Military /

South Korean Court Upholds Military Sodomy Ban

Article 92-6 of the Military Service Act has been upheld on three prior occasions

A constitutional court in South Korea upheld a ban on homosexual contact among members of the military.

The challenge marks the fourth time since 2002 the law has been upheld by the court.

In its 5-4 ruling on Oct. 26, the court expressed concern about military readiness as same-sex relationships could undermine discipline and impede a unit’s combat readiness, per Reuters. The court’s decision permits “anal intercourse” and “any other indecent acts” between members of the military to be prosecuted as a violation of military law.

Anyone convicted of the crime can be sentenced to up to two years in prison.

The ruling was denounced by advocates with a more progressive view of romantic and sexual relationships.

Lim Tae-hoon, head of the Center for Military Human Rights Korea, said in a translated statement that the ruling is a “degenerative decision that was obsessed with prejudice” and ignores “how the world works and how the law works.”

“History will smartly remember the names of you who have extended the age of barbarism,” said Lim. 

Critics of the policy, known as Article 92-6, argue it has been used to broadly discriminate.

The law has been indiscriminately applied to punish and out gay soldiers, regardless of any sexual act, in a conservative society where being gay is often considered taboo or even a medical condition,” states The Guardian. “The law has also faced criticism for creating barriers for victims of sexual assault within the military to come forward.”

The United Nations Human Rights Watch has called on South Korea to terminate the restriction since 2019. 

The laws and jurisprudence of the Republic of Korea should comply with its international human rights obligations by decriminalizing same-sex activity in the military and by ending discrimination against lesbian, gay, bisexual, and transgender (‘LGBT’) persons in the military,” the group wrote in an amicus brief submitted to the court. 

“Article 92-6 violates the rights of LGBT persons in two distinct ways. First, it violates the substance of fundamental rights,” the organization stated. “Second, it discriminates against service members based on their sexual orientation. The criminalization per se of consensual adult same-sex conduct is a violation of the right to privacy under international law.”

Men in South Korea are constitutionally obligated to enlist in the military at some point between the ages of 18 and 23. There are a limited number of circumstances under which exceptions are granted.

In 2020, South Korea discharged a biologically male soldier who began to identify as a transgender woman. Staff Sergeant Byun Hee-soo had wanted to continue serving in the military after undergoing genital alteration surgery.

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