South Korean court upholds ban on gay sex in military, in setback for LGBTQ community

South Korea’s Constitutional Court has upheld a law banning same-sex relations in the military, citing a threat to combat-readiness, in a judgment decried by the local LGBTQ community as a disappointing setback.

In a 5-4 ruling on Thursday, the court refused to declare as unconstitutional a clause in the Military Criminal Act that bans “anal intercourse” or “any other indecent act” during service and allows for punishments of up to two years in prison.

Though the law does not explicitly refer to same-sex relationships, this is how it is generally understood in practice and the law has long been opposed by LGBTQ activists who see it as discriminatory.

In the past, the law has been used to arrest dozens of people in what critics have called a “gay witch-hunt.”

The court said in its judgment Thursday that allowing same-sex relations between soldiers would jeopardize the army’s discipline and potentially upend its hierarchy.

“Even if sexual acts are consensual” they risk “causing serious harm to preserving the fighting power of the nation’s armed forces, if committed (while on duty),” it added.

Four dissenting judges, however, concluded the language of the article is “abstract and ambiguous,” while three of them also cautioned against limiting an individual’s sexual orientation in the name of “military discipline.”

It is “unclear” whether the law banned “indecent acts” only between same-sex soldiers or also between male and female ones, they added.

‘A distressing setback’

Activist group Rainbow Action Against Sexual-Minority Discrimination said the ruling was disappointing and criticized the court for failing to protect the rights of the minority.

But the group said it was encouraged by the comments of the dissenting judges, who warned against deeming sexual acts between same-sex couples as abnormal.

The dissenting judges said there is “no reason” to differentiate between consensual sexual acts by same-sex soldiers and heterosexual ones.

“This is clearly highlighting the indecent act provision of the Military Criminal Act as discriminatory against sexual minorities,” the group stressed.

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.”

The researcher said the ruling underscored the widespread prejudice sexual minorities face in South Korea and the government’s lack of action to protect them by pushing for greater equality.

With a mandatory military service imposed on almost all able-bodied men between the age of 18 and 28, South Korea has one of the world’s largest active armies.

The present case, one of the few that has come before the South Korean courts, was referred to the constitutional branch by district courts after they found that there may be room for a constitutional challenge on the potentially ambiguous phrase “any other indecent act.”

Resistance to change

While South Korea does not legally recognize same-sex marriage, activists say there has been progress on LGBTQ rights in recent years.

In a landmark ruling in February, a court ruled in favor of a same-sex couple seeking equal health benefits. The decision was hailed by supporters and activists as the first recognition of the legal rights of such couples.

The plaintiff, So Seong-wook, took legal action after the government-affiliated National Health Insurance Service started charging him premium payments despite his status as a “spouse dependent” of his male partner.

But there has also been a surge of resistance from Christian and conservative groups in recent months.

In May, South Korea’s biggest LGBTQ pride celebration, Seoul Queer Culture Festival failed to get a licence to operate at its annual venue, which was used for a Christian youth concert instead.

A month later, scuffles broke out in the city of Daegu as local officials led by the mayor clashed with police during a protest against the Daegu Queer Culture Festival.

Opponents including Christian organizations had tried and failed to get a court injunction against the festival, which Mayor Hong Joon-pyo had criticized for “instilling the wrong sexual culture in teenagers.”