The highest court in South Korea has once again confirmed two laws that are discriminatory towards the LGBTQ+ community, including the military’s “sodomy law.” This decision has been criticized by activists as a step backwards in achieving equality.
In a vote of five to four, the court declared that article 92-6 of the military criminal act is constitutional. This article states that military personnel can face up to two years in prison for engaging in “anal intercourse” or “any other indecent acts,” even if it is consensual and occurs while on leave. The ruling came as a response to multiple petitions questioning the validity of this law.
A judge who supported the law argued that the high number of men in the military made it common for same-sex sexual activities to occur. Therefore, the law was necessary to uphold discipline and prevent same-sex assault and disruption of the military’s readiness for combat.
Lim Tae-hoon, head of the Center for Military Human Rights Korea, which provides assistance to soldiers including those accused of breaking the anti-sodomy law, said the decision was “absurd, illogical, regressive and driven by prejudice.
According to him, although there has been advancement in eliminating discrimination against minorities globally in the last two decades, the attitudes of judges have not progressed at all.
Boram Jang, the east Asia researcher for Amnesty International, stated that this was a frustrating obstacle in the ongoing fight for equality in the nation.
Jang stated that this decision highlights the prevalent discrimination faced by LGBTI individuals in South Korea and the failure of the government to take action in order to prevent harm and promote equality, which is their duty to protect human rights. He emphasized that this mindset has no place in Korean culture and should be eliminated immediately.
The law known as Article 92-6 has been the subject of much controversy, with both local and international human rights groups, as well as the UN human rights committee, advocating for its removal.
The rule has been unfairly enforced to penalize homosexual soldiers, regardless of their actions, in a traditional society where homosexuality is commonly viewed as forbidden or even a psychological problem. The law has also received backlash for hindering victims of sexual assault in the military from speaking out.
In 2017, an inquiry was initiated to uncover members of the military who were believed to be homosexual. This investigation, which was heavily criticized by human rights organizations, led to the prosecution of twelve soldiers. In 2021, two soldiers were convicted for engaging in a consensual sexual act. The court deemed their actions to be close to rape.
Thursday’s verdict was issued despite the supreme court’s overturning of convictions under article 92-6.
Furthermore, the constitutional court upheld the constitutionality of an article within the Aids prevention act that deems the transmission of HIV infection as a criminal offense.
The law, which was passed during the Aids scare of the 1980s, has faced backlash for impeding access to necessary care for those living with HIV or Aids by stigmatizing them through criminalization.
According to Rainbow Action, a collective of LGBTQ rights groups, the court’s decision not to declare the sodomy and HIV-stigma laws unconstitutional shows that it has not fulfilled its duty to safeguard the rights of marginalized communities.
The battle is not yet won, it declared.