On Thursday, October 26, South Korea’s constitutional court voted five to four to uphold a law banning same-sex relationships in the military armed forces.

In South Korea, all men between the ages of 18 and 28 are required to serve in the military for at least 18 months. Under the Military Criminal Act, members of the armed forces who are found in a same-sex relationship can face up to two years in prison.

While the law explicitly prohibits “anal intercourse”, it is generally understood to apply to all same-sex relationships. The law has been used to arrest dozens of men serving in the military.

Four of the judges dissented, stating that the language is “abstract and ambiguous” and highlighted concern over controlling an individual’s sexual orientation. Dissenting judges emphasised that there is “no reason” to differentiate between consensual sex between gay soldiers and heterosexual soldiers.

To justify their decision, the court claimed that allowing same-sex relationships could impact the military’s combat readiness. Since 2002, the court has reviewed and upheld the law four times. 

Breaking: South Korea’s constitutional court has just ruled that the country’s notorious military anti-gay law, also known as the ‘sodomy law’, is constitutional, thus upholding the law for the 4th time.

— Raphael Rashid (@koryodynasty) October 26, 2023

The ruling has been heavily criticised by activists, who say the outdated law is a major setback for LGBTQ+ rights and will likely fuel continued widespread discrimination against queer soldiers.

Amnesty International’s East Asia researcher, Boram Jang, said in a statement: “This continued endorsement for the criminalisation of consensual same-sex acts within the Korean military is a distressing setback in the decades-long struggle for equality in the country”. Jang added that the ruling risks justifying violence against LGBTQ+ people “both inside the military and in everyday life.”

While same-sex relationships between civilians have been decriminalised since 2003 in South Korea, same-sex marriage is still not recognised, and LGBTQ+ identities are widely stigmatised.

In February of this year, the court ruled in favour of a same-sex couple seeking equal health benefits. The ruling entitles same-sex couples to the same national health insurance coverage as heterosexual couples. It was described as the first recognition of legal rights for same-sex couples in South Korea.