Chapter II, art. 10 of the Constitution of the Republic of Korea states, regarding the rights and duties of citizens, the protection of human worth and dignity as well as the right to pursue happiness. Along with this, art. 11 is relevant as it determines the equality of citizens before the law with no discrimination on political, economic, societal or cultural life on account of sex, religion or social status. Accordingly, same-sex relationships are not illegal in the Republic of Korea.
However, ‘sodomy’ is criminalised when committed by a member of the Korean Military. According to article 92-6 of the Military Criminal Act, ‘A person who commits anal intercourse with any person prescribed in Article 1(1) through (3) or any other indecent act shall be punished by imprisonment with labour for not more than two years’.Art. 1 of the Military Criminal Act states that the persons subject to the application of this Act, regarding art. 92-6, are military persons of the Republic of Korea who perpetrate a crime specified in this Act. Art. 1 also specifies that the term “military person” means any officer, warrant officer, non-commissioned officer, and enlisted soldier who is in active service and that the scope of application of the indecent act applies to civilian employees of the military and students registered in the military register and currently enrolled in a military school, an officer candidate, a non-commissioned officer candidate, or a student who is registered in the military service according to art. 57 of the Military Service Act.
Although same-sex relationships are not banned, same-sex marriage is not yet recognised, as per the Korean Civil act. Additionally, the framework act on healthy families in art. 3 gives a restrictive definition of ‘family’ when it states that it can only be formed by marriage, blood or adoption. This comes as controversial and troubling for the recognition of other forms of families including the LGBTI community as they are not included in the definition of ‘family’ in South Korea. On this note, same-sex adoption is also not permitted.
Regarding transgender rights, Statewatch has identified that people can legally change their gender. However, one of the requirements to do so is having gender reassignment surgery, which makes it even harder for transgender people that have not done it, and unfortunately, the national health insurance system does not cover this surgery.
Currently, there is no anti-discrimination law enforced.
According to Stonewall, in 2011, the Supreme Court ruled that same-sex marriage is not legal, thus there is still no legal recognition of same-sex marriage in South Korea. Following this, in 2021, a same-sex couple filed a lawsuit against South Korea’s national health insurance agency as their benefits were cancelled shortly after successfully registering their marriage. With this lawsuit, the couple wanted to restore the registration of their marriage and claim the rights that come with it. However, the couple lost the lawsuit and their rights were not restored. See the full article here.
Over the matter of the criminalisation of ‘sodomy’ in the military, Human Rights Watch stated that there have not been any cases where the military investigated or convicted heterosexual people for the violation of article 92-6, thus urging the Constitutional Court to revise this provision as it is not consistent with the Constitution of the Republic of Korea and the government’s obligation under international law. A recent Amnesty International report highlighted a landmark judgement on same-sex sexual acts in the military, where the Supreme Court reversed the convictions of two soldiers for engaging in consensual same-sex sexual acts while off duty.
In 2021, another landmark decision for transgender rights in the military was recognised. A transgender soldier got dismissed in 2020 due to their gender reassignment surgery, on the grounds of being unfit for service. However, the court later ruled that the military unlawfully discriminated against them. See the full report here.
Recently, South Korea ruled in favour of a Malaysian transgender seeking asylum in the country. According to news reports, the person ‘was arrested for behaving and dressing as a woman during a wedding ceremony, and sentenced with fines and a seven-day detention period under Sharia law which is applicable in Muslim-majority Malaysia’. In 2017, the asylum application in South Korea was rejected as the court stated that the person had not suffered persecution. However, the high court later found grounds of a well-founded fear of persecution, and thus granted them protection under the Refugee Convention.
Public attitudes and/or the State’s capacity to protect
In 2018, more than 210,000 South Korean citizens signed a petition to their president demanding the cancellation of the “abominable” gay pride parade. Homosexuality was still described as perversion and obscenity, although it was declassified as “harmful and obscene” by the Youth Protection Committee in 2003.
According to a 2021 global survey by Ipsos, only 54% of the South Korean public supports same-sex marriage, and only 46% supports the right of same-sex couples to adopt. These percentages were considerably lower in the previous decade. Furthermore, a staggering 79.6% said they would not like to have homosexual neighbours, and 61.4% think homosexuality is “not justifiable”, according to the World Values Survey 2017-2020. These findings can be found summarised here by Equaldex.
The Pew Research Centre report states that overall the acceptance of the LGBTI community has increased in South Korea, translating to 79% of acceptance among groups of people aged between 18 to 29 years. Nonetheless, severe discrimination still exists against people part of the LGBTI community, especially in the military, as stated by the Human Rights Watch 2022 country report on South Korea.
South Korean law prohibits discrimination based on sex, religion, or social status; yet it does not explicitly prohibit discrimination based on sexual orientation, or gender identity. According to the US State Department, the National Human Rights Commission of Korea repeatedly attempted to adopt a comprehensive anti-discrimination law, but these attempts were thwarted by conservative Christian political groups. Besides, the NHRCK does not have the power to enforce penalties for violence or discrimination against LGBTI, and its recommendations are non-binding, according to the National Queer Asian Pacific Islander Alliance.
A 2021 Human Rights Watch report highlighted the magnitude of bullying, harassment, and violence LGBTI students are facing in South Korean schools by other students and teachers alike. The comprehensive report relies on interviews with students who experienced isolation or were outed, sometimes even by the teachers they had asked for support. Transgender students faced further discrimination as there is no recognition of their gender identities.
Human Rights Watch raised concerns regarding the lack of inclusion of same-sex couples in South Korea’s definition of family, as this ‘narrow interpretation of family has sidelined many people from seeking welfare programs’ as well as the difficulty to access financial support. The lack of protection for same-sex marriage has led couples to still held symbolic weddings, even though they are not formally recognized unions. For the full report click here.
According to a report published by the UCLA Williams Institute, the ‘public discourse about the transgender population in South Korea grew dramatically at the beginning of the 21st century’ thanks to the visibility that they have been having and their possibility of legally changing their gender. However, discrimination is still highly suffered, especially in terms of adoption.
Non-Governmental Organisations (NGOs)
Asunaro is a youth rights organization based in South Korea which promotes the creation of an equal society, free from discrimination and violence, where youth rights are guaranteed.
HaengSeongIn is a South Korean LGBT human rights advocacy group. It campaigns for LGBT equality, organises workshops and forums for LGBT communities and runs a resource centre.
The Korean Society of Law and Policy on Sexual Orientation and Gender Identity created a larger list of LGBTI organisations sorted by different categories, available here.
Country of Origin Specialists
We do not currently list a specialist in LGBTI issues in South Korea, but we welcome suggestions at firstname.lastname@example.org.