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Dismay as South Korea upholds military ‘sodomy law’ for fourth time

South Korea’s constitutional court has upheld two anti-LGBTQ+ laws including the country’s notorious military “sodomy law” for the fourth time, in a ruling activists are calling a setback for equality rights.

The court, in a five-to-four vote, ruled that article 92-6 of the military criminal act, which prescribes a maximum prison term of two years for “anal intercourse” and “any other indecent acts” between military personnel, even while on leave and consensual, was constitutional in response to several petitions challenging the law.

One judge in favour of the law stated that because there were many men in the military, opportunities for same-sex sexual relations were frequent, and as such, the law was needed to maintain order and prevent same-sex sexual assault and the breakdown of the military’s combat-readiness.

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.

“While the world has been making progress in abolishing discrimination against minorities over the past 20 years, the minds of the judges have not advanced even a single step,” he said.

Amnesty International’s east Asia researcher, Boram Jang, said it was “a distressing setback in the decades-long struggle for equality in the country.

“This ruling underscores the widespread prejudice experienced by LGBTI people in South Korea and the government’s lack of action to prevent harm and ensure equality which is their human rights responsibility,” Jang said. “It has no place in Korean society and should be scrapped immediately.”

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Article 92-6 has long been a controversial law, with local and international human rights organisations, as well as the UN human rights committee, calling for its repeal.

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. The law has also faced criticism for creating barriers for victims of sexual assault within the military to come forward.

In 2017, an investigation – decried by rights groups as a “witch-hunt” – was launched to identify servicemen suspected of being gay, resulting in the indictment of a dozen soldiers. A case in 2021 criminally punished two soldiers for a consensual sexual act. At the time, a court said their actions “bordered on rape”.

Thursday’s ruling comes despite the supreme court’s decision to overturn article 92-6 convictions.

Separately, the constitutional court ruled that an article in the Aids prevention act that criminalises the transmission of HIV infection was also constitutional.

The ambiguous law, enacted during the Aids panic in the late 1980s, has been criticised for preventing individuals living with HIV or Aids from receiving the necessary care by stigmatising them through criminalisation.

Rainbow Action, an umbrella of LGBTQ rights organisations, said that the court’s failure to rule the sodomy and HIV-stigma laws unconstitutional meant “it had not fulfilled its responsibility to protect the rights of minorities”.

“The fight is far from over,” it said.