restrictions to opposite-sex soldiers contradicts the principles of equality, The Korea Times reported.

“Even if sexual acts were consensual, it carries the risk of causing serious harm to preserve the fighting power of the nation’s armed forces if committed in the location on duty or during the execution of duty,” it stated.

Rights groups have been urging the court to scrap what they termed an “outdated and bad” law after the Supreme Court last year overturned a military court’s conviction of two soldiers sentenced to suspended prison terms for a consensual same-sex relationship.

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Amnesty International’s East Asia researcher, Boram Jang, said the criminalization of consensual same-sex acts within South Korea’s military was “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,” Ms. Jang said in a statement.

Amnesty International called on South Korea to repeal Article 92-6 of the military code to end the “pervasive stigmatization” faced by LGBTI—which stands for lesbian, gay, bisexual, transgender, and intersex—people in the country.

“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,” Ms. Jang added.

The criminalization of same-sex acts between soldiers in South Korea has existed since the enactment of the Military Criminal Act in 1962. South Korea’s Constitutional Court ruled the clause to be constitutional in 2002, 2011, and 2016, despite a progressive trend among several countries.

In 2019, Human Rights Watch (HRW) said that Article 92-6 violates the substance of fundamental rights and discriminates against service members based on their sexual orientation.

“In addition to these violations, Article 92-6, while in theory applicable to any service member, has a clear and overwhelmingly disproportionate impact on gay men, and so discriminates on the basis of sexual orientation in violation of international law,” HRW said.

South Korea has one of the world’s largest active armies, with all able-bodied men between the ages of 18 and 28 required to serve for 18 to 21 months.

Reuters contributed to this report.