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South Korean soldiers at a marine base in Gimpo, South Korea, on June 10, 2016. © 2016 Reuters

(Seoul) – South Korea’s law that bans same-sex conduct for soldiers violates its international human rights obligations and should be repealed, Human Rights Watch said in an amicus brief submitted to the country’s Constitutional Court.

Domestic and international human rights groups have challenged the discriminatory law, which has been used to punish sexual acts among servicemen with up to two years in prison under a “disgraceful conduct” clause – regardless of consent and whether they have sex within or outside of military facilities.

“South Korea’s military sodomy law is a blight on the country’s human rights record and multiple human rights bodies have called for its abolition,” said Graeme Reid, the lesbian, gay, bisexual, and transgender (LGBT) rights director at Human Rights Watch. “Criminalizing adult consensual same-sex conduct should be relegated to the history books – it has no place in Korean society.”

In its amicus brief, Human Rights Watch explains how article 92-6 violates internationally protected rights including the rights to privacy, against arbitrary detention, and to nondiscrimination and equality. It also says that national, regional, and international bodies have roundly rejected claims that factors such as military discipline can be used as justification for bans on same sex relations in the military.

South Korea’s 1962 Military Criminal Act’s article 92-6, the provision that bans same-sex conduct among soldiers, was upheld as recently as 2016, by the Constitutional Court in a 5-4 ruling.

The government has repeatedly defended the sodomy clause – including at the United Nations – contending that banning “indecent conduct” is necessary for maintaining discipline in the predominantly male military.

Two years of military service is compulsory for all able-bodied South Korean men. Most are drafted in their early 20s, and expulsion from service carries significant social stigma that can affect both their career prospects and family and community life.

While the government of South Korea has consistently voted to support measures at the United Nations that call for an end to violence and discrimination against LGBT people, it has failed to uphold some of those principles at home. In recent years, activists have had to fight bureaucratic battles to hold an annual pride gathering. And the government rolled out a sex education curriculum with no mention of homosexuality because, education officials said, it needed to maintain “value neutrality regarding society, culture and religion.”

South Korea’s domestic laws should comply with its international human rights obligations by decriminalizing same-sex activity in the military and by ending discrimination against LGBT people in the military.

“South Korea doesn’t criminalize same-sex conduct among consenting adult civilians, and there’s no reason it should be a crime among those serving their country whether as conscripts or professional officers,” Reid said. “The Constitutional Court has an opportunity to bring Korean law in line with international human rights standards and the global trend toward decriminalization.”


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