The constitutional court of South Korea has once again approved two laws that discriminate against the LGBTQ+ community, including the infamous “sodomy law” in the military. This decision is being viewed as a setback for the fight for equality.
The court voted five to four to uphold article 92-6 of the military criminal act. This article states that military personnel can face a maximum prison sentence of two years for engaging in “anal intercourse” or “other indecent acts,” even if it is consensual and occurs while on leave. The ruling was made in response to multiple petitions questioning the constitutionality of the law.
One supporter of the law argued that the large number of men in the military led to frequent instances of same-sex sexual activity. Therefore, the law was necessary to uphold discipline and prevent same-sex sexual assault, which could compromise the military’s readiness for combat.
Lim Tae-hoon, the leader of the Center for Military Human Rights Korea, which offers support to soldiers, including those charged with violating the anti-sodomy law, expressed that the ruling was “ridiculous, nonsensical, backwards, and influenced by bias.”
He stated that although there has been improvement in eradicating discrimination against minority groups in the last two decades, the attitudes of judges remain unchanged.
Boram Jang, the east Asia researcher for Amnesty International, described it as a “disheartening step backwards in the ongoing battle for equality in the nation.”
Jang stated that this decision highlights the prevalent discrimination faced by LGBTI individuals in South Korea and the government’s failure to take action to prevent harm and promote equality, which is their responsibility to protect human rights. He also expressed that this ruling has no place in Korean society and should be abolished promptly.
The repeal of Article 92-6, a contentious law, has been urged by various human rights groups and the United Nations human rights committee.
The legislation has been unfairly enforced to penalize homosexual soldiers, regardless of their actions, in a traditional culture where homosexuality is typically seen as unacceptable or even a psychological issue. The legislation has also received backlash for hindering victims of sexual assault in the military from speaking out.
In 2017, an inquiry was initiated to identify soldiers believed to be homosexual, which was criticized by human rights organizations as a “witch-hunt”. This led to the indictment of twelve soldiers. In 2021, two soldiers were criminally convicted for engaging in consensual sexual activity. The court deemed their actions to be “bordering on rape” at the time.
The decision made on Thursday goes against the supreme court’s overturning of convictions under article 92-6.
The constitutional court made a separate ruling on an article in the Aids prevention act that deems the transmission of HIV infection a criminal offense, stating that it is constitutional.
The law, which was passed during the Aids scare of the 1980s, has been denounced for discriminating against people with HIV or Aids and hindering their access to essential care.
Rainbow Action, a coalition of advocacy groups for LGBTQ rights, stated that the court’s decision to not declare the sodomy and HIV-stigma laws as unconstitutional indicates that it has not properly fulfilled its duty to uphold the rights of marginalized communities.
The battle is not yet finished, it stated.